Ct)e  lilitatp 

of  t^e 

Onitiersitp  of  JI3ottl)  Carolina 


CoIUctton  ot  jl^ortl)  Catoltntana 

^nSotDeli  bE 

3ogn  g)ptunt  !^tll 

of  tl)e  €Iai3j3  of  1S89 

C345.e 
1905" 


mi' 


MC  AT  CHAPEL 


00022387418 


This  book  may  be  kept  out  one  month  unless  a  recall 
notice  is  sent  to  you.  It  must  be  brought  to  the  North 
Carolina  Collection  (in  Wilson  Library)  for  renewal. 


Form  No  A  369 


REVISAL  OF  1905 


NORTH    CAROLINA 


PREPARED  UNDER  CHAPTER  THREE  HUNDRED  AND  FOURTEEN 

OF  THE  LAWS  OF  ONE  THOUSAND  NINE 

HUNDRED  AND  THREE 


THOMAS  B.  WOMACK,   hh.  D.,  NEEDHAM  Y.  GULLEY, 
WILLIAm'b.   RODMAN 

AND  ENACTED  AS  A  LAW  AT  THE  SESSION  OF  THE  GENERAL  ASSEMBLY 
OF   ONE   THOUSAND   NINE   HUNDRED   AND   FIVE 


IN    TWO    VOLUPvIES 

VOLUME   ONE 


/ 


RALEIGH 
E.  M.  UzzELL  &  Co..  Printers  and  Bint 
1905 


Copyrighted  lOOo  by 

T.    B.    WOMACK,    N.    Y.    GULLEY   AND    W.    B.    RODMAN 

FOE  THE  State  of  North  Carolina. 

C  3HS.9L 


TABLE  OF  CONTENTS. 


VOLUME   ONE. 


CHAPTERS. 


1. 

Administration. 

2. 

Adoption  of  Minok  Children. 

3. 

Aliens. 

4. 

Apprentices. 

5. 

Attorneys  at  Law. 

6. 

Auctioneers. 

7. 

Banks. 

8. 

Bastardy. 

9. 

Bonds. 

10. 

Boundaries. 

11. 

Burnt  and  Lost  Records. 

12. 

Civil  Procedure. 

13. 

Clerks  Superior  Court. 

14. 

Commissioners  of  Affidavits. 

15. 

Common  Lav?. 

16. 

Constables. 

17. 

CONTEJIPT. 

18". 

Conveyances. 

19. 

Coroners. 

20. 

Corporation  Commission. 

21. 

Corporations. 

22. 

Costs. 

23. 

County  Commissioners. 

24. 

County  Prisons. 

25. 

County  Revenue. 

2G. 

County  Treasurer. 

27. 

Courts — .Justices'. 

28. 

Courts — Superior. 

29. 

Courts — Supreme. 

30. 

Descents. 

31. 

Divorce  and  Alimony. 

32. 

Electric  Companies. 

33. 

Estates. 

34. 

Evidence. 

35. 

Fences  and  Stock  Law. 

36. 

Gaming  Contracts. 

37. 

Grants. 

38. 

Guardian. 

39. 

Habeas  Corpus. 

CONTENTS  OF  VOLUME  ONE. 

40.  Hunting. 

41.  Idiots,  Inebriates  and  Lunatics. 

42.  Innkeepers. 

43.  Insolvent  Debtors. 

44.  Interest. 

45.  Jurors. 

4G.  Landlord  and  Tenant. 

47.  Libel  and  Slander. 

48.  Liens. 

49.  Liquors. 

50.  Marriage. 

51.  Married  Women. 

52.  Mills. 

53.  Names  op  Persons. 

54.  Negotiable  Instruments. 

55.  Notaries. 

56.  O.^THS. 

57.  Officers. 

58.  Oysters  and  Fish. 

59.  Partition. 

60.  Partnership. 

61.  Railroads. 

02.  Register  of  Deeds. 

63.  Religious  Societies. 

64.  Restoration  to  Citizenship. 

65.  Roads,  Bridges,  Ferries. 

66.  Salaries  and  Fees. 

67.  Sheriff. 

OS.  Statutes,  Construction  of. 

69.  Strats. 

70.  Sunday  and  Holidays. 

71.  Surety. 

72.  Taxes,  Collection  of. 
7.3.  Towns. 

74.  Trademarks. 

75.  Warehousemen. 

76.  Water  Supplies. 

77.  Weights  and  Measures. 

78.  Widows. 

79.  Wills. 

80.  Criminal  Procedure. 

81.  Crimes. 

Table  of  Comparative   Section  Numbehs. 
Index. 


TABLE  OF  CONTENTS. 


VOLUME  TWO. 


CHAPTEES. 


82. 

Agricultural  Societies  and  Fairs. 

83. 

BUELDING  AND  LOAN   ASSOCIATIONS. 

84. 

Bureau  of  Lador  and  Printing. 

85. 

Charities. 

80. 

CoNIEDERATE    ilONUMENTS. 

87. 

Department  of  Agriculture. 

88. 

Drainage. 

89. 

Education. 

90. 

Elections. 

91. 

Embalmers. 

92. 

Fireman's  Relief  Fund. 

93. 

General  Assembly.                   -     - 

94. 

Geological  and  Economic  Survey. 

95. 

Health. 

9H. 

Historical  Coiimission. 

97. 

Hospitals  for  Insane. 

98. 

Impeachment. 

99. 

Inspection. 

100. 

Insurance. 

101. 

Internal  Improvements. 

102. 

Militia. 

103. 

Mines. 

104. 

Navigation. 

105. 

Pensions. 

100. 

PuiiLic  Buildings  and  (Jkounds. 

107. 

Public  Debt. 

108. 

Public  Libraries. 

109. 

Public  Printing. 

110. 

Revenue  and  Machinery. 

111. 

Rivers  and  Creeks. 

112. 

Soldiers'  Home. 

113. 

State  Boundaries. 

114. 

State  Flag.  etc. 

115. 

State  Officers. 

IIG. 

State's  Prison. 

117. 

Trained  Nurses. 

lis. 

United  States  Lands. 

119. 

Veterinary  Board. 

120. 

AVkecks. 

121. 

Concerning  these  Revised  Statutes 

APPENDIX. 

Constitution  of  the  United  States. 
Constitution  of  North  Carolina. 
Authentication  of  Records. 
Naturalization  of  Aliens. 
Removal  of  Causes. 
Index. 


PREFACE. 

The  preface  to  the  Revised  Statutes,  prepared  bv  ^Messrs.  James 
Iredell  and  William  H.  Battle,  contains  a  brief  history  of  legislation 
in  ]!^orth  Carolina  from  the  "Grand  Assembly  of  the  Connty  of 
Albemarle,"  which  convened  in  1666  or  1667,  to  the  legislation  which 
resulted  in  "Potter's  Revisal,"  prepared  in  1N21,  and  which  was  then 
known  as  the  "New  Revisal." 

ilr.  B.  F.  Moore  and  Judge  W.  B.  Rodman,  who  published  the 
Revised  Code  after  it  had  been  prepared  by  Messrs.  Biggs  and  Moore, 
continued  the  history  of  the  codification  of  our  statute  law  in  the 
preface  of  that  publication,  bringing  it  down  to  1S54. 

The  compilers  and  publishers  of  The  Code  in  18S3  did  not  publish 
a  preface,  and  it  may  not  be  inappropriate  to  now  bring  this  history 
down  to  the  present  time. 

In  1S6S  a  new  Constitution  of  the  State  was  adopted,  which  gi'eatly 
changed  the  State's  judicial  system  and  contemplated  a  complete 
codification  of  the  statute  laws,  and  possibly  the  unwritten  law.  By 
an  ordinance  of  the  Convention  of  1868,  Hon.  Victor  C.  Barriugcr, 
Hon.  A.  W.  Tourgee  and  Judge  William  B.  Rodman  were  appointed 
commissioners  to  carry  out  the  constitutional  provisions,  and  on 
July  15,  1868,  they  submitted  to  the  Legislature,  then  in  session,  a 
partial  report,  recommending  (1)  a  Code  of  Civil  Practise  and  Pro- 
cedure, (2)  a  Code  of  Criminal  Practise  and  Procedure,  (3)  a  Politi- 
cal Code,  (4:)  a  Civil  Code,  (5)  a  Penal  Code,  (6)  suggestions  of 
alterations,  amendments  and  revisions  of  laws  necessary  to  carry  out 
the  provisions  of  the  Constitution,  (7)  a  general  analysis  of  all  the 
Codes. 

These  commissioners  made  a  second  report  on  August  'M,  1808, 
and  as  a  result  of  their  labors  The  Code  of  Civil  Procedure  became  a 
fi.xed  part  of  our  system  of  laws,  although  it  will  now  be  known  merely 


VIII  PREFACE. 

as  the  chapter  on  Civil  Procedure  in  the  Revisal  of  1905.  Those 
gentlemen  also  [)repared  a  number  of  statutes,  which  were  in  fact 
codifications  and  are  embodied  in  the  Public  Laws  of  lS6S-'69.  They 
prepared  a  Criminal  Code,  but  it  was  never  adopted  bv  the  Legisla- 
ture. 

The  Legislature  of  187l-'72  (chapter  210)  passed  an  act  to  pro- 
vide for  the  compilation  of  the  public  statutes,  and  appointed  Judge 
William  H.  Battle  a  commissioner,  with  power  to  collate,  digest  and 
compile  all  the  ])ub]ic  statute  laws  of  the  State.  Battle's  Bevisal 
was  submitted  to  the  General  Assembly  of  1S72-'T;3,  and  Judge  Bat- 
tle was  authorized  and  directed  to  publish  it. 

Tliis  compilation  was  never  enacted  into  a  law,  and  for  that  reason 
the  Legislature,  in  eight  years  after  its  publication,  provided  for  a 
new  codification,  and  appointed  ]\Iessrs.  W.  T.  Dortch,  John  Man- 
ning and  John  S.  Henderson  to  do  the  work. 

By  a  provision  in  the  Constitution  of  1868  all  existing  laws,  not 
repugnant  to  that  instrument  or  to  the  Constitution  of  the  L^nited 
States,  were  declared  to  be  in  force.  This  made  it  necessary  for  the 
Code  commissioners  to  use  the  Revised  Code  as  the  basis  of  their 
work,  and  for  them  to  codify  all  statutes  j^rior  to  1SG8  not  repTignant 
to  the  new  Constitution,  as  well  as  those  enacted  between  lS(iS  and 
1883. 

The  Code  published  in  1883  was  the  result  of  their  labors,  and  its 
satisfactory  reception  by  the  people  of  the  State  is  attested  by  the 
fact  that  not  until  twenty  years  of  legislation  had  practically  euiascu- 
lated  it  did  tlic  laM'-making  body  provide  for  another  revision. 

By  chapter  314  of  the  Public  Laws  of  1903  the  undersigned  were 
appointed  commissioners  to  compile,  collate,  revise  and  digest  all  the 
public  statute  laws  of  the  State.  They  M'ere  to  begin  work  tlie  first 
of  May,  1903,  and  were  to  deliver  to  the  Secretary  of  State  five  hun- 
dred j)rinted  copies  of  their  report  by  November  15,  1904,  thus  giving 
tliem  a  little  more  than  eighteen  mouths  to  prepare  and  ])td)lisli  tlieir 


PREFACE.  IX 

report.  The  hastily  printed  legislative  edition  was  carefully  scruti- 
nized by  a  large  joint  legislative  committee  and  adopted  as  a  single 
act  by  the  Legislature  of  1905. 

The  commissioners  were  required  to  incorporate  into  the  act  all 
general  public  statutes  of  that  session,  and  to  submit  the  same,  before 
publication,  to  a  legislative  committee  composed  of  Senator  A.  C. 
ZoUicoflfer  and  Representatives  A.  W.  Graham  and  R.  B.  Redwine, 
which  was  done. 

This  act  became  operative  August  1,  190.5,  but,  owing  to  the  mag- 
nitude of  the  work,  it  could  not  be  published  by  that  date.  It  may 
not  be  amiss  to  call  attention  to  the  fact  that  the  Revised  Code  was 
authorized  by  the  Legislature  of  1850.  The,  commissioners  made 
their  report  to  the  Legislature  of  1854.  The  Code  went  into  opera- 
tion November  1,  1883,  nearly  eight  months  after  the  adjournment 
of  the  Legislature,  and  was  not  delivered  for  some  months  thereafter, 
although  it  was  published  by  one  of  the  largest  law  publishing  houses 
in  the  United  States.      So  the  present  delay  is  not  without  precedent. 

The  commissioners  have  adopted  a  new  method  of  arrangement, 
which  it  is  hoped  will  facilitate  iinding  the  law.  In  view  of  the 
prominent  black-letter  heads  to  all  of  the  sections,  and  the  informa- 
tion contained  in  the  top  line  of  each  page,  as  well  as  the  division  of 
chapters  into  appropriate  sub-chapters,  it  was  considered  that  it 
would  be  a  useless  expense  and  imnecessarily  add  to  the  bulk  of  the 
volume  to  print  at  the  beginning  of  the  chapters  the  captions  of  sec- 
tions, as  was  done  in  The  Code  and  in  the  Revised  Code. 

No  references  have  been  made  by  foot  or  marginal  notes  to  judicial 
interpretation  of  the  statutes,  as  such  notes  were  not  contemplated  or 
provided  for  by  the  legislation  prescribing  the  duties  of  the  commis- 
sioners. 

The  volume  of  legislation  in  the  last  twenty-two  years,  the  period 
covered  by  our  labors,  made  it  impracticable  to  publish  the  work  in 
one  volume.      The  first  volume  contains  the  statutes  of  general  appli- 


X  PREFACE. 

cation,  and  more  particularly  affecting  onr  people  as  a  whole,  while  in 
the  second  volume  is  collected  those  statutes  relating  largely  to  the 
political  government  of  the  commonwealth  and  of  its  several  depart- 
ments and  institutions.  There  are  also  included  in  the  second  volume 
those  statutes  which  it  is  customary  to  have  printed  and  distributed 
in  pamphlet  form. 

The  original  draft  of  the  index  is  the  work  of  the  clerk  of  the  com- 
missioners, George  P.  Pell,  Esq.,  and  is  much  more  elaborate  and 
more  carefully  prepared  than  anything  of  the  kind  heretofore  under- 
taken in  any  of  our  codifications. 

An  innovation  has  been  made,  in  that  for  the  first  time  the  type 
metal  from  which  the  Eevisal  of  1905  is  printed  has  been  preserved, 
and  will  facilitate  the  i^ublication  of  new  editions  as  often  as  each 
recurring  Legislature  shall  deem  it  wise,  and  at  a  minimum  cost. 

With  these  observations,  the  Eevisal  of  100,5  (the  name  selected 
by  the  legislative  committee)  is  submitted  to  a  generous  and  appre- 
ciative public,  trusting  that,  with  the  corrections  and  amendments 
which  it  received  from  the  Legislature,  and  the  sanction  given  to  it 
by  that  hodj,  it  will  contribute  to  an  extension  of  the  knowledge  of 
our  statutory  law  by  our  people,  and  to  a  just  administration  thereof 
by  our  courts.  Thojias  L.   Woir.vcK, 

Neediiaji  Y.  Gulley, 

WiLLIAJI    E.    EoD.MAN. 


STATE   OF  NORTH   CAROLINA. 


IX    THE   YEAR   OF   OUR  LORD 
ONE  THOUSAND  NINE   HUNDRED  AND  FIVE. 


AN     ACT 


FOR    REVISING    AND     CONSOLIDATING    THE    PUBLIC    AND    GENERAL 
STATUTES    OF    THE    STATE    OF    NORTH     CAROLINA. 


Tlie  ticneral  Assembly  of  XortJi,  Carolina  do  enact  the  following 
named  chapters,  subchapters  and  sections,  to  be  known  as  the 
Revisal  of  1905,  that  is  to  sav: 


ADMINISTRATIOX— /.  Necessity  for. 


Ch.   1 


CHAPTEE  1. 

ADMINISTRATION. 

Sections. 

I. 

Necessity  for, 

I—     2 

II. 

To  whom  granted, 

3—   13 

III. 

Will  annexed, 

14—  15 

IV. 

Jurisdiction, 

IG—   17 

V. 

Public  administrator. 

18—  21 

VI. 

Collectors, 

22—  25 

VII. 

Application  for  letters, 

26—  36 

VIII. 

Revocation, 

37—  38 

IX. 

Advertisement  for  creditors. 

39—  41 

X. 

Inventory, 

42—  44 

XI. 

What  are  assets, 

45—  58 

XII. 

Wrongful  death. 

59—  60 

XIII. 

Sales  of  personalty. 

61—  67 

XIV. 

Sales  of  realty. 

68—  86 

XV. 

Debts,  proved  and  paid, 

87—  98 

XVI. 

Accounts, 

99—103 

XVII. 

Accounting  compelled. 

104—131 

xviir. 

Distribution, 

132—137 

XIX. 

After-born  children. 

138—143 

XX. 

Settlement, 

144—155 

XXI. 

Actions  by  and  against  representative. 

156—165 

XXIT. 

Miscellaneous  provisions, 

166—173 

I.     Xecessity  for. 


1.  Penalty;  what  family  may  use.  No  person  shall  enter  upon 
the  administration  of  any  decedent's  e.state  nntil  he  has  obtained 
letters  therefor,  under  the  penalty  of  one  hundred  dollars,  one-half 
to  the  use  of  the  informer  and  the  other  half  to  the  state;  but 
nothing  herein  contained  shall  pi'event  the  family  of  the  deceased 
from  using  so  much  of  the  crop,  stock  and  provisions  on  hand  as 
may  be  necessary,  until  the  widow's  year's  support  is  assigned  there- 
from, as  prescribed  by  law. 

Code,  s.  1522;   1868-9,  c.  113.  s.  93. 

2.  Executor  de  son  tort.  Every  person  who  shall  receive  goods 
or  debts  of  any  person  dying  intestate,  or  any  release  of  a  debt  due 
the  intestate,  upon  a  fraudulent  intent,  or  without  such  valuable 
consideration  as  shall  amount  to  the  value  or  thereabout,  shall  be 
chargeable  as  executor  of  his  own  wrong,  so  far  as  such  debts  and 
goods,  coming  to  his  hands,  or  whereof  he  is  released,  will  satisfy. 

Code,  s.   1494;    1868-9,  c.   113,  s.  67:   43   KHz.,  c.  8. 


ADMINISTEATIOX— //.   To   Wlwm  Granted.  Ch.   1 


II.     To  Whom  Granted. 

3.  Order  in  which  persons  entitled.  Letters  of  administration, 
in  case  of  intestacy,  shall  be  granted  to  the  persons  entitled  thereto 
and  applying  for  the  same,  in  the  following  order: 

1.  To  the  hiisband  or  widow,  except  as  hereinafter  provided. 

2.  To  the  next  of  kin  in  the  order  of  their  degree,  where  they  are 
of  diiferent  degrees ;  if  of  eqnal  degree,  to  one  or  more  of  them,  at 
the  discretion  of  the  clerk. 

3.  To  the  most  competent  creditor  who  resides  within  the  state, 
and  proves  his  debt  on  oath  before  the  clerk. 

4.  To  any  other  person  legally  competent. 

Code,  s.  1376;   C.  C.  P.,  s.  456;   R.  C,  c.  46,  ss.  2,  3;   1868-0,  e,    113,  s.  115. 

4.  Husband,  on  wife's  estate;  his  interest  therein.  If  any  mar- 
ried woman  shall  die  wholly  or  partially  intestate,  the  siirviving 
hnsband  sliall  be  entitled  to  administer  on  her  personal  estate,  and 
shall  hold  the  same,  subject  to  the  claims  of  her  creditors  and  others 
having  rightful  demands  against  her,  to  his  own  use,  except  as 
hereinafter  provided.  If  the  husband  shall  die  after  his  wife,  but 
before  administering,  his  executor  or  administrator  or  assignee  shall 
receive  the  personal  property  of  the  said  wife,  as  a  part  of  the  estate 
of  the  husband,  subject  as  aforesaid,  and  except  as  provided  by  law. 

Code,  s.  1479;  1871-2,  c.  193,  s.  32. 

5.  Disqualifications.  The  clerk  shall  not  issue  letters  of  admin- 
istration ijr  letters  testamentary  to  any  person  who,  at  the  time  of 
appearing  to  qualify — 

1.  Is  under  the  age  of  twenty-one  years. 

2.  Is  a  nonresident  of  this  state;  but  a  nonresident  may  qualify 
as  executor. 

3.  Has  been  convicted  of  a  felony. 

4.  Is  adjudged  by  the  clerk  incompetent  to  execute  the  duties 
of  such  trust  by  reason  of  drunkenness,  improvidence  or  want  of 
understanding. 

5.  Fails  to  take  the  oath  or  gwc  the  bond  required  by  law. 

6.  Has  renounced  his  right  to  qualify. 
Code,  ss.  1377,  1378,  2162;  C.  C.  P.,  s.  457. 

Note.     For  disqualification  of  executor  of  an  executor,  see  s.  15. 

6.  When    disqualified    persons    entitled.  ^Yhere    an    executor 

named  in  the  will,  or  any  person  having  a  prior  right  to  adminis- 
ter, is  under  tlie  disqualification  of  nonage,  or  is  temporarily 
absent  from  the  state,  such  person  is  entitled  to  six  months,  after 


6  ADMIXISTRATIOX— //.  To  117; om   Granted.  Ch.   1 

coming  of  age  or  after  his  return  to  the  state,  in  which  to  make 
application  for  letters  testamentary,   or  letters   of  administration. 
Code,  ss.  1379,  21G5;  C.  C.  P.,  ss.  452.  460;  R.  C,  c.  4G,  s.   12. 

7.  Forfeiture  by  divorce  or  felonious  slaying.  When  a  marriage 

shall  be  dissolved  a  vineiilo,  tliu  parties  respectively,  or  when  either 
party  shall  be  convicted  of  the  felonious  slaying  of  the  other,  or  of 
being  accessory  before  the  fact  of  such  felonious  slaying,  the  party  so 
convicted  shall  thereby  lose  all  his  or  her  right  to  administer  on  the 
estate  of  the  other,  and  to  a  distributive  share  in  the  personal  property 
of  the  other,  and  every  right  and  estate  in  the  personal  estate  of  the 
other. 

Code,  s.   1480;    1889,  e.  499;    1871-2,  e.   193,  s.  42. 

Note.     For  forfeiture  generally  b.y  divorce  a  vinculo,  see  s.  2109. 

8.  Elopement  and  adultery  of  wife  forfeits  right.  If  any  mar- 
ried woman  shall  elope  with  an  adulterer,  and  shall  not  be  living 
with  her  husband  at  his  death,  she  shall  thereby  lose  all  right  to  a 
distributive  share  in  the  personal  proi^erty  of  her  husband,  and  all 
right  to  administer  on  his  estate. 

Code,  s.  1481;    1871-2,  c.   193,  s.  44. 

Note.     For  forfeiture  generally  for  elopement,  see  ss.  2110,  2111. 

9.  How  husband  forfeits  right  as  to  wife's  estate,  if   any 

husband  shall  sejiarate  himself  from  his  wife,  and  be  living  in  adul- 
tery at  her  death,  or  if  she  shall  have  obtained  a  divorce  a  mensa 
et  thoro,  and  shall  not  be  living  with  her  husband  at  her  death,  or 
if  the  husband  shall  have  abandoned  his  wife,  or  shall  have  mali- 
ciously turned  her  out  of  doors,  and  shall  not  be  living  with  her  at 
her  death,  he  shall  thereby  lose  all  his  right  and  estate  of  whatever 
character  in  and  to  her  personal  property,  and  all  right  to  admin- 
ister on  her  estate. 

Code,  s.   1482;    1871-2.  c.   103,  s.  45. 

10.  Executor  may  renounce.  Any  person  appointed  an  e.xecu- 
tor  may  renounce  the  office  by  a  writing  signed  by  him,  and  on 
the  same  being  acknowledged  or  proved  to  the  satisfaction  of  the 
clerk  of  the  superior  court,  it  shall  be  filed. 

Code,  s.  2163;  C.  C.  P.,  s.  450. 

11.  When    renunciation    required.  When    any   person    applies 

for  administration,   and   any  other  person  has  prior  right  thereto, 
a  written  renunciation  of  the  person  or  persons  having  sueli  prior 
right  must  be  produced  and  filed  with  the  clerk. 
Code,  s.  1378;   C.  C.  P.,  s.  459. 


12  ADMINISTEATION— Z/.  To  ^yhom  Granted.  Ch.   1 

12.  When  person  entitled  deemed  to  have  renounced,  if  any 

person,  entitled  to  letters  of  administration,  fails  or  refuses  to 
apply  for  such  letters  within  thirty  days  after  the  death  of  the  intes- 
tate, the  clerk,  on  application  of  any  party  interested,  shall  issue 
a  citation  to  such  person  to  show  cause,  within  twenty  days  after 
service  of  the  citation,  why  he  should  not  be  deemed  to  have 
renounced.  If,  within  the  time  named  in  the  citation,  he  neglects 
to  answer  or  to  show  cause,  he  shall  be  deemed  to  have  renounced 
his  right  to  administer,  and  the  clerk  must  enter  an  order  accord- 
ingly, and  proceed  to  grant  letters  to  some  other  person.  If  no  per- 
son entitled  to  administer  shall  apply  for  letters  of  administration  on 
the  estate  of  a  decedent  within  six  months  from  his  death,  then  the 
clerk  may,  in  his  discretion,  deem  all  prior  rights  renounced  and 
appoint  some  suitable  person  to  administer  such  estate. 
Code,  s.  1380;  C.  C.  P.,  s.  460   (a)  ;   1868-9,  c.  203. 

13.  When  executor  deemed  to  have  renounced,  if  any  per- 
son appointed  an  executor  does  not  qualify  or  renounce  within 
sixty  days  after  the  will  is  admitted  to  probate,  the  clerk  of  the 
superior  court,  on  the  application  of  any  other  executor  named 
in  the  same  will,  or  any  party  interested,  shall  issue  a  citation  to 
such  iDcrson  to  show  cause  why  he  should  not  be  deemed  to  have 
renounced.  If,  upon  service  of  the  citation,  he  does  not  qualify 
or  renounce  within  such  time,  not  exceeding  thirty  days,  as  is 
allowed  in  the  citation,  an  order  must  be  entered  by  the  clerk  decree- 
ing that  such  person  has  renounced  his  apjiointment  as  executor. 

Code,  s.  2164;  C.  C.  P.,  s.  451. 

III.     Will  Ani^exed. 

14.  Letters    with,     issued    when.     If    there    is    no    executor 

appointed  in  the  will,  or  if,  at  any  time,  by  reason  of  death,  incom- 
petency adjudged  by  the  clerk  of  the  superior  court,  renunciation, 
actual  or  decreed,  or  removal  by  order  of  the  court,  or  on  any  other 
account  there  is  no  executor  qualified  to  act,  the  clerk  of  the 
superior  court  may  issue  letters  of  administration  with  the  will 
annexed,  to  some  siiitable  person  or  persons,  in  the  order  presci-ibed 
in  this  chapter. 

Code,  s.  21G6;  C.  C.  P.,  s.  453. 

15.  Qualification  of  administrators  with.  Administrators  with 

the  will  annexed  shall  have  the  same  qualifications  and  give  the 
same  bond  as  other  administrators;  but  the  executor  of  an  executor 
shall  not  be  entitled  to  qualify  as  executor  of  the  first  testator. 
Code,  s.  2167;  0.  C.  P.,  s.  454;  1905,  c.  286. 


1(5  ADMINISTRATION— 7T.  Junsdidion.  Ch.  1 

IV.       JUKISDICTION. 

16.  Of  clerk  of  superior  court.  The  clerk  of  the  superior  court 
of  each  countv  has  jurisdiction,  within  his  county,  to  take  proof 
of  wills  and  to  grant  letters  testamentary,  letters  of  administration 
with  the  Avill  annexed,  and  letters  of  administration  in  cases  of 
intestacy,  in  the  following  cases: 

1.  Where  the  decedent  at,  or  inunediately  previo\is  to,  his  death 
was  domiciled  in  the  county  of  such  clerk,  in  whatever  place  such 
death  may  have  hajjpened. 

2.  Where  the  decedent  at  his  death  had  his  fixed  place  of  dorai- 
cil  in  more  than  one  county,  the  clerk  of  any  such  county  has  juris- 
diction. 

3.  Where  the  decedent,  not  being  domiciled  in  this  state,  died 
out  of  the  state,  leaving  assets  in  the  county  of  such  clerk,  or  assets 
of  such  decedent  thereafter  come  into  the  county  of  s\ich  clerk. 

4.  Where  the  decedent,  not  being  domiciled  in  this  state,  died 
in  the  county  of  such  clerk,  leaving  assets  in  the  state,  or  assets  of 
such  decedent  thereafter  come  into  the  state. 

Code,  s.  1374;  C.  C.  P.,  s.  433;  R.  C,  e.  46,  s.  1;   1868-9,  c.  113,  3.  115. 

17.  What  clerk  has  exclusive.  The  clerk  who  first  gains  and 
exercises  jurisdiction  luider  this  chapter  thereby  acquires  sole  and 
exclusive  jurisdiction  over  the  decedent's  estate. 

Code,  s.  1375;  C.  C.  P.,  4.34. 

V.     Public  Admi:^istkator. 

18.  How  appointed.  There  may  be  a  public  administrator  in 
every  count}',  appointed  by  the  clerk  of  the  superior  co\irt  for  the 
term  of  eight  years. 

Code,  s.   1389;   1868-9,  c.   113. 

19.  Takes  and  subscribes  oath;  gives  bond.  The  public  admin- 
istrator shall  take  and  subscribe  an  oath  (or  affirmation)  faithfully 
and  honestly  to  discharge  the  duties  of  his  trust;  and  the  oath  so 
taken  and  subscribed  must  be  filed  in  the  office  of  the  clerk  of  the 
superior  court,  and  he  must  give  the  bond  required  by  law. 

Code,  ss.  1.393,  1390;   1868-9,  c.  113,  ss.  2,  5. 
Note.     For  bond,  see  Bonds,  s.  320. 

20.  When  letters  issue  to.  The  public  administrator  shall 
apply  for  and  obtain  letters  on  the  estates  of  deceased  persons  in 
the  following  cases : 

1.   When  the  period   of  six  months  lias  elaj)sed  from  the  death 


20         ADMIN'ISTRATION— T\  Public  Administrator.         Ch.   1 

of  any  decedent,  and  no  letters  testamentary,  or  letters  of  admin- 
istration or  collection,  have  been  api^lied  for  and  issued  to  any 
l^erson. 

2.  When  any  stranger,  or  person  without  known  heirs,  shall  die 
intestate  in  any  county. 

3.  When  any  person  entitled  to  administration  shall  request, 
in  writing,  the  clerk  to  issue  the  letters  to  the  public  administrator. 

Code,  s.  1394;  1868-9,  e.  113,  s.  6. 

21.  Powers;  duties;  when  term  expires.  The  public  admin- 
istrator shall  have,  in  respect  to  the  several  estates  in  his  hands, 
all  the  rights  and  powers,  and  be  subject  to  all  the  duties  and  lia- 
bilities of  other  administrators.  On  the  expiration  of  the  term  of 
office  of  a  public  administrator,  or  his  resignation,  he  may  continue 
to  manage  the  several  estates  committed  to  him  prior  thereto  until 
he  shall  have  fully  administered  the  same,  if  he  shall  then  enter  into 
a  bond  as  required  by  law  for  administrators. 

Code,  s.  1395;   1868-9,  c.  113,  s.  7;  1876-7,  c.  239. 

VI.       COLLECTOES. 

22.  When  and  how  appointed.  Whenever,  for  any  reason,  a  delay 
is  necessarily  produced  in  the  admission  of  a  will  to  probate,  or 
in  granting  letters  testamentary,  letters  of  administration,  or  let- 
ters of  administration  with  the  will  annexed,  the  clerk  may  issue 
to  some  discreet  person  or  persons,  at  his  option,  letters  of  collec- 
tion, authorizing  the  collection  and  preservation  of  the  property 
of  the  decedent. 

Code,  s.  1383;  C.  C.  P.,  s.  463;  R.  C.  c.  46,  s.  9;  1868-9,  c.  113,  s.  115. 

23.  Qualification;  bond.  Every  collector  shall  have  the  quali- 
fications and  give  the  bond  prescribed  by  law  for  an  administrator. 

Code,  s.  1384;  C.  C.  P.,  s.  464. 

24.  Authority.  Every  collector  has  authority  to  collect  the  per- 
sonal property,  preserve  and  secure  the  same,  and  collect  the  debts 
and  credits  of  the  decedent,  and  for  these  purposes  he  may  com- 
mence and  maintain  or  defend  suits,  and  he  may  sell,  under  the 
direction  and  order  of  the  clerk,  any  personal  property  for  the 
preservation  and  benefit  of  the  estate.  He  may  be  sued  for  debts 
due  by  the  decedent,  and  he  may  pay  funeral  expenses  and  other 
debts. 

Code,  s.  1385;  C.  C.  P.,  s.  465;  R.  C,  c.  46,  s.  6;  1868-9,  c.  113,  s.  115. 

25.  Authority  ceases,  when;  duty  to  account.  When  letters 

testamentary,  letters  of  administration  or  letters  of  administration 


25  ADMIXISTRATIOX— T7.   Collectors.  Cli.   1 

with  the  will  annexed  are  granted,  the  powers  of  such  collector 
shall  cease,  but  any  suit  brought  by  the  collector  may  be  coiitinued 
by  his  successor,  the  executor  or  the  administrator  in  his  own 
name.  Such  collector  must,  on  demand,  deliver  to  the  executor  or 
administrator  all  the  property,  riglits  and  credits  of  the  decedent 
under  his  control,  and  render  an  account,  on  oath,  to  the  clerk  of 
all  his  proceedings.  Siich  delivery  and  account  may  be  enforced 
by  citation,   order  or  attachment. 

Code,  s.  1386;  C.  C.  P.,  s.  466;  R.  C,  c.  46,  s.  7;  1868-9,  c.  113,  s.  115. 

VII.     Application  foe  Letters. 

26.  What  to  contain.  On  application  for  letters  of  adminis- 
tration, the  clerk  must  ascertain  by  affidavit  of  the  applicant  or 
otlierwise — ■ 

1.  The  death  of  the  decedent  and  his  intestacy. 

2.  That  the  api^licant  is  the  proper  person  entitled  to  admin- 
istration, or  that  he  applies  after  the  renunciation  of  the  person 
or  persons  so  entitled. 

3.  The  value  and  nature  of  the  intestate's  property,  the  names 
and  residence  of  all  parties  entitled  as  heirs  or  distributees  of  the 
estate,  if  known,  or  that  the  same  can  not,  on  diligent  inquiry,  be 
pi'ocured ;  which  of  said  parties  are  minors,  and  whether  with  or 
without  guardians,  and  the  names  and  residences  of  such  guar- 
dians, if  known.  Such  affidavit  or  other  proof  must  be  recorded  and 
filed  by  the  clerk. 

Code,  s.  1381;  C.  C.  P.,  s.  461. 

27.  How  contest  over,  instituted.   Any  person  interested  in  the 

estate  may,  on  complaint  filed  and  notice  to  the  applicant,  contest 
tlie  right  of  such  applicant  to  letters  of  administration,  and  on 
any  issue  of  fact  joined,  or  matter  of  law  arising  on  the  pleadings, 
the  cause  may  be  transferred  to  the  superior  court  for  trial,  or  an 
appeal  be  taken,  as  in  other  special  proceedings. 

Code,  s.  1382;  C.  C.  P.,  s.  462. 

28.  Executor  gives  bond,  when.  Executors  shall  give  bond  as 
prescribed  by  law  in  the  following  cases: 

1.  Where  the  executor  resides  out  of  tlie  state.  And  no  foreign 
executor  has  any  authority  to  intermeddle  with  the  estate  until  he 
shall  have  entered  into  bond,  which  must  be  done  within  tlie  space 
of  one  year  after  the  death  of  the  testator,  and  not  afterwards. 

2.  When  a  man  marries  a  Avoman  who  is  an  executrix,  and  if  the 
husband  in  such  case  fail  to  give  bond,  tlie  clei'k,  on  application  of 
any  creditor  or  other  party  interested  in  the  estate,  shall  revoke  the 


2S     ADMIXISTRATIOX— T'//.  Application  for  Letters.     Ch.   1 

letters  issued  to  the  wife  and  grant  letters  of  administration  with  the 
will  annexed  to  some  other  person. 

3.  AVhcre  an  executor,  other  than  snch  as  may  have  already  given 
bond,  obtains  an  order  to  sell  any  portion  of  the  real  estate  for  the 
payment  of  debts,  as  hereinafter  provided,  the  conrt  or  clerk  to 
whom  application  is  made  shall  require,  before  granting  any  order 
of  sale,  such  executor  to  enter  into  bond. 

Code,  s.  1515;  R.  C,  c.  46,  ss.  12,  13. 

29.  Oath  taken;  bond  given.  Before  letters  testamentary,  let- 
ters of  administration  with  the  will  annexed,  letters  of  administra- 
tion or  letters  of  collection  are  issued  to  any  person,  he  must  give 
the  l)ond  required  by  law  and  must  take  and  subscribe  an  oath  or 
affirmation  before  the  clerk  that  he  will  faithfully  and  honestly  dis- 
charge the  duties  of  his  trust,  which  oath  must  be  tiled  in  the  office 
of  the  clerk. 

Code,  ss.  1387,  1388,  2169;  C.  C.  P.,  ss.  467,  468;  1870-1,  c.  93. 
Note.     For  bond,  see  Bonds,  s.  319. 

30.  Persons  injured  may  sue  on  bond.  Every  person  injured  by 
the  breach  of  any  bond  given  by  an  executor,  administrator  or  col- 
lector, may  put  the  same  in  suit  and  recover  such  damages  as  he  may 
have  sustained. 

Code,  s.  1516;  1868-9,  c.  113.  s.  87. 

31.  Letters  revoked,  bond  liable  to  successor  for  default. 

Whenever  the  letters  of  an  executor,  administrator  or  collectur  are 
revoked,  his  bond  may  be  prosecuted  b}'  the  person  or  persons  suc- 
ceeding to  the  administration  of  the  estate,  and  a  recovery  may  be 
had  thereon  to  the  full  extent  of  any  damage,  not  exceeding  the  pen- 
alty of  the  bond,  sustained  by  the  estate  of  the  decedent  by  the  acts 
or  omissions  of  such  executor,  administrator  or  collector,  and  to  the 
full  value  of  any  property  received  and  not  duly  administered. 
Moneys  so  recovered  shall  be  assets  in  the  hands  of  the  person  recov- 
ering them. 

Code,  s.  1517;  1868-9,  c.  113,  s.  88. 

32.  When  new  bond  or  new  sureties  required.  If  complaint  be 

made  on  affidavit  to  the  clerk  of  the  superior  court  that  the  surety 
on  any  bond  of  an  executor,  administrator  or  collector  is  insuffi- 
cient, or  that  one  or  more  of  such  sureties  is  or  is  about  to  become 
a  nonresident  of  this  state,  or  that  the  bond  is  inadequate  in  amount, 
the  clerk  must  issue  an  order  requiring  the  principal  in  the  bond 
to  show  cause  why  he  should  not  give  a  new  bond,  or  further  surety, 
as  the  case  may  be.  On  the  return  of  the  order  duly  executed,  if 
the  objections  in  the  complaint  are  found  valid,  the  clerk  shall  make 


32     ADMHSriSTEATION— F//.  Application  for  Letters.     Ch.  1 

an  order  requiring  the  party  to  gi\'e  further  surety  or  a  new  bond  in 
a  larger  amount  within  a  reasonable  time. 
Code,  s.  1518;  1868-9,  c.  113,  s.  89. 

33.  Remedy  of  surety  in  danger  of  loss.  Any  surety  on  the  bond 

of  an  executor,  administrator  or  collector,  who  is  in  danger  of 
sustaining  loss  by  his  suretyship,  may  exhibit  his  petition  on  oath 
to  the  clerk  of  the  superior  court  wherein  the  bond  was  given,  setting 
forth  particularly  the  circumstances  of  his  case,  and  asking  that 
such  executor,  administrator  or  collector  be  removed  from  office,  or 
that  he  give  security  to  indemnify  the  petitioner  against  appre- 
hended loss,  or  that  the  petitioner  be  released  from  responsibility 
on  account  of  any  future  breach  of  the  bond.  The  clerk  shall 
issue  a  citation  to  the  principal  in  the  bond,  requiring  him,  Avitliin 
ten  days  after  service  thereof,  to  answer  the  petition.  If,  iipon  the 
hearing  of  the  case,  the  clerk  deem  the  surety  entitled  to  relief,  he 
may  gTant  the  same  in  such  manner  and  to  such  extent  as  may  be 
just.  And  if  the  principal  in  the  bond  gives  new  or  additional 
security,  to  the  satisfaction  of  the  clerk,  within  such  reasonable  time 
as  may  be  required,  the  clerk  may  make  an  order  releasing  the 
surety  from  liability  on  the  bond  for  any  subsequent  act,  default  or 
misconduct  of  the  principal. 
Code,  3.  1519;  1868-9,  e.  113,  s.  90. 

34.  Failing  to  give  new  bond,  letters  revoked,   if  any  person 

required  to  give  a  new  bond,  or  further  security,  or  security  to 
indemnify,  under  the  two  preceding  sections,  fails  to  do  so  within 
the  time  specified  in  any  such  order,  the  clerk  must  forthwith  revoke 
the  letters  issued  to  such  person,  whose  right  and  authority,  respect- 
ing the  estate,  shall  thereupon  cease. 
Code,  a.  1520;  1868-9,  c.  113,  s.  91. 

35.  Letters  revoked;  successor  appointed;  estate  protected. 

In  all  cases  of  the  revocation  of  letters,  the  clerk  must  immediately 
appoint  some  other  person  to  succeed  in  the  administration  of  the 
estate;  and  pending  any  suit  or  proceeding  between  parties  respect- 
ing such  revocation,  the  clerk  is  authorized  to  make  such  interlocu- 
tory order  as,  without  injury  to  the  rights  and  remedies  of  credit- 
ors, may  tend  to  the  better  securing  of  the  estate. 
Code,  s.  1521;  1868-9.  c.  113,  s.  92. 

36.  Form  of  letters.  .\11  letters  must  be  issued  in  the  name  of 
the  state,  and  tested  in  the  name  of  the  clerk  of  the  sujierior  court, 
signed  by  him,  and  scaled  with  his  seal  of  office,  and  shall  have 
attached  thereto  copies  of  sections  forty-two  and  ninety-nine. 

Code,  as.  1399,  2172;  C.  C.  P.,  ss.  471,  478;  1871-2,  c.  46. 


■■n  ADMINISTEATION— TT//.  B evocation.  Ch.  1 

VIII.     Revocation. 

37.  On  proof  of  will.  If,  after  the  letters  of  administration  are 
issued,  a  will  is  subsequently  proved  and  lettei's  testamentary  are 
issued  thereon;  or,  if  after  letters  testamentary  are  issued,  a  revo- 
cation of  the  will,  or  a  subsequent  testamentary  paper  revoking  the 
appointment  of  executors  is  proved  and  letters  are  issued  thereon, 
the  clerk  of  the  superior  court  must  thereupon  revoke  the  letters 
first  issued,  by  an  order  in  writing  to  be  served  on  the  person  to 
whom  such  first  letters  were  issued ;  and,  until  service  thereof,  the 
acts  of  such  person,  done  in  good  faith,  are  valid. 

Code,  s.  2170;   C.  C.  P.,  s.  4G9. 

38.  For  disqualification  or  default.  If,  after  any  letters  have 
been  issued,  it  appears  to  the  clerk,  or  if  complaint  is  made  to  him 
on  affidavit,  that  any  person  to  whom  they  were  issued  is  legally 
incompetent  to  have  such  letters,  or  that  such  person  has  been  guilty 
of  default  or  misconduct  in  the  due  execution  of  his  ofiice,  or  that 
the  issue  of  such  letters  was  obtained  by  false  representations  made 
by  such  person,  the  clerk  shall  issue  an  order  requiring  such  person 
to  show  cause  why  the  letters  should  not  be  revoked.  On  the 
return  of  such  order,  duly  executed,  if  the  objections  are  found 
valid,  the  letters  issued  to  such  person  must  be  revoked  and  super- 
seded, and  his  authority  shall  thereupon  cease. 

Code,  s.  2171;  C.  C.  P.,  s.  470. 

IX.     Adveetiseiiext  foe  Creditoes. 

39.  Advertisement  for  claims,  when  and  how  made;  cost. 

Every  executor,  administrator  and  collector,  within  twenty  days 
after  the  granting  of  letters,  shall  notify  all  persons  having  claims 
against  the  decedent  to  exhibit  the  same  to  such  executor,  admin- 
istrator or  collector,  at  or  before  a  day  to  be  named  in  such  notice; 
which  day  must  be  twelve  months  from  the  day  of  the  first  publica- 
tion of  such  notice.  The  notice  shall  be  published  once  a  week 
for  six  weeks  in  a  newspaper,  if  any  there  be  published  in  the 
county.  If  there  shall  be  no  newspaper  published  in  the  county, 
then  the  notice  shall  be  posted  at  the  courthouse  and  four  other 
public  places  in  the  county.  The  cost  of  publishing  in  a  paper 
shall  in  no  case  exceed  two  dollars  and  fifty  cents. 

Code,  ss.  1421,  1422;  1868-9,  c.  113,  s.  29;  1881,  c.  278,  s.  2. 

40.  How  proved.  A  copy  of  the  advertisement  directed  to  be 
posted  or  published  in  pursuance  of  the  preceding  section  with  an 
affidavit,  taken  before  some  person  authorized  to  administer  oaths. 


40     ADMIXISTRATIOX— AY.  Advertisement.  Creditors.     Ch.  1 

of  the  proprietor,  editor  or  foreman  of  the  newspaper  wherein  the 
same  appeared,  to  the  effect  that  such  notice  was  published  for  six 
weeks  in  said  newspaper,  or  an  attidavit  statinj;  that  such  notices 
were  posted  shall  be  filed  in  the  office  of  the  clerk  by  the  executor, 
administrator  or  collector.  The  copy  so  verified  or  affidavit  shall  be 
deemed  a  record  of  the  court,  and  a  copy  thereof,  duly  certified  by 
the  clerk,  shall  be  received  as  conclusive  evidence  of  the  fact  of 
publication  in  all  the  courts  of  this  state. 
Code,  s.  1423;   18G8-9,  e.  113,  s.  31. 

41.  Notice  may  be  served  on  creditor  personally.  The  execu- 
tor, administrator  or  collector  may  cause  the  notice  to  be  person- 
ally served  on  any  creditor,  who  shall,  thereupon,  within  six 
months  after  personal  service  thereof,  exhibit  his  claim,  or  be  for- 
ever barred  from  maintaining  any  action  thereon. 

Code,  s.  1424;   1808-9,  c.  113,  s.  32;   1885,  96. 

X.     Invextoky. 

42.  Taken  and  returned  within  three  months.  Every  executor, 

administrator  and  collector,  within  three  months  after  his  qualifi- 
cation, shall  return  to  the  clerk,  on  oath,  a  jiist,  true  and  perfect 
inventory  of  all  the  real  estate,  goods  and  chattels  of  the  deceased, 
which  have  come  to  his  hands,  or  to  the  hands  of  any  person  for 
him,  which  inventory  shall  be  signed  by  him  and  be  recorded  by 
the  clerk.  Pie  shall  also  return  to  the  clerk,  on  oath,  within  three 
months  after  each  sale  made  by  him,  a  full  and  itemized  account 
thereof,  which  shall  be  signed  by  him  and  recorded  by  the  clerk. 
Code,  s.  1396;  R.  C,  c.  4G,  s.  10;  1868-9,  c.  113,  s.  8. 

43.  How  compelled.  If  the  inventury  and  account  of  sale  speci- 
fied in  the  preceding  section  are  not  returned  as  therein  prescribed, 
the  clerk  must  issiie  an  order  requiring  the  executor,  administrator 
or  collector  to  file  the  same  within  the  time  specified  in  the  order, 
which  shall  not  be  less  than  twenty  days,  or  to  show  cause  why  an 
attachment  should  not  be  issued  against  him.  If,  after  due  service 
of  the  order,  the  executor,  administrator  or  collector  does  not,  on 
the  return  day  of  the  order,  file  such  inventory  or  account  of  sale, 
or  obtain  further  time  to  file  the  same,  the  clerk  shall  have  poivor 
to  vacate  the  ofiice  of  administrator,  executor  or  collector. 

Code,  s.  1397;   1808-9,  c.  113,  s.  9. 

Note.     For  additional   remedy,  see  Crimes. 

44.  New  assets  inventoried.  Whenever  furtlier  property  of  any 
kind,  not  included  in  any  previous  return,  shall  come  to  the  hands 


44  ADMINISTRATIOX— X.  Inventory.  Ch.   1 

or  knowledge  of  any  executor,  administrator  or  collector,  he  mnst 
ea\ise  the  same  to  be  returned,  as  hereinbefore  prescribed,  within 
three  months  after  the  possession  or  discovery  thereof;  and  the 
making  of  such  return  of  new  assets,  from  time  to  time,  may  be 
enforced  in  the  same  manner  as  in  the  case  of  the  first  inventory. 
Code,  s.  1398;   1868-9,  c.  113,  s.  10. 

XI.     What  are  Assets. 

45.  Distinction  between  legal  and  equitable  abolished.  The  dis- 
tinction between  legal  and  equitable  assets  is  abolished,  and  all 
assets  shall  be  applied  in  the  discharge  of  debts  in  the  manner  pre- 
scribed by  this  chapter. 

Code,  s.   1406;    1808-9,  c.   113,   s.   14. 

46.  Trust  estate  in  personalty,  if  any  trustee,  or  any  person 
interested  in  any  trust  estate,  shall  die  leaving  any  equitable  inter- 
est in  personal  estate  which  shall  come  to  his  executor,  adminstra- 
tor  or  collector,  the  same  estate  shall  be  deemed  personal  assets. 

Code,  s.  1403;   1S68-9,  c.  113,  s.  11. 

47.  Crops  ungathered  at  death.  The  crops  of  every  deceased 
person,  remaining  ungathered  at  his  death,  shall,  in  all  cases,  belong 
to  the  executor,  administrator  or  collector,  as  part  of  the  personal 
assets,  and  shall  not  pass  to  the  widow  with  the  land  assigned  as 
dower ;  nor  to  the  devisee  by  virtue  of  any  devise  of  the  land,  unless 
such  intent  be  manifest  and  specified  in  the  will. 

Code,  s.  1407;   1868-9.  c.  113,  s.  15. 

48.  What  proceeds  of  real  estate  deemed  personal  assets.  All 

proceeds  arising  from  the  sale  of  real  property,  for  the  payment  of 
debts,   as  hereinafter  provided,  shall  be  deemed  personal  assets  in 
the  hands  of  the  executor,  administrator  or  collector,   and  applied 
as  though  the  same  were  the  proceeds  of  personal  estate. 
Code,  s.  1404;  1868-9,  c.  113,  s.  12. 

49.  What  proceeds  of  real  estate  deemed  real  assets.  All 

proceeds  from  the  sale  of  real  estate,  as  hereinafter  provided,  which 
may  not  be  necessary  to  pay  debts  and  charges  of  administration, 
shall,  notwithstanding,  be  considered  real  assets,  and  as  such  shall 
be  paid  by  the  executor,  administrator  or  collector  to  s\ich  persons 
as  would  have  been  entitled  to  the  land  had  it  not  been  sold. 

Code,  s.   1405;   1868-9,  c.   113,  s.   13. 

50.  Personalty  fraudulently  conveyed  recovered,  if   there  be 

not  sufticient  real  and  personal  assets  of  the  deceased  to  satisfy  all 


50  ADMIXISTRATIOX— A7.   \Vhat  are  Assets.  Ch.  1 

the  debts  and  liabilities  of  deceased,  together  with  the  costs  and 
charges  of  administration,  the  personal  representative  shall  have 
the  right  to  sue  for  and  reco\'er  any  and  all  personal  property  which 
the  deceased  may  in  anywise  have  transferred  or  con\-cyed  with 
intent  to  hinder,  delay,  or  defraud  his  creditors,  and  any  money  or 
property  so  recovered  shall  constitute  assets  of  the  estate  in  the 
hands  of  the  personal  representative  f<jr  the  payment  of  debts.  But 
if  the  fraudulent  alienee  of  deceased  has  sold  the  property  or  estate 
so  fraudulently  acq\iired  by  him  to  a  bona  fide  purchaser  for  value 
without  notice  of  the  fraud,  then  such  fraudulent  alienee  shall  be 
liable  to  the  personal  representative  for  the  value  of  the  property 
and  estate  so  acquired  and  disposed  of.  If  the  whole  recovery 
from  any  fraudulent  alienee  of  a  decedent  shall  not  be  necessary 
for  the  payment  of  the  debts  of  decedent  and  the  costs  and  charges 
of  administration  of  his  estate,  the  surplus  shall  be  returned  to 
such  fraudulent  alienee  or  his  assigns. 

51.  Debt  of  executor  not   discharged   by   appointment.  The 

appointing  of  any  person  executor  shall  not  be  a  discharge  of  any 
debt  or  demand  due  from  such  person  to  the  testator. 

Code,  s.   U31;    1SG8-9,  c.  113,  s.  40. 

52.  Heirs  jointly  liable  for  debts,  when.  All  persons  succeeding 

to  the  real  or  personal  property  of  a  decedent,  by  inheritance,  de- 
vise, bequest  or  distribution,  shall  be  liable  jointly,   and  not  sepa- 
rately, for  the  debts  of  such  decedent. 
Code,  s.  15-2S;   1868-9,  c.  113,  s.  99. 

53.  Limit  of  liability  of  heir.  Xo  person  shall  be  liable,  under 
the  preceding  section,  beyond  the  value  of  the  property  so  acquired 
by  him,  or  for  any  part  of  a  debt  that  might  by  action  or  other  due 
proceeding  have  been  collected  from  the  executor,  administrator 
or  collector  of  the  decedent,  and  it  is  incumbent  on  the  creditor  to 
show  the  matters  herein  required  to  render  such  jierson  lial)le. 

Code,  s.  1.529;   1808-9,  c.  113,  9.  100. 

54.  Recovery  apportioned  among  heirs.  In  any  such  action 

the  recovery  must  be  apportioned  in  proportion  to  the  assets  or 
property  received  by  each  defendant,  and  judgment  against  each 
must  be  entered  accordingly.  Costs  in  such  actions  nmst  be  apYior- 
tioned  among  the  several  defendants,  in  ])roportion  to  the  amount 
of  the  recovery  against  each  of  them. 
Code,  s.  1530;   18G8-9,  c.  113,  s.  101. 

55.  Priority  of  debts  as  affecting  liability  of  heir.  Every  person 

who  is  liable  for  the  debts  of  a  decedent  must  observe  the  same 


55  ADMINISTRATION— Z7.   What  are  Assets.  Ch.  1 

preferences  in  the  payment  thereof  as  are  established  in  this  chap- 
ter; nor  shall  the  commencement  of  an  action  by  a  creditor  give 
his  debt  any  preference  over  others. 
Code,  s.  1531;   1868-9,  c.  113,  s.  102. 

56.  Defense,  other  debts  of  equality  or  priority.  The  defend- 
ants in  such  action  may  show  that  there  are  imsatisfied  debts  of  a 
prior  class  or  of  the  same  class  with  that  in  snit.  If  it  appears 
that  the  value  of  the  property  acquired  by  them  does  not  exceed 
the  debts  of  a  prior  class,  judgment  must  be  rendered  in  their 
favor.  If  it  appears  that  the  value  of  the  property  acquired  by 
them  exceeds  the  amount  of  debts  which  are  entitled  to  a  prefer- 
ence over  the  debt  in  suit,  the  whole  amount  which  the  plaintiff 
shall  recover  is  only  such  a  portion  of  the  excess  as  is  a  just  pro- 
portion to  the  other  debts  of  the  same  class  with  that  in  suit. 

Code,  s.   15.32;   lSGS-9,  c.  113.  s.  103. 

57.  Debts  paid,  estimated  as  unpaid  in  suit  against  heir,  when. 

If  any  debts  of  a  prior  class  to  that  in  which  the  suit  is  brought,  or 
of  the  same  class,  has  been  paid  by  any  defendant,  the  amount  of 
the  debts  so  paid  shall  be  estimated,  in  ascertaining  the  amount  to 
be  recovered,  in  the  same  manner  as  if  such  debts  were  outstand- 
ing and  mipaid,  as  prescribed  in  the  preceding  section. 
Code,  s.  1533:  1868-9,  c.  113,  s.  104. 

58.  Contribution  among  devisees,  where  heir  is  liable.   The 

remedy  to  compel  contribution  shall  be  by  petition  or  action  in 
the  sujjerior  court  or  before  the  judge  in  term  time  against  the 
personal  rejiresentatives,  devisees,  legatees  and  heirs  also  of  the 
decedent,  if  any  j^art  of  the  real  estate  be  imdevised,  within  two 
years  after  probate  of  the  will,  and  setting  forth  the  facts  which 
entitle  the  party  to  relief;  and  the  costs  shall  be  within  the  discre- 
tion of  the  court. 

Code,  s.   1534;   1868-9,  c.   113,  s.   106. 

XII.     Wrongful  Death. 

59.  Action  for  wrongful  death;  recovery  not  assets.  Whenever 

the  death  of  a  person  is  caused  by  a  wrongful  act,  neglect  or  default 
of  anotlier,  such  as  would,  if  the  injured  party  had  lived,  have 
entitled  him  to  an  action  for  damages  therefor,  the  person  or  corpora- 
tion that  woTild  have  been  so  liable,  and  his  or  their  execTitors, 
administrators,  collectors  or  successors,  shall  be  liable  to  an  action 
for  damages,  to  be  brought  within  one  year  after  such  death,  by  the 
executor,  administrator  or  collector  of  the  decedent;   and  this  not- 


59  ADMIXISTRATIOX— A7/.    ]\'roiif/ful  Death.  Ch.   1 

■svitlistanding  the  death,  and  although  the  wrongful  act,  neglect  or 
default,  causing  the  death,  amount  in  law  to  a  felony.  The  amount 
recovered  in  such  action  is  not  liable  to  be  apj^lied  as  assets,  in  the 
payment  of  debts  or  legacies,  but  shall  be  disposed  of  as  provided 
in  this  chapter  for  the  distribution  of  ]iersonal  property  in  ease  of 
intestacy. 

Code,  ss.  1408,  1500;   ISOS-O.  c.  113.  ss.  70,  12.  ll.J:   R.  C,  c.  4G,  ss.  8,  0. 

60.  Measure  of  damages  in  wrongful  death.  The  plaintiff  in 

such  action  may  recover  such  damages  as  are  a  fair  and  just  com- 
pensation for  the  pecuniary  injury  resulting  from  such  death. 
Code,  s.  1499;   1SG8-9,  c.  113,  s.  71;  R.  C,  e.  1,  s.  10. 

XIII.     Sales  of  Peksonalty. 

61.  By  collector,  only  on  order  of  court.  All  sales  of  personal 

property  by  collectors  shall  be  made  only  upon  order  obtained,  by 
motion,  from  the  clerk  of  the  superior  court,  who  shall  specify  in 
his  order  a  descriptive  list  of  the  property  to  be  sold. 
Code,  s.  1409;   1868-9,  c.  113.  s.  17. 

62.  As  soon  as  practicable.  Every  executor  and  administrator 
shall  have  i)ower  in  hi-;  discretion  and  without  any  order,  except 
as  hereinafter  provided,  to  sell,  as  soon  after  his  qualification  as 
Ijracticable,  all  the  personal  estate  of  his  decedent. 

Code,  s.   1408;    18GS-9,  c.   113,  s.   10. 

63.  Public,  how  made.  All  sales  of  ])ersonal  estate  liy  an  execu- 
tor, administrator  or  collector  shall  be  publicly  made,  on  credit 
or  for  cash,  after  twenty  days'  notification  posted  at  the  courthouse 
and  four  other  public  places  in  the  county.  When  any  person  in- 
terested, either  as  creditor  or  legatee,  on  the  day  of  sale  objects  to  the 
completion  of  any  sale  on  account  of  the  insufficiency  of  the  amount 
bid,  title  to  such  property  shall  not  pass  until  the  sale  is  reporteil 
to  and  confirmed  by  the  clerk. 

Code,  ss.  1410,  1411;   18G8-9,  c.  113,  ss.  18,  19. 

64.  Private,  how  made.  When  personal  property  shall  consist 
of  ccittoii,  tiibaccd,  goods,  wares  and  merchandise;  state,  national 
or  municipal  bonds,  or  the  stocks  in  incorporated  companies,  the 
executor  or  administrator  may,  upon  ap)ilic:ition  to  the  clerk  of  the 
superior  court,  obtain  an  order  to  sell  and  may  sell  such  jiersonal 
pro])erty  at  private  sale  for  the  best  price  that  can  be  obtained,  and 
shall  report  sucli  sal(>  to  the  clerk  for  confiruialion. 

1893,  c.  340. 


05       ADMIXISTRATIOX— A7//.  Sales  of  PprsonnUy.       Ch.   1 

65.  On  credit;  how  proceeds  secured.  The  proceeds  of  all  sales 

of  personal  estate  and  rentings  of  real  property  by  public  auction  or 
privately  sliall  be  secured  by  bond  and  good  personal  security;  and 
such  proceeds  shall  be  collected  as  soon  as  practicable,  otherwise  the 
executor,  administrator  or  collector  shall  be  answerable  for  the  same. 

Code,  s.   1413;    1S93,  c.  346,  s.  2;    1868-9,  o.   113.  s.   21. 

66.  Public,  hours  of;  penalty.  All  piiblic  sales  or  rentings  pro- 
vided for  in  this  chapter  sliall  be  between  the  hours  of  ten  o'clock 
a.  ni.  and  four  o'clock  p.  m.  of  the  day  on  which  the  sale  or  rent- 
ing is  to  be  made,  except  that  in  towns  or  cities  of  more  than  five 
flionsand  inhabitants  public  sales  of  goods,  wares  and  merchandise 
niaj'  be  continued  until  the  hour  of  ten  o'clock  p.  m. ;  and  every 
executor,  administrator  or  collector  who  otherwise  makes  any  sale 
or  renting  shall  forfeit  and  pay  two  hundred  dollars  to  any  person 
suing  for  the  same. 

Code,  s.  1414;   1893,  c.  346,  .s.  3;   186S-9,  c.  113,  .?.  22.' "    

67.  Evidences  of  debt,  when  and  how  sold.  Every  executor, 

administrator  and  collector,  at  any  time  after  one  year  from  the 
grant  of  letters,  shall  be  authorized  to  sell  at  public  auction,  in  the 
manner  prescribed  in  this  chapter,  all  bills,  bonds,  notes,  accounts, 
or  other  evidences  of  debt  belonging  to  the  decedent,  which  he  has 
been  unable  to  collect  or  which  may  be  deemed  insolvent.  Before 
offering  such  evidences  of  debt  at  public  sale  he  shall  file  with  the 
clerk  a  descriptive  list  thereof,  and  obtain  an  order  of  sale  therefor 
from  the  clerk,  and  shall  make  return  of  the  proceeds  of  such  sale 
as  in  other  cases  of  assets. 

Code,  s.  1412;   1868-9,  c.   113,  .s.  20. 

XIV.     S.M.Es  OF  Realty. 

68.  To  pay  debts  when  personalty  insufficient.  When  the  per- 
sonal estate  of  a  decedent  is  insufficient  to  pay  all  his  debts,  includ- 
ing the  charges  of  administration,  the  executor,  administrator  or 
collector  may,  at  any  time  after  the  grant  of  letters,  apply  to  the 
superior  co\irt  of  the  county  where  the  land  or  some  part  thereof 
it  situated,  by  petition,  to  sell  the  real  jn-operty  for  the  payment  of 
the  debts  of  such  decedent. 

Code,  t.   1436;    lSGS-9.  e.   113.  s.  42. 

69.  Undevised  first  sold.  Wlien  any  j.art  of  the  real  estate  of 
tlie  testator  descends  to  his  heirs  by  reason  of  its  not  being  devised 
or  disposed  of  by  the  will,  such  undevised  real  estate  shall  be  first 
chargeable  with  payment  of  debts,  in  exoneration,  as  far  as  it  will 


69  ADMINISTRATION— A71'.  Sales  of  BeaUy.  Cb.  1 

go,  of  the  real  estate  that  is  devised,  unless  from  tlie  will  it  appears 
otherwise  to  be  the  wish  of  the  testator. 
Code,  s.  1430;   18680,  c.  113,  s.  39. 

70.  Conveyances  by  heir  within  two  years  of  letters.  All  con- 
veyances of  real  property  of  any  decedent  made  by  any  devisee  or 
heir  at  law,  within  two  years  from  the  grant  of  letters,  shall  be 
void  as  to  the  creditors,  executors,  administrators  and  collectors  of 
such  decedent ;  but  such  conveyances  to  bona  iide  purchasers  for 
value  and  without  notice,  if  made  after  two  years  from  the  grant 
of  letters,  shall  be  valid  even  as  against  creditors. 

Code,  s.  1442;   1868-9,  c.  113,  s.  105. 

71.  Conveyed  to  personal  representative;  power  of  successor. 

Whenever  land  is  conveyed  to  a  personal  representative  for  the  benefit 
of  the  estate  he  represents,  he  may  sell  and  convey  same  upon  such 
terms  as  he  may  deem  just  and  for  the  advantage  of  said  estate ;  which 
sale  shall  be  public,  after  due  advertisement,  as  for  judicial  sales, 
unless  the  conveyance  is  made  to  the  party  entitled  to  the  proceeds. 
If  saich  land  is  not  conveyed  by  such  personal  representative  during 
his  life  or  term  of  office  his  successor  may  sell  and  cimvey  such  land  as 
if  the  title  had  been  made  to  him:  Provided,  if  the  predecessor  lias 
contracted  in  writing  to  sell  said  lands,  but  fails  to  convey  same,  his 
successor  in  office  may  do  so  upon  payment  of  the  purchase  price. 
1905,  c.  342. 

72.  Conveyed  in  fraud  of  creditors.  The  real  estate  subject  to 

sale  under  this  chapter  shall  include  all  the  deceased  may  have 
conveyed  with  intent  to  defraud  his  creditors,  and  all  rights  of 
entry  and  rights  of  action  and  all  other  rights  and  intei'csts  in 
lands,  tenements  and  hereditaments  which  he  may  devise,  or  by 
law  would  descend  to  his  heirs :  Provided,  that  lands  so  fraudu- 
lently conveyed  shall  not  be  taken  from  any  one  who  purchased 
them  for  a  valuable  consideration  and  without  a  knowledge  of  the 
fraud. 

Code,  s.  1446;   1808-9,  c.  113,  s.  51. 

73.  Fraudulent   grantee,   selling   innocent   purchaser,   liable. 

Whenever  an  executor,  administrator  or  collector  shall  file  his 
petition  to  sell  land,  whicli  may  have  been  fraudulently  conveyed, 
and  of  which  there  may  have  been  a  subsequent  bona  fide  sale, 
whereby  he  can  not  have  a  decree  of  sale  of  the  land,  the  court  may 
give  judgment  in  favor  of  such  executor,  administrator  or  collec- 
tor for  the  value  of  the  land,  against  all  persons  who  may  have 
fraudulently  purchased  the  same;  and  if  the  whole  recovery  shall 


73  ADMINISTRATIOX— AYT'.  Sales  of  Eealtij.  Oh.   1 

not  be  necessary  to  pay  tlie  debts  and  charges,  the  residue  shall  be 
restored  to  the  person  of  whom  the  recovery  was  made. 

Code,  s.  1447;   1SG8-9,  c.  113,  s.  52. 

74.  Heirs  and  devisees  necessary  parties  to  proceeding.  No 

order  to  sell  real  estate  shall  be  granted  till  the  heirs  or  devisees 
of  the  decedent  have  been  made  parties  to  the  proceeding,  by  ser- 
vice of  snimnons,  either  pei'sonally  or  by  publication,  as  required 
by  law. 

Code,  s.  1438;   1868  9,  c.  113,  s.  44. 

75.  Infants  defend  by  guardian;  must  answer.  Infant  defend- 
ants must  appear  by  guardian,  either  general  or  special,  who  shall 
file  an  'answer  to  the  petition,  either  admitting  or  denying  the  alle- 
gations thereof,  and  where  such  answer  is  filed  by  a  guardian  ad 
litem  the  costs  and  expenses  thereof,  if  any,  may  be  directed  to  be 
paid,  if  the  court  thinks  proper,  out  of  the  proceeds  of  the  sale, 
in  case  one  is  ordered.  

Code,  s.  1439:   1868-9,  c.  113,  s.  45. 

76.  Adverse  claimant  may  be  heard.  Whenever  the  land,  which 

is  sought  to  be  sold,  is  claimed  by  another  person  under  any  pre- 
tense whatsoever,  such  claimant  shall  be  admitted  to  be  heard  as 
a  party  to  the  proceeding,  upon  affidavit  of  his  claim,  and  if  the 
issue  be  found  for  the  petitioner  he  shall  have  his  writ  of  posses- 
sion and  order  of  sale  accordingly. 

Code,  s.   1441;    186S-9,"c.   113,  s.  47. 

77.  What   petition   for,   must   show.    The  petition,  which  must 

be  verified  by  the  oath  of  the  applicant,  shall  .set  forth,  as  far  as 
can  be  ascertained : 

1.  The  amount  of  debts  outstanding  against  the  estate. 

2.  The  value  of  the  personal  estate,  and  the  application  thereof. 

3.  A  description  of  all  the  legal  and  equitable  real  estate  of  the 
decedent,  with  the  estimated  value  of  the  respective  portions  or 
lots. 

4.  The  names,  ages  and  residences,  if  known,  of  the  devisees 
and  heirs  at  law  of  the  decedent. 

Code,  s.  1437;  1868-9,  c.  113,  s.  43. 

78.  Issue  joined,  cause  transferred  to  term.  When  an  issue  of 

law  or  fact  is  joined  between  the  parties,  the  course  of  the  procedure 
shall  be  as  prescribed  in  such  cases  for  other  special  j^roceedings. 
Code.  s.  1440;   1868-9,  c.  113.  s.  46. 

79.  Petition  not  denied,  order  made.   x\s  soon  as  all  proper 

parties  are  made  to  the  proceeding,  the  clerk  of  the  superior  court 


79  ADMIXISTRATIOX— A7T'.  Sales  of  BeaJty.  Cb.   1 

before  wbom  it  is  instituted,  if  tbe  allegations  in  tbe  petition  are 
not  denied  or  controverted,  sball  bave  power  to  bear  tbe  same  sum- 
marily, and  to  decree  a  sale. 
Code,  s.  1443;   18G8-9,  c.  113,  s.  48. 

80.  What  order  contains;  what  title  made.   Tbe  court  may 

decree  a  sale  of  tbe  wbole  or  any  specified  parcel  of  the  premises, 
in  such  a  manner  as  to  size  of  lots,  place  of  sale,  terms  of  credit, 
and  security  for  j^ayment  of  purchase  money,  as  may  be  most  ad- 
vantageous to  the  estate,  and  \ipon  the  coming  in  of  tbe  report  of 
tbe  sale  and  the  confirmation  thereof,  title  sball  be  made  by  such 
person,  and  at  such  time  as  tbe  court  may  prescribe,  and  in  all 
cases  where  tbe  persons  in  possession  bave  been  made  parties  to  tbe 
proceeding,  the  co\irt  may  grant  an  order  for  possession. 
Code,  s.  1444;   1S68-9,  c.  113,  s.  49. 

81.  How  advertised.    Xotice  of  sale  under  this  proceeding  shall 

be  tbe  same  as  for  tlie  sale  of  real  estate  by  sheriffs  on  execution. 
Code,  s.  1445;   1868-9,  c.  113,  s.  50. 

82.  Lands  devised  to  be  sold  by  executor,  who  may  sell.  When 

any  or  all  of  tbe  cxccuturs  cif  a  perstm  niakiiiji  a  will  of  lands  to 
be  sold  by  bis  executors  shall  die,  fail  or  for  any  cause  refuse  to 
take  upon  them  the  administration ;  or  after  having  qualified  shall 
die,  resign,  or  for  any  cause  be  removed  from  tbe  position  of  execu- 
tor ;  or  when  there  is  no  executor  named  in  a  will  devising  lands 
to  be  sold,  in  every  such  case  such  executor  or  executors  as  survive 
or  retain  tbe  burden  of  administration,  or  the  administrator  with 
t]ie  will  annexed,  or  tbe  administrator  de  bonis  non,  may  sell  and 
convey  such  lands ;  and  all.  such  conveyances  which  bave  been  or 
sball  be  made  by  such  executors  or  administrators  shall  bo  effectual 
to  coiivcv  the  title  to  the  jmrebaser  of  tbe  estate  so  devised  to  be 
sold. 

Code,  s.   1493;    1889,  c.  461. 

83.  Land  sold  by  decedent,  who  makes  deed.    When  any 

deceased  jierson  sball  ba\e  bona  fide  sold  any  lands,  and  sliall  bave 
given  a  bond  or  other  written  contract  to  the  purchaser  to  convey 
tbe  same,  and  the  bond  or  other  written  contract  bath  been  duly 
proved  and  registered  in  the  county  where  tbe  lands  are  situated, 
if  within  tbe  state,  or,  if  not  in  the  state,  sball  be  jn-oved  before  tbe 
clerk  of  tbe  superior  court  and  registered  in  the  county  wbei'e  tbe 
obligee  lives  or  obligor  died,  his  executor,  administrator  or  collector 
may  execute  a  deed  to  tbe  jmi-cbaser  conveying  such  estate  as  shall 
be  specified  in  tbe  lioiid   or  ntbcr  written  contract:   and  such  deed 


83  ADMINISTEATION— A7T'.  Sales  of  Bealtij.  Ch.   1 

shall  convej'  the  title  as  fully  as  if  it  had  been  executed  by  the 
deceased  obligor:  Provided,  that  no  deed  shall  be  made  but  upon 
payment  of  the  price,  if  that  be  the  condition  of  the  bond  or  other 
written  contract. 

Code.  s.   1492;    1S68-9,  c.   113,  s.  65;   1S74-.5,  c.   251. 

84.  Under  will,  may  be  public  or  private.  Sales  of  real  prop- 
erty made  pursuant  to  authority  given  by  will,  unless  the  will  other- 
wise directs,  may  be  jrablic  or  private,  and  on  such  terms  as,  in 
the  opinion  of  the  executor,  are  most  advantageous  to  those  inter- 
ested therein. 

Code,  s.   1503;    1808-9,  c.   113,   s.  75. 

85.  Realty  bought  for  estate,  when.   At  any  auction  sale  of 

real  property  belonging  to  the  estate,  the  executor,  administrator  or 
collector  may  bid  in  the  property  and  take  a  conveyance  to  himself 
as  execiitor,  administrator  or  collector  for  the  benefit  of  the  estate, 
when,  in  bis  opinion,  this  is  necessary  to  prevent  a  loss  to  the  estate. 
Code,  s.  1505;  1808-9,  c.  113,  s.  77. 

86.  Specifically  devised,  devisee  entitled  to  contribution.   If, 

upon  the  hearing  of  any  petition  for  the  sale  of  real  estate  to  pay 
debts,  under  this  chapter,  the  court  decree  a  sale  of  any  part  that 
may  have  been  specifically  devised,  the  devisee  shall  be  entitled  to 
contribution  from  other  devisees,  according  to  the  principles  of 
equity  in  respect  to  contribution  among  legatees.  And  the  children 
and  issiie  provided  for  in  this  chapter  shall  be  regarded  as  specific 
devisees  in  such  contribution. 
Code,  s.  1535;  1868-9,  c.  113,  s.  107. 

XV.  .  Debts,  Proved  asd  Paid. 

87.  Order  of  payment.  The  debts  of  the  decedent  must  be  paid 
in  the  following  order : 

First  class.  Debts  which  by  law  have  a  specific  lien  on  property 
to  an  amount  not  exceeding  the  value  of  s\ich  property. 

Second  class.     Funeral  expenses. 

Third  class.  Taxes  assessed  on  the  estate  of  the  deceased  pre- 
vious to  his  death. 

Fourth  class.  Dues  to  the  United  States  and  trt  the  state  of 
North  Carolina. 

Fifth  class.  Judgments  of  any  court  of  competent  jurisdiction 
within  this  state,  docketed  and  in  force,  to  the  extent  to  which  they 
are  a  lien  on  the  property  of  the  deceased  at  his  death. 

Sixth  class.     Wages  due  to  any  domestic  servant  or  mechanical 


87     ADMIKISTEATIOX— Xr.  Debts,  Proved  and  Paid.     Ch.   1 

or  agricultural  laborer  emploj^ed  by  the  deceased,  which  claim  for 
wages  shall  not  extend  to  a  period  of  more  than  one  year  next  pre- 
ceding the  death;  or  if  such  servant  or  laborer  was  employed  for 
the  year  current  at  the  decease,  then  from  the  time  of  such  employ- 
ment ;  for  medical  services  within  the  twelve  months  preceding  the 
decease. 

Seventh  class.     All  other  debts  and  demands. 

Code,  s.  1416;  1868-9,  c.  113,  s.  24. 

88.  No  preference  in  the  class.  No  executor,  administrator  or 
collector  sluill  give  ti:)  any  debt  any  preference  whatever,  either  by 
paying  it  out  of  its  class  or  by  paying  thereon  more  than  a  pro  rata 
proportion  in  its  class. 

Code,  ss.  1417,  1418;   1868-9,  c.  113,  ss.  25,  26. 

89.  Debts  due  executor  not  preferred.   No  property  or  assets 

of  the  decedent  shall  be  retained  by  the  executor,  administrator  or 
collector  in  satisfaction  of  his  o\\m  debt,  in  preference  to  others  of 
the  same  class ;  but  such  debt  must  be  established  upon  the  same 
proof  and  paid  in  like  manner  and  order  as  required  by  law  in  case 
of  other  debts. 

Code,  s.  1420;   1868-9,  c.  113,  s.  28. 

90.  Debts  not  due.  how  paid.  Debts  not  due  may  be  paid  on  a 
rebate  of  interest  thereon  for  the  time  unexpired. 

Code,  s.  1419;   1868-9,  c.  113,  s.  27. 

91.  Affidavit  as  to  debt  may  be  required.  Upon  any  claim  being 

presented  against  the  estate,  the  executor,  administrator  or  collector 
may  require  the  affidavit  of  the  claimant  or  other  satisfactory  evi- 
dence that  such  claim  is  justly  due,  that  no  payments  have  been 
made  thereon,  and  that  there  are  no  offsets  against  the  same,  to  the 
knowledge  of  the  claimant ;  or  if  any  payments  have  been  made,  or 
any  offsets  exist,  their  nature  and  amount  must  be  stated  in  such 
affidavit. 

Code,  s.  1425;   1868-9,  c.  113,  s.  33. 

92.  Disputed  debt  may  be  referred.  If  the  executor,  adminis- 
trator or  collector  doubts  the  justness  of  any  claim  so  presented,  he 
may  enter  into  an  agreement,  in  writing,  with  the  claimant,  to  refer 
the  matter  in  controversy,  whether  the  same  be  of  a  legal  or  equit- 
able nature,  to  one  or  more  disinterested  persons,  not  exceeding 
three,  whose  proceedings  shall  be  the  same  in  all  respects  as  if  such 
reference  had  been  ordered  in  an  action.  Such  agreement  to  refer, 
and  the  award  thereupon,  shall  be  filed  in  the  clerk's  office  wliere 
the  letters  were  granted,  and  shall  be  a  lawful  voucher  for  the  per- 


92     ADMINISTKATION— XT".  DeUs,  Proved  and  Paid.     Ch.  1 

sonal  representative.     The  same  may  be  impeached  in  any  proceed- 
ing   against    the    personal    representative    for    fraud  therein :  Pro- 
vided, that  the  right  to  refer  claims  under  this  section  shall  extend 
to  claims  in  favor  of  the  estate  as  well  as  those  against  it. 
Code,  s.  1426;  1868-9,  c.  113,  s.  34;  1872-3,  c.  141. 

93.  Disputed  debt  not  referred,  barred  in  six  months.    If  a 

claim  is  presented  to  and  rejected  by  the  executor,  administrator 
or  collector,  and  not  referred  as  provided  in  the  preceding  section, 
the  claimant  must,  within  six  months  after  due  notice  of  such  rejec- 
tion, or  after  some  part  of  the  debt  becomes  due,  commence  an 
action  for  the  recovery  thereof,  or  be  forever  barred  from  main- 
taining an  action  thereon. 

Code,  s.  1427;   1868-9,  c.  113.  s.  35. 

94.  Claims  not  presented  in  twelve  months,  administrator  not 

liable.  In  an  action  bi'ought  on  a  claim  which  was  not  presented 
within  twelve  months  from  the  first  publication  of  the  general  notice 
to  creditors,  the  executor,  administrator  or  collector  shall  not  be 
chargeable  for  any  assets  that  he  may  have  paid  in  satisfaction  of 
any  debts,  legacies  or  distributive  shares  before  such  action  was 
commenced ;  nor  shall  any  costs  be  recovered  in  such  action  against 
the  executor,  administrator  or  collector. 

Code,  s.   1428;   1868-9,  c.  113,  s.  37. 

95.  No  lien  by  suit  against  representative.   No  lien  shall  be 

created  by  the  commencement  of  a  suit  against  an  executor,  admin- 
istrator or  collector. 

Code,  s.  1432;   1868-9,  e.  113,  s.  41. 

96.  Payment  of  debts  out  of  class,  when  valid.   Where  any 

executor  or  administrator  has  paid  any  debt  of  his  testator  or  intes- 
tate before  all  the  debts  of  higher  dignity  have  been  paid  and  satis- 
fied, and  the  estate  of  such  testator  or  intestate  was  at  the  time  of 
siTch  payment  solvent,  but  has  since  been  rendered  insolvent  by 
the  emancipation  of  the  slaves,  or  the  insolvency  of  the  debtors  of 
the  estate,  or  other  caiise,  without  any  fault  or  want  of  diligence  on 
the  part  of  the  executor  or  administrator,  or  when  any  creditor 
has  refused  to  accept  payment  of  his  debt  in  Confederate  currency, 
and  such  currency  was  afterwards  used  by  the  executor  or  admin- 
istrator in  payment  of  debts  of  the  estate,  or  it  became  of  no  value 
by  the  termination  of  the  war,  in  all  such  cases  payments  thus  made 
shall  be  deemed  and  held  valid  in  law,  and  shall  be  allowed  to  such 
executor  or  administrator  in  all  suits  by  creditors  of  the  estate  seek- 
ing to  charge   such  executor  or   administrator  with   assets  of  the 


96     ADMIXISTRATIOX— -YT'.  Dchls,  Proved  aud  Paid.     Ch.   1 

estate  or  -witli  devastavit  thereof  without  regard  to  the  dignity  of 
the  debt  thus  paid,  or  on  which  snch  suit  may  be  brought. 
Code,  s.  U96;  1869-70.  c.  150. 

97.  Costs  against  executors,  when  allowed.    Xo  costs  shall  be 

recovered  in  any  action  again.st  an  executor,  administrator  or  col- 
lector, unless  it  appears  that  payment  ^vas  \inrcasonably  delayed  or 
neglected,  or  that  the  defendant,  refused  to  refer  the  matter  in 
controversy,  in  ■which  cases  the  court  may  award  such  costs  against 
the  defendant  personally,  or  against  the  estate,  as  may  be  just. 

Code,  s.  1429:   1868-9,  c.  113,  s.  38. 

Note.     See  Costs;  .see  also,  infra  s.  115. 

98.  Bonds  which  bind  heir.  Bonds  and  other  obligations  in 
which  the  ancestor  has  bound  his  heirs  shall  not  be  put  in  suit 
against  the  heirs  or  devisees  of  the  decea.sed,  but  shall  be  paid  as 
other  debts  of  the  same  class  in  the  manner  provided  in  this  chapter. 

Code,  s.  1404;   1868-9,  c.  113,  s.  12. 

XVI.     Accounts. 

99.  Annual.  Every  executor,  administrator  and  collector  shall, 
within  twelve  months  fi-om  the  date  of  his  qualification  or  appoint- 
ment, and  annually,  so  long  as  any  of  the  estate  remains  in  his 
control,  file,  in  the  office  of  the  clerk  of  the  superior  court,  an  inven- 
tory and  account,  under  oath,  of  the  amount  of  property  received 
by  him,  or  invested  by  him,  and  the  manner  and  nature  of  such 
investment,  and  his  receipts  and  disbursements  for  the  past  year 
in  the  form  of  debit  and  credit.  He  must  produce  vouchers  for 
all  pajanents.  The  clerk  may  examine  on  oath  such  accounting 
party,  or  any  other  person,  concerning  the  receipts,  disbursements 
or  any  other  matter  relating  to  the  estate;  and,  having  carefully 
revised  and  audited  such  account,  if  he  approve  the  same  he  must 
endorse  his  approval  thereon,  which  shall  be  deemed  prima  facie 
evidence  of  correctness. 

Code,  s.  1399;  C.  C.  P..  s.  478;    1871-2.  c.  46. 

100.  Failure  to  file,  how  compelled.  If  any  executor,  adminis- 
trator or  collector  omits  u>  aewunt,  as  directed  in  the  pi'eceding  sec- 
tion, or  rendei's  an  in.sufhcient  and  inisatisfactory  account,  the  clerk 
shall  forthwith  order  such  executor,  administrator  or  collector  to 
render  a  full  and  satisfactory  account,  as  required  hj  law,  within 
twenty  days  after  service  of  the  order.  Ujiou  return  of  the  order, 
duly  served,  if  such  executor,  administrator  or  collector  fail  to 
appear  or  refuse  to  exhibit  such  account,  the  clerk  may  issue  an 


100  ADMINISTKATIOX— X17.  Accounts.  Cli.   1 

attacliment  against  him    for    a  contempt  and  commit    him  till  he 
exhibit  such  account,  and  may  likewise  remove  him  from  office. 
Code,  s.  1400;  C.  C.  P.,  s.  479. 

101.  Vouchers  presumptive  evidence.  Vouchers  are  presump- 
tive evidence  of  disbursement,  without  other  proof,  unless  im- 
peached. If  lost,  the  accounting  party  must,  if  required,  make 
oath  to  that  fact,  setting  forth  the  manner  of  loss,  and  state  the 
contents  and  purport  of  the  ^'oucher.  And  this  section  shall  apply 
to  guardians,  collectors,  trustees  and  to  all  other  persons  acting  in 
a  fiduciary  character. 

Code,  s.   1401;   C.  C.  P.,  s.  480. 

102.  Voucliers  for  gravestones;  when  cost  exceeds  $100.   It 

shall  be  lawful  for  executurs  and  admiuitftrators  to  provide  suital)le 
gravestones  to  mark  the  graves  of  their  testators  or  intestates,  and  to 
pay  for  the  cost  of  erecting  the  same,  and  the  cost  thereof  shall  be 
paid  as  funeral  expenses  and  credited  as  such  in  final  accounts.  The 
cost  thereof  shall  be  in  the  sound  discretion  of  the  executor  or  admin- 
istrator, having  due  regard  to  the  value  of  the  estate  and  to  the 
interests  of  creditors  and  needs  of  the  widow  and  distributees  of  the 
estate.  Where  the  executor  or  administrator  desires  to  spend  more 
than  one  hundred  dollars  for  such  purpose  he  shall  file  his  petition 
before  the  clerk  of  the  court,  and  such  order  as  will  be  made  by  the 
court  shall  specify  the  amount  to  be  expended  for  such  purpose,  and 
same  shall  be  approved  by  the  resident  judge  of  the  district. 

1905.  c.  444. 

103.  Final  account.  An  executor  or  administrator  may  be  re- 
quired to  file  his  final  account  for  settlement  in  the  office  of  the 
clerk  of  the  superior  court  by  a  citation  directed  to  him,  at  any  time 
after  two  years  from  his  qualification,  at  the  instance  of  any  person 
interested  in  the  estate ;  but  such  account  may  be  filed  voluntarily  at 
any  time;  and,  whether  the  accounting  be  voluntary  or  compulsory, 
it  shall  be  audited  and  recorded  by  the  clerk. 

Code,  s.  1402;  C.  C.  P.,  s.  481. 

XVII.     Accounting  Compelled. 

104.  By  special  proceeding  by  creditor.    Any  creditor  of  a 

deceased  person  may,  witliin  the  times  prescribed  by  law,  prosecute  a 
special  proceeding  or  a  civil  action  before  the  judge  in  his  own  name 
and  in  behalf  of  himself  and  all  other  creditors  of  the  deceased  with- 
out naming  them,  against  the  personal  representative  of  the  deceased. 


104  ADMINISTKATIOX— A'F//.  Accounting  Compelled.    Ch.   1 

to  compel  him  to  an  account  of  his  administration,  and  to  pay  the 
creditors  what  may  be  payable  to  them  respectively. 
Code,  s.  1448;  1871-2.  c.  213;   1876-7,  c.  241,  s.  6. 

105.  What  rules  govern.  The  said  special  proceeding  shall  be 
governed  by  the  rules  of  practice  prescribed  for  special  proceedings, 
except  so  far  as  the  same  are  modified  by  this  chapter. 

Code,  s.  1449;  1871-2,  c.  213,  s.  2. 

106.  When  and  where  summons  returnable.   The  .summons  in 

said  special  proceeding  shall  be  returnable  before  the  clerk  of  the 
superior  court  of  the  county  in  which  letters  testamentary  or  of 
administration  were  granted,  and  on  a  day  not  less  than  forty  nor 
more  than  one  hundred  days  from  the  issuing  thereof,  and  not  less 
than  tsventy  days  after  the  service  thereof. 

Code,  s.  1450;   1871-2,  c.  213,  s.  3. 

107.  Clerk  to  advertise  for  creditors,  when.   On  issuing  the 

summons,  the  clerk  shall  advertise  for  all  creditors  of  the  deceased 
to  appear  before  him  on  or  before  the  return  day  and  file  the  evi- 
dences of  their  claims. 

Code,  s.  1451;  1871-2,  c.  213,  s.  4. 

108.  How  advertisement  published.  The  advertisement  shall 
be  published  at  least  once  a  week  for  not  less  than  four  weeks  in 
some  newspaper  which  may  be  thought  liy  the  clerk  the  most  likely 
to  inform  all  the  ci'editors,  and  shall  also  be  posted  at  the  courthouse 
door  for  not  less  than  thirty  days.  If,  however,  the  estate  does 
not  exceed  three  thousand  dollars  in  value,  and  the  creditiuvs  are 
supposed  by  the  clerk  all  to  reside  within  the  county  or  to  be  kno\vn, 
publication  in  a  newsi)aper  may  be  omitted,  and  in  lieu  thereof  the 
advertisement  shall  be  posted  at  four  public  places  in  the  county, 
besides  the  courthouse  door.  Proof  of  personal  service  on  a  credi- 
tor or  that  a  copy  of  the  advertisement  was  sent  to  him  by  mail  at 
liis  usual  address  shall  be  as  to  him  equivalent  to  publication. 

Code,  s.   1452;   1903,  c.  134;   1871-2,  c.  213,  s.  5. 

109.  Creditors  to  file  claims;  appoint  agent.  The  creditors  of 

the  deceased  on  or  before  the  required  day  shall  file  with  the  clerk 
the  evidences  of  their  demands,  and  evei-y  creditor  on  filing  such 
claim  shall  endorse  thereon  or  otherwise  name  some  person  or  place 
within  the  town  in  which  the  court  is  held.  u])on  whom  or  where 
notices  in  the  cause  may  be  served  or  left,  otherwise  he  shall  be 
deemed  to  have  notice  of  all  motions,  orders  and  proceedings  in 
the  cause  filed  or  made  in  the  cleric's  ofllce. 
Code,  s.  1453;   1871-2,  c.  213,  s.  0. 

26 


110   ADMINISTEATION— A'lV/.  Accoimtlng  Compelled.    Ch.   1 

110.  How  claims  proven.  If  the  evidence  of  the  demand  be 
other  than  a  judgment,  or  some  writing  signed  by  the  deceased,  it 
shall  be  accompanied  by  the  oath  of  the  creditor,  or  if  he  be  non- 
resident or  infirm  or  absent,  or  in_any  other  proper  case,  of  some 
witness  of  the  transaction,  or  of  some  agent  of  the  creditor,  that  to 
the  best  of  his  knowledge  and  belief  the  claim  is  just,  and  that  all 
due  credits  have  been  given. 

Code,  s.  1454;   1871-2,  e.  213,  s.  7. 

111.  Representative  to  file  claims;  notice  to  creditors.   On  the 

day  of  his  appearance  the  personal  re]:)resentative  shall  on  oath 
give  to  the  clerk  a  list  of  all  claims  against  the  deceased  of  which 
he  has  received  notice  or  has  any  knowledge,  with  the  names  and 
residences  of  the  claimants  to  the  best  of  his  knowledge  and  belief; 
and  if  any  person  so  named  shall  have  failed  to  file  evidence  of  his 
claim,  the  clerk  shall  immediately  cause  a  notice  requiring  him  to 
do  so  to  be  served  on  him,  which  may. be- done  by  posting  the  same, 
directed  to  him  at  his  usual  address. 
Code,  s.  1455:  1871-2,  c.  213,  s.  8. 

112.  Clerk  to  exhibit  claims  to  representative.  On  the  day  fixed 

for  the  appearance  of  the  personal  representative,  the  clerk 
shall  exhibit  to  him  a  list  of  all  the  claims  filed  in  his  office  with 
the  evidences  thereof. 

Code,  s.   1456;    1871-2,  c.  213,  s.  9. 

113.  Representative  denying  claim,  notice  to  creditor.  Within 

five  days  thereafter  the  defendant  shall  state  in  writing  on  said 
list,  or  on  a  separate  paper,  which  of  said  claims  he  disputes  in 
whole  or  in  part.  The  clerk  shall  then  notify  the  creditor,  as  above 
provided,  that  his  claim  is  disputed,  and  the  creditor  shall  there- 
iipon  file  in  the  office  of  the  clerk  a  complaint  foimded  on  his  said 
claim,  and  the  pleadings  shall  be  as  in  other  cases. 
Code,  s.  1457;   1871-2,  e.  213,  s.  10. 

114.  Issues  joined,  cause  docketed  for  hearing.    If  the  issues 

joined  be  of  law,  the  clerk  shall  send  the  papers  to  the  judge  of  the 
superior  court  for  trial,  as  is  provided  for  by  the  chapter  on  Civil 
Procedure  in  like  cases.  If  the  issues  shall  be  of  fact,  the  clerk 
shall  send  so  much  of  the  record  as  may  be  necessary  to  the  next 
term  of  the  sxiperior  court  for  trial. 
Code,  s.  1458;   1871-2.  c.  213,  s.   11. 

115.  Costs  paid  by  representative  personally,  when.    If  any 

personal  representative  shall  deny  the  liability  of  his  deceased  upon 
any  claim  evidenced  as  is  provided  in  this  chapter,  and  the  is.sue 

27 


115   ADMIXISTRATIOX— A'TVZ.  Accoitnfing  Compelled.   Ch.   1 

shall  finally  be  decided  against  him,  the  costs  of  the  trial  shall  he 
paid  by  him  personally,  and  not  allowed  out  of  the  estate,  \niless 
it  shall  appear  that  he  had  reasonable  cause  to  contest  the  claim  and 
did  so  bona  fide. 

Code,  s.  1459;  1871-2,  c.  213,  s.  12. 

Note.     See  s.  97. 

116.  Representative  failing  to  appear,  procedure.  If  the  per- 
sonal representative  shall  fail  to  appear  on  the  return  day,  the 
clerk  or  judge  of  the  superior  court  may  permit  him  afterward  to 
appear  and  plead  on  such  terms  as  may  be  just. 

Code,  s.   1460;    1S71-2,  c.  213.  s.   13. 

117.  Clerk  to  state  an  account.  Immediately  after  the  return 
da}'  the  clerk  or  judge  shall  proceed  to  hear  such  evidence  as  shall 
be  brought  before  him,  and  to  state  an  account  of  the  dealings  of 
the  personal  representative  with  the  estate  of  his  deceased  according 
to  the  course  of  his  court. 

Code,  s.  1461;   1871-2,  c.  213.  s.  14. 

118.  Account  stated;  examined;   excepted  to;   signed.    After 

the  clerk  shall  have  stated  the  account  and  prepared  Iiis  report,  he 
shall  notify  all  the  parties  to  examine  and  except  to  the  same.  Any 
party  may  then  except  to  the  same  in  whole  or  in  part.  The  clerk 
shall  then  pass  on  the  exceptions  and  prepare  and  sign  his  final 
report  and  judgment,  of  which  the  parties  shall  have  notice. 
Code,  s.   1462;    1871-2,  c.  213,  s.   15. 

119.  Either  party  may  appeal;  security  given  for  costs.    Any 

party  may  appeal  from  a  final  judgment  of  the  clerk  to  the  judge 
of  the  superior  court  in  term  time,  on  giving  an  undertaking  with 
surety,  or  making  a  deposit,  to  ])ay  all  costs  which  shall  be  recovered 
against  him.  If  any  creditor  shall  appeal  and  give  such  security, 
his  appeal  .shall  be  deemed  an  appeal  by  all  who  are  damaged  by 
the  judgment,  and  no  other  creditor  shall  be  required  to  give  any 
imdertaking. 

Code,  s.  1464:   1871-2.  c.  213,  p.  17. 

120.  Papers  filed;  cause  docketed  for  trial,   on  an  appeal  the 

clerk  shall  file  his  report  an<l  judgini'nt  and  all  the  papers  in  his 
office  as  clerk  of  the  supciidr  ciiurt.  and  enter  the  case  on  his  trial 
docket  for  the  next  term. 

Code,  s.   1465;    1S71-2.  e.  213,  s.   18. 

121.  Certain  creditors  may  docket  judgments,  when.    If  the 

excejitions   and   (piestions,   from   the   decisidu   on    which   the   appeal 

28 


121   ADMIXISTEATIOX— XT7/.  Accounting  Compelled.   Ch.   1 

is  taken,  affect  only  the  creditors  in  one  or  more  classes,  the  credi- 
tors in  the  prior  classes  by  the  leave  of  the  clerk,  or  of  the  judge 
of  the  superior  court,  may  docket  their  judgments  and  issue  execii- 
tion  thereon. 

Code,  s.  U06:   1871-2.  c.  -213,  s.  1(1. 

122.  Judgment,  if  assets  sufficient  to  pay  a  class,   if  upon 

taking  the  account  it  shall  be  admitted,  or  be  found,  without  appeal, 
that  the  defendant  has  assets  sufficient,  after  the  deduction  of  all 
jirojjer  costs  and  charges,  to  pay  all  the  claims  which  have  been 
]n-esented  of  any  one  or  more  of  the  classes,  the  clerk  shall  give 
judgment  in  favor  of  the  creditors  whose  debts  of  such  classes  have 
been  admitted,  or  adjudged  by  any  competent  court;  and  if  any 
claim  in  any  j^referred  class  be  in  litigation,  the  amount  of  such 
claim,  with  the  probable  costs  of  the  litigation,  shall  be  left  in  the 
hands  of  the  i^ersonal  representative,  and  not  carried  to  the  ci'edit  of 
any  subsequent  class  until  tlie  litigation  is  ended. 

Code,  s.   14G7:    1871-2.  c.   21.3.   s.  20. 

123.  Judgment,  if  assets  insufficient  to  pay  a  class.    If  the 

assets  be  insufficient  to  pay  in  full  all  the  claims  of  any  class,  the 
amounts  thereof  having  been  found  or  admitted  as  aforesaid,  the 
clerk  may  adjudge  pa;^mient  of  a  certain  part  of  such  claims,  propor- 
tionate to  the  assets  applicable  to  debts  of  that  class. 

Code,  s.   14GS;    1871-2,  c.  213.  s.  21. 

124.  What  judgment  contains;  execution.   All  judgments  given 

by  a  judge  or  clerk  of  the  superior  court  against  a  personal  repre- 
sentative for  any  claim  against  his  deceased  shall  declare — 

1.  The  certain  amount  of  the  creditor's  demand. 

2.  The  amount  of  assets  which  the  personal  representative  lias 
applicable  to  such  demand.  Execution  may  issue  only  for  this 
last  sum  with  interest  and  costs. 

Code,  s.  1469;   1871-2,  e.  213.  s.  22. 

125.  When  judgment  to  fix  with  assets.   Xo  judgment  of  any 

court  against  a  personal  representative  shall  fix  him  with  assets, 
except  a  judgment  of  the  judge  or  clerk,  rendered  as  aforesaid,  or 
the  judgment  of  some  appellate  court  rendered  vipon  an  apjieal  from 
such  judgment.  All  other  judgments  shall  be  held  merely  to  ascer- 
tain the  debt,  unless  the  personal  representative  by  pleading  ex- 
pressly admits  assets. 

Code,  s.  1470:   1871-2.  c.  213,  s.  23. 

126.  Form  and  effect  of  execution.    All  executions  issued  ui.<.n 

the  order  or  judgment  of  the   judge  or  clerk  or  of  any   appellate 


126   ADMINISTEATIOX— A'lV/.  AccomUing  Compelled.    Cli.   1 

court  against  any  personal  representative,  rendered  as  aforesaid, 
shall  run  against  the  goods  and  chattels  of  the  deceased,  and  if 
none,  then  against  the  goods  and  chattels,  lands  and  tenements  of 
the  representatiA-e.  And  all  such  judgments  docketed  in  any  county 
shall  he  a  lien  on  the  property  for  which  execiition  is  adjudged  as 
fully  as  if  it  were  against  him  jjersonally. 
Code,  s.  1471;  1871-2.  c.  213,  s.  24. 

127.  Report  evidence  of  assets  only  as  of  its  date.  The  account 

and  report   and   adjudication  by  tlie  judj;e.  clerk  or  any  appellate 
court  shall  not  be  evidence  as  to  the  assets  except  on  the  day  to 
which  such  adjudication  relates. 
Code,  f?.  1472:   1871-2,  c.  213,  s.  2.5. 

128.  Assets  subsequent  to  report.  Iiow  shown.   Any  creditor 

may  afterwards,  on  filing  an  affidavit  by  himself  or  his  agent  that 
he  believes  that  assets  have  come  to  the  hands  of  the  personal  rep- 
resentative since  that  day,  and  on  giving  an  undertaking,  with 
surety,  or  making  a  deposit  for  the  costs  of  the  personal  representa- 
tive, may  sue  out  a  summons  against  him  alleging  subsequent  assets, 
and  the  proceedings  thereon  shall  he  as  hereinbefore  prescribed,  so 
far  as  the  same  may  be  necessary. 
Code,  s.  1473:  1871-2,  c.  213.  s.  26. 

129.  Suit  for  accounting  or  debt  brought  to  term.   In  addition 

to  the  remedy  by  special  proceeding,  actions  against  executors, 
administrators,  collectors  and  guardians  may  be  brought  originally  to 
the  superior  cuurt  at  term  time ;  and  in  all  such  cases  it  shall  be  com- 
petent for  the  coTirt  in  which  said  actions  shall  be  pending  to  order  an 
account  to  be  taken  by  such  person  -or  persons  as  said  court  may 
designate,  and  to  adjudge  the  application  or  distribution  of  the 
fund  ascertained,  or  to  grant  other  relief,  as  the  nature  of  the  case 
may  require. 

Code.  ss.  215,  1.511;  1876-7,  c.  241.  p.  6. 

130.  Personal  assets  insufficient,  land  proceeded  against.    Tf 

it  shall  appear  at  any  time  during,  or  upon,  or  after  the  taking  of 
the  account  of  a  personal  representative  that  his  personal  assets  are 
insufficient  to  pay  the  debts  of  the  deceased  in  full,  and  that  he  died 
seized  of  real  property,  it  shall  be  the  duty  of  the  judge  or  clerk, 
at  the  instance  of  any  party,  to  issue  a  snnnnons  in  the  name  of  the 
personal  representative  or  of  the  creditors  generally,  to  the  heirs, 
devi.sees  and  others  in  possession  of  the  lands  of  the  decoa.sed,  to 
appear  and  show  cause  why  said  lands  shonld  not  lie  sold  for  assets. 
Code,  s.  1474;   1871-2,  e.  213,  s.  27. 


131    ADMINISTEATIOX— AT//.  Accounting  Compelled.   Ch.   1 

131.  Proceedings  to  sell  real  estate,  how  conducted.   Upon  the 

return  of  the  summons  the  proceeding  shall  be  as  is  direoted  in 
other  like  cases. 

Code,  s.   1475;   1871-2,  c.  213,  s.  28. 

XVIII.     Distribution. 

132.  Order  of  distribution.  The  surplus  of  the  estate,  in  case 
of  intestacy,  shall  be  distributed  in  the  following  manner,  e.xcept 
as  hereinafter  provided: 

1.  If  there  are  not  moi-e  than  two  children,  one-third  part  to  the 
widow  of  the  intestate,  and  all  the  residue  by  equal  portions  to  and 
among  the  children  of  the  intestate  and  such  persons  as  legally  rep- 
resent such  children  as  may  then  be  dead. 

2.  If  there  are  more  than  two  children,  then  the  widow  shall 
share  equally  with  all  the  children  and  be  entitled  to  a  child's 
part. 

3.  If  there  be  no  child  nor  legal  representative  of  a  deceased 
child,  then  one-half  the  estate  shall  be  allotted  to  the  widow,  and 
the  residue  be  distributed  equally  to  every  of  the  next  of  kin  of  the 
intestate,  who  are  in  equal  degree,  and  to  those  who  legally  repre- 
sent them. 

4.  If  there  be  no  widow,  the  estate  shall  be  distributed,  by  equal 
jDortions,  among  all  the  children,  and  such  persons  as  legally  rep- 
resent such  children  as  may  be  dead. 

5.  If  there  be  neither  widow  nor  children,  nor  any  legal  i-opre- 
sentative  of  the  children,  the  estate  shall  be  distributed  equally  to 
every  of  the  next  of  kin  of  the  intestate,  who  are  in  equal  degree, 
and  those  who  legally  represent  them. 

6.  If,  after  the  death  of  the  father  and  in  the  lifetime  of  the 
mother,  any  of  his  children  shall  die  intestate,  without  wife  or  chil- 
dren, every  brother  or  sister,  and  the  representatives  of  them,  shall 
have  an  equal  share  with  the  mother  of  the  deceased  child. 

7.  If  there  be  no  child  nor  legal  representative  of  a  deceased 
child  nor  any  of  the  next  of  kin  of  the  intestate,  then  the  widow, 
if  there  be  one,  shall  be  entitled  to  all  the  personal  estate  of  such 
intestate. 

Code,  ».  1478:   1893,  c.  82;   1868-9,  c.  113,  s.  53. 

Note.     For  distribution  of  recovery  for  wrongful  death,  see  s.  59. 

133.  Advancements  accounted  for.    Children  who  shall  have 

any  estate  by  the  settlement  of  the  intestate,  or  shall  be  advanced 
by  him  in  his  lifetime,  shall  account  with  each  other  for  the  same 
in  the  distribution  of  the  estate  in  the  manner  as  provided  by  the 
second  rule  in  the  chapter  entitled  Descents,  and  shall  also  account 


133  ADMINISTKATIOX— A'T//7.  DIsfribufion.  Ch.   1 

for  the  same  to  the  widow  of  the  iiite.-;tate  in  ascertaining  lier 
child's  part  of  the  estate. 

Code.   s.   1483;    18C8-9,  c.   113,  s.   54. 

134.  Children  advanced  to  render  schedule.  Where  any  par- 
ent shall  die  intestate,  who  had  in  his  or  hrr  litVtinic  civen  to,  or 
])nt  in  the  act\ial  p<issessii:in  of,  any  of  his  i:ir  lier  children,  any  per- 
sonal property'  of  what  nature  or  kind  soever,  snch  child  shall  canse 
to  be  given  to  the  administrator  or  collector  of  the  estate  an  inven- 
toi"y,  on  oath,  setting  forth  therein  the  particulars  by  him  or  her 
received  of  the  intestate  in  his  or  her  lifetime. 

Code,  s.  1484;   1808-0.  c.  113,  s.  55. 

135.  Children  refusing  to  account  for  advances  not  to  share. 

In  case  any  child  who  had,  in  the  lifetime  of  the  intestate,  received 
a  part  of  said  estate,  shall  refuse  to  give  such  inventory,  he  shall 
be  considered  to  have  had  and  received  his  full  share  of  the  de- 
ceased's estate,  and  shall  not  be  entitled  to  receive  any  fui'ther  part 
or  share. 

Code,  s.   1483;    18G8-9,  c.   113.  s.  56. 

136.  Illegitimate  children  next  of  kin  to  mother.  Every  illegiti- 
mate child  of  the  mother  dying  intestate,  or  the  issue  of  such 
illegitimate  child  deceased,  shall  be  considered  among  her  next  of 
kin,  and  as  such  shall  be  entitled  to  a  share  of  her  jicrsonal  estate 
as  prescribed  in  this  chapter. 

Code,  s.  I486;   1808-9,  e.  113,  s.  57, 

137.  Illegitimate  children  next  of  kin  to  each  other,  illegiti- 
mate children,  born  of  the  same  mother,  shall  be  considered  legiti- 
mate as  between  themselves  and  their  representatives,  and  their 
per.sonal  estate  shall  be  distributed  in  the  same  manner  as  if  they 
had  been  born  in  lawful  wedlock.  And  in  case  of  the  death  of  any 
such  child  or  his  issue,  without  leaving  issue,  his  estate  shall  be 
distributed  among  his  mother  and  all  snch  ]x>rsiins  as  would  be  his 
ne.xt  of  kin  if  all  such  children  had  been  born  in  lawful  wedlock. 

Code,  s.   1487;    1808-9,  c.   113,  s.  58. 

XIX.       AfTEK-BORX    CniLDKEX. 

138.  Share  in  realty,  in  what  allotted.   The  .share  of  an  after- 

burn  child  in  real  estate  sliall  bo  allotted  to  him  out  of  any  lands 
not  devised,  if  there  be  enough  for  that  ]iuri)ose;  and  if  there  be 
none  undevised,  or  not  enough,  then  the  whole  share,  or  the  defi- 
ciency, as  the  case  may  be,  shall  be  made  up  of  the  lands  devised ; 
and  so  much  thereof  shall  be  taken  from  the  several  devisees  accord- 


138      ADMINISTRATION— X7A'.  Afier-hom  Children.     Ch.  1 

ing  to  tlieir  resjjective  values,  as  near  as  may  be  convenient,  as  will 
make  the  proper  share  of  such  child. 
Code,  s.  1536;   1808-9,  c.  113,  s.  108. 

139.  Share  in  personalty,  in  what  allotted.   The  share  of  an 

after-born  child  in  the  personal  estate  shall  be  paid  and  delivered 
to  him  out  of  any  such  estate  not  bequeathed,  if  there  be  enough 
for  that  purpose ;  and  if  there  be  none  undisposed  of,  or  not  enough, 
then  the  whole  share,  or  the  deficiency,  as  the  case  may  be,  shall 
be  made  up  from  the  estate  bequeathed ;  and  so  much  shall  be  taken 
from  the  several  legacies,  according  to  their  respective  values,  as 
will  make  the  proper  share  of  such  child. 
Code,  s.  1537;   1868-9,  c.  113,  s.   109. 

140.  Share  in  personalty,  when  allotted  in  proceeds  of  realty. 

If,  after  satisfaction  of  the  child's  share  of  real  estate  out  of  unde- 
vised lands,  there  be  a  surplus  of  such  lands,  and  there  be  no  per- 
sonal estate  undisposed  of,  or  not  enough  to  make  up  his  share  of 
such  estate,  then  the  surplus  of  undevised  land,  or  as  much  as  may 
be  necessary,  shall  be  sold  and  the  proceeds  applied  to  making  \ip 
his  share  of  personal  estate.  And  if,  after  satisfaction  of  the  child's 
share  of  personal  estate  out  of  property  undisposed  of  by  the  will, 
there  be  a  surphis  of  such  jDroperty,  then  the  surplus  thereof  shall 
be  applied,  as  far  as  it  will  go,  in  exoneration  of  land,  both  devised 
and  descended;  and  the  same  shall  be  set  apart  and  secured  as  real 
estate  to  such  child,  if  an  infant  non  compos  or  feme  covert. 
Code,  s.  1538;   1868-9,  e.  113,  s.  110. 

141.  Decree  of  contribution  for  share  In  realty,  effect  of.   Upon 

the  allotment  to  such  child  of  any  real  estate  in  the  manner  afore- 
said, he  shall  thenceforth  be  seized  thereof  in  fee-simple ;  and  the 
court  shall  give  judgment  severally,  in  favor  of  such  of  the  devisees 
and  legatees,  of  whose  lands  and  legacies  more  has  been  taken  away 
than  in  proportion  to  the  respective  values  of  said  lands  and  legacies, 
against  siich  of  said  devisees  and  legatees,  of  whose  lands  and  leg- 
acies a  just  proportion  has  not  been  taken  away,  for  such  sums  as 
will  make  the  contribution  on  the  part  of  each  and  every  of  them 
equitable,  and  in  the  ratio  of  the  values  of  the  several  devises  and 
legacies. 

Code.   s.   1539;   1868-9,  c.   113.  s.   111. 

142.  When  deemed  legatee  or  devisee.    An  after-born  child 

after  such  decrees  shall  be  considered  and  deemed  in  law  a  legatee 
and  devisee  as  to  his  portion,  shall  be  styled  as  such  in  all  legal 
proceedings,  and  shall  l)e  liable  to  all  the  obligations  and  duties  by 
law  imposed  on  such :  Provided,  that  all  judgments  or  decrees  bona 

Rev.  Vol.  1—2  33 


142      ADMI:NTISTRATI0X— X/X.  After-horn   Children.      Ch.  1 

fide  obtained  against  the  devisees  and  legatees  previously  to  the 
preferring  of  any  petition,  and  which  were  binding  upon  or  ought 
to  operate  upon  the  lands  and  chattels  devised  or  bequeathed,  shall 
be  carried  into  execution  and  effect  notwithstanding,  and  the  jjeti- 
tioncr  shall  take  his  ijortion  completely  subject  thereto:  Provided 
further,  that  any  suit  instituted  against  the  devisees  and  legatees 
previously  to  such  petition  shall  not  be  abated  or  abatable  thereby 
nor  by  the  decree  thereon,  but  shall  go  on  as  instituted,  and  the 
judgment  and  decree,  unless  obtained  by  collusion,  be  carried  into 
execution;  but  on  the  filing  of  the  petition,  during  the  pendency 
of  such  suit,  the  petitioner,  by  guardian,  if  an  infant,  may  become 
a  defendant  in  the  suit. 

Code,  s.   1540;   1S68-9,  c.   113,  s.   11-2. 

143.  If  no  petition  filed,  how  estate  settled.   In  case  no  petition 

shall  be  filed  within  two  years,  as  herein  prescribed,  the  executor  or 
administrator  with  the  will  annexed,  before  he  shall  pay  or  deliver 
the  legacies  in  the  will  given,  or  before  paying  to  the  next  of  kin  of 
the  testator  any  residue  undisposed  of  by  the  will,  shall  call  upon 
the  legatees,  devisees,  heirs  and  next  of  kin,  and  the  said  after-born 
child,  by  petition  in  the  superior  court,  to  litigate  their  respective 
claims,  and  shall  pray  the  court  to  ascertain  the  share  to  which  said 
child  shall  be  entitled,  and  to  apportion  the  shares  and  sums  to 
which  the  legatees,  devisees,  heirs  or  next  of  kin  shall  severally  con- 
tribute toward  the  share  to  be  allotted  to  said  child,  and  the  court 
shall  adjudge  and  decree  accordingly. 
Code,  s.  1541;   1868-9,  c.  113,  s.  113. 

XX.     Settlement. 

144.  Legacies  and  distributive  shares;  how  recovered.  Leg- 
acies and  distributive  shares  may  be  recovered  from  an  executor, 
administrator  or  collector  by  petition  preferred  in  the  superior  court, 
at  any  time  after  the  lapse  of  two  years  from  his  qualification, 
unless  the  executor,  administrator  or  collector  shall  sooner  file  his 
final  account  for  settlement.  The  suit  shall  be  commenced  and  the 
proceedings  therein  conducted  as  prescribed  in  other  cases  of  special 
jjroceedings. 

Code,   s.   1510;    1868-0,  c.   113,   s,   83. 

145.  Distributive  shares  paid  to  clerk,  when.  It  shall  lie  com- 
petent for  any  executor,  administrator  or  collector,  at  any  time 
after  twelve  months  from  the  date  of  letters  testamentary  or  of 
administration,  to  pay  into  the  oflice  of  clerk  of  the  superior  court 
of  the  county  where  such  letters  were  granted,  any  moneys  belong- 


145  ADMINISTRATION— XZ.  Settlement.  Cb.  1 

r 
ing  to  the  legatees  or  distributees  of  the  estate  of  his  testator  or 
intestate,  and  such  payment  shall  have  the  effect  to  discharge  such 
executor,  administrator  or  collector  and  bis  sureties  on  his  official 
bond  to  the  extent  of  the  amount  so  paid. 

Code,  s.   1543;    1881,  c.  305,  s.   1. 

146.  Clerk  to  give  receipt  under  seal,   it  shall  be  the  duty  of 

the  clerk,   in  the  cases  provided  for  in  the  preceding  section,   to 
receive  such  money  from  any  executor,  administrator  or  collector, 
and  to  execute  a  receipt  for  the  same  under  the  seal  of  his  office. 
Code,  s.  1544;  1881,  c.  305,  s.  3. 

147.  Must  be  made  at  end  of  two  years.  No  executor,  admin- 
istrator or  collector,  after  two  years  from  bis  qualification,  shall 
hold  or  retain  in  his  hands  more  of  the  deceased's  estate  than 
amounts  to  his  necessary  charges  and  disbursements  and  such  debts 
as  he  shall  legally  pay ;  but  all  such  estate  so  remaining  shall, 
iimnediately  after  the  expiration  of  two  years,  be  divided  and  be 
delivered  and  paid  to  the  person  to  whom  the  same  may  be  due 
by  law  or  the  will  of  the  deceased. 

Code,   s.   14S8;    1868-9,  c.   113,   s.   59. 

148.  What  may  be  retained.  If,  on  a  final  accounting  before 
the  judge  or  clerk,  it  appears  that  any  claim  exists  against  the 
estate  which  is  not  due,  or  on  which  suit  is  pending,  the  judge  or 
clerk  shall  allow  a  sum  sufficient  to  satisfy  such  claim,  or  the  pro- 
portion to  which  it  may  be  entitled,  to  be  retained  in  the  hands  of 
the  executor,  administrator  or  collector,  for  the  purpose  of  being 
applied  to  the  payment  when  due  or  when  recovered,  with  the 
expense  of  contesting  the  same.  The  order  allowing  such  sum  to 
be  retained  must  specify  the  amount  and  nature  of  the  claim. 

Code,  s.  1489;   1868-9,  c.  113,  s.  GO. 

149.  Commissions  allowed;  proviso.  The  clerks  of  the  superior 
court  are  authorized  and  directed  to  allow  commissions  to  execu- 
tors, administrators  and  collectors  on  filing  their  final  accounts  for 
settlement,  not  exceeding  five  per  cent,  upon  the  amoimt  of  receipts 
and  expenditures,  which  shall  appear  to  be  fairly  made  in  the  course 
of  administration ;  and  such  allowance  raa\  be  retained  out  of  the 
assets  against  creditors  and  all  other  persons  claiming  an  interest 
in  the  estate.  And  the  clerk,  in  making  such  allowance,  shall  con- 
sider the  trouble  and  time  expended  in  the  management  of  the 
business :  Provided,  that  in  sales  of  land  for  payment  of  debts, 
commissions  shall  not  be  alloM'ed  on  any  larger  amount  of  the  pro- 
ceeds than  the  sum  actually  applied  in  payment  of  debts:  Provided 
further,  that  nothing  in  this  section  contained  shall  prevent  any  exec- 


149  ADMINISTEATIOX— i'Z.  Setilement.  Ch.  1 

utor,  administrator  or  collector  from  retaining  a  reasonable  sum  for 
necessary  charges  and  disbursements  in  the  management  of  the  estate. 
And  any  judge  of  the  superior  court  or  any  commissioner  appointed 
by  said  court  to  take  and  state  an  account  of  the  assets  of  any  deceased 
person  in  the  hands  of  an  executor,  administrator  or  collector,  upon 
any  plea  of  fully  administered,  shall  have  power  and  be  authorized 
and  directed  to  allow  such  executor,  administrator  or  collector  not 
exceeding  five  per  cent,  upon  the  amount  of  receipts  and  expendi- 
tures which  shall  appear  upon  the  trial  of  said  cause  or  taking  of 
such  account  to  have  been  fairly  made  in  the  course  of  adminis- 
tration. 

Code,  s.  1524;  1868-9,  e.  113,  s.  95;  1869-70,  c.  189. 

150.  Petition  may  be  filed  for.    An  executor,  administrator  or 

collector,  who  has  filed  his  final  account  for  settlement,  may,  at  any 
time  thereafter,  file  his  petition  against  the  parties  interested  in 
the  due  administration  of  the  estate,  in  the  superior  court  of  the 
county  in  which  he  qualified,  or  before  the  judge  in  term  time, 
setting  forth  the  facts,  and  praying  for  an  account  and  settlement 
of  the  estate  committed  to  his  charge.  The  petition  shall  be  ]iro- 
ceeded  on  in  the  manner  prescribed  by  law,  and,  at  the  final  hear- 
ing thereof,  the  judge  or  clerk  may  make  such  order  or  decree  in 
the  i^remises  as  shall  seem  to  be  just  and  right. 
Code,  s.  1525;   1868-9,  c.  11.3,  s.  96. 

151.  Fund  due  absent  party  or  infant  without  guardian  paid 
to  court;  party  not  heard  of  in  seven  years,  procedure.   When 

any  balance  of  money  or  other  estate  which  is  due  an  absent  defend- 
ant or  infant  without  guardian  is  found  in  the  hands  of  an  execu- 
tor, administrator  or  collector  who  has  preferred  his  petition  for 
settlement,  the  court  or  judge  may  direct  such  money  or  other 
estate  to  be  paid  into  court,  to  be  invested  upon  interest,  or  other- 
wise managed  under  the  direction  of  the  judge,  for  the  use  of  such 
absent  pei-son  or  infant.  When  the  party  entitled  to  the  money  has 
not  been  heard  of  for  seven  years  or  more  the  fund  shall  be  distributed 
among  the  next  of  kin  of  the  absent  deceased  person  as  prescribed  by 
statute,  in  the  following  manner :  An  administrator  shall  be  appointed 
aiid  made  a  party  to  a  special  j^roceediug  in  which  a  verified  petition 
shall  be  filed  setting  forth  the  facts,  with  names  of  the  parties  entitled, 
and  such  other  evidence  as  may  be  req\iired  by  the  clerk  in  whose 
office  said  fund  was  deposited,  and  the  proceedings  conducted  as 
other  special  proceedings;  and  the  order  disposing  of  the  ivmd  shall 
be  approved  and  confirmed  by  the  judge,  either  in  term  or  at 
chambers. 

Code,  s.  1526;   1893,  c.  317;   1868-9,  c.  113,  s.  97. 


152  ADMINISTRATION— ZZ.  Settlement.  Ch.  1 

152.  Liability  and  compensation  of  clerk.   Every  clerk  of  the 

superior  court  who  may  be  intrusted  with  money  or  other  estate  in 
such  case  shall  be  liable  on  his  official  bond  for  the  faithful  dis- 
charge of  the  duties  enjoined  upon  him  by  the  judge  in  relation 
to  said  estate,  and  he  may  receive  such  compensation  for  his  serv- 
ices as  the  judge  may  allow. 
Code,  s.  1527;  1868-9,  e.  113,  s.  98. 

153.  When  paid  to  university.  All  sums  of  money,  or  other 
estate  of  whatever  kind,  which  shall  remain  in  the  hands  of  any 
executor,  administrator  or  collector  for  five  years  after  his  qualifi- 
cation, unrecovered  or  unreclaimed  by  suit,  by  creditors,  next  of  kin, 
or  others  entitled  thereto,  shall  be  paid  by  the  executor,  administra- 
tor or  collector  to  the  trustees  of  the  university  of  North  Carolina; 
and  the  said  trustees  are  authorized  to  demand,  sue  for,  recover  and 
collect  such  moneys  or  other  estate  of  whatever  kind,  and  hold  the 
same  without  liability  for  profit  or  interest,  until  a  just  claim  there- 
for shall  be  preferred  by  creditors,  next  of  kin,  or  others  entitled 
thereto ;  and  if  no  such  claim  shall  be  preferred  within  ten  years 
after  such  money  or  other  estate  be  received  by  the  said  trustees, 
then  the  same  shall  be  held  by  them  absolutely. 

Code,  s.  1504;    1868-9,  e.  113,  s.  76. 

154.  Who  parties  to  proceeding  for  settlement.   In  all  actions 

and  proceedings  by  administrators  or  executors  for  a  final  settle- 
ment of  their  estates  and  trusts,  whether  at  the  instance  of  distribu- 
tees, legatees  or  creditors  or  of  themselves,  if  the  personal  represent- 
ative die  or  be  removed  pending  such  actions  or  proceedings,  the 
administrator  de  bonis  non  or  administrator  with  the  will  annexed, 
as  the  case  may  be,  shall  be  made  party  as  provided  in  other  cases, 
or  in  such  way  as  the  court  may  order,  and  the  action  or  proceeding 
shall  be  conducted  to  its  end,  and  such  judgitient  shall  be  rendered 
on  the  confirmation  of  the  report,  or  upon  the  terms  of  settlement, 
if  any  shall  be  agreed  upon  by  the  parties,  as  will  fully  protect  and 
discharge  all  parties  to  the  record. 
1893,  e.  206. 

155.  Legacies  ordered  paid  within  two  years,  when.   It  shall 

be  in  the  power  of  the  judge  or  court,  on  petition  or  action,  within 
two  years  from  the  qualification  of  an  executor,  administrator  or 
collector,  to  adjudge  the  payment  in  full  or  partially,  of  legacies 
and  distributive  shares,  on  such  terms  as  the  court  shall  deem 
proper,  when  there  shall  be  no  necessity, for  retaining  the  fund. 
Code,  s.  1512. 


156   ADMII^ISTEATIOX— A'A'7.  Actions  hy  and  against.    Vh.   1 
XXI.  Actions  By  and  Against  Representative. 

1 56.  Right  of  action  survives  to.  and  against.    Upon  the  death 

of  any  person,  all  demands  whatsoever,  and  rights  to  prosecute  or 
defend  any  action  or  special  proceeding,  existing  in  favor  of  or 
against  such  person,  except  as  hereinafter  provided,  shall  survive 
to  and  against  the  executor,  administrator  or  collector  of  his  estate. 

Code,  s.  1490;   1868-9,  c.  113,  s.  63. 

Xote.     For  action  for  wrongful  death,  see  ss.  59,  60. 

157.  Actions  which  do  not  survive.    The  following  rights  of 

action  do  not  survive: 

1.  Causes  of  action  for  libel  and  for  slander,  except  slander  of 
title. 

2.  Causes  of  action  for  false  imprisonment,  assault  and  battery, 
or  other  injuries  to  the  person,  -where  such  injury  does  not  cause 
the  death  of  the  injured  party. 

3.  Causes  where  the  relief  sought  could  not  be  enjoyed,  or  granting 
it  would  be  nugatory,  after  death. 

Code,  s.  1491;   1868-9,  c.  113,  s.  64. 

158.  Right  of  action  survives  to  successor.  Executors  and 
administrators  shall  have  actions  in  like  manner  as  the  first  testator 
or  intestate  might  have  had  against  any  person,  his  executors  and 
administrators,  in  all  cases,  except  where  such  actions,  being  com- 
menced, are  not  allowed  by  statute  to  be  revived  on  the  death  of  any 
party. 

Code,  s.  1497;  1868-9,  c.  113,  s.  69;  1905,  c.  286. 

159.  (Way  maintain  any  appropriate  action  to  recover  assets. 

Executors,  administrators  or  collectors  may  maintain  any  appro- 
priate action  or  proceeding  to  recover  assets,  and  to  recover  posses- 
sion of  the  real  property  of  which  executors  are  authorized  to  take 
possession  by  will;  and  to  recover  for  any  injury  done  to  such 
assets  or  real  property  at  any  time  subsequent  to  the  death  of  the 
decedent. 

Code,  s.   loOl;   1868-9,  c.   113,  s.  73. 

160.  iVIust  be  in  representative  capacity.  All  actions  and  pro- 
ceedings brought  by  or  against  executors,  administrators  or  collec- 
tors, upon  any  cause  of  action  or  right  to  which  the  estate  is  the 
real  party  in  interest,  must  be  brought  by  or  against  them  in  their 
representative  capacity. 

Code,  s.  1.507;  1868-9,  c!  113.  s.  79. 

161.  Appearance  by.  or  service  on.  one  binds  all.  In  actions 

against  several  executors,  administrators  or  collectors  they  are  all 


161   ADMIK'ISTEATIOX— XX/.  Actions  hy  and  against.    Ch.  1 

to  be  considered  as  one  person,  representing  the  decedent ;  and  if  the 
summons  is  served  on  one  or  more,  but  not  all,  the  plaintiff  may 
proceed  against  those  served,  and  if  he  recovers,  judgment  may  be 
entered  against  all. 

Code,  s.  1508;   1868-9,  c.  113,  s.  81. 

162.  Action  against,  when;  execution  issues,  how.   An  action 

may  be  brought  by  a  creditor  against  an  executor,  administrator  or 
collector  on  a  demand  at  any  time  after  it  is  due,  but  no  execution 
shall  issue  against  the  executor,  administrator  or  collector  on  a 
judgment  therein  against  him  without  leave  of  the  court,  upon 
notice  of  twenty  days  and  upon  proof  that  the  defendant  has  refused 
to  pay  such  judgment  its  ratable  part,  and  such  'judginent  shall 
be  a  lien  on  the  property  of  the  defendant  only  from  the  time  of 
such  leave  granted. 

Code,  s.   1509;   1808-9,  c.  113,  s.  82. 

163.  Service  by  publication,  when.  Whenever  process  may  issue 
against  an  executor  who  has  not  given  bond,  and  the  same  can  not 
be  served  upon  him  by  reason  of  his  absence  or  concealment,  service 
of  such  process  may  be  made  by  publication  in  the  manner  pre- 
scribed in  other  civil  actions. 

Code.  s.   1.523;    1808-9,  c.  113,  s.  94. 

164.  Successor  may  issue  execution,  when.    Any  executor, 

administrator  or  collector  may  have  execution  issued  on  any  judg- 
ment recovered  by  any  person  who  preceded  him  in  the  adminis- 
tration of  the  estate,  or  by  the  decedent,  in  the  same  cases  and  the 
same  manner  as  the  original  plaintiff  might  have  done. 

Code,  s.   1513;    1808-9.  c.   113,  s.   84. 

165.  Letters  revoked,  action  continues.   In  case  the  letters  of 

an  executor,  administrator  or  collector  are  revoked,  pending  an 
action  to  which  he  is  a  party,  the  adverse  party  may,  notwithstand- 
ing, continue  the  action  against  him  in  order  to  charge  him  per- 
sonally. If  such  party  does  not  elect  so  to  do,  within  six  months 
after  notice  of  such  revocation,  the  action  may  be  continued  against 
the  successor  of  the  executor,  administrator  or  collector  in  the  ad- 
ministration of  the  estate,  in  the  same  manner  as  in  case  of  death. 
Code,  s.  1514;   18G8-9,  c.  113,  s.  85. 

XXII.     Miscellaneous  Peovisions. 

166.  How  personal  representatives  hold.   Every  estate  vested 

in  executor.?,  administrators  or  collectors,  as  such,  shall  be  held  by 
them  in  joint  tenancy. 

Code,  s.  1502;   1868-9,  c.  113,  s.  74. 

39 


167      ADMIXISTRATIOX— XZ7/.  Miscel  Provisions.      Cb.  1 

•  167.  Personal  representative  liable.  The  executors  and  admin- 
istrators of  persons,  who,  as  rightful  executors  or  as  executors  in 
their  own  wrong,  or  as  administrators,  shall  waste  or  convert  to  their 
own  use  any  estate  or  assets  of  any  person  deceased,  shall  be  charge- 
able in  the  same  manner  as  their  testator  or  intestate  might  have 
been. 

Code,  s.  1495;   1868-9,  c.  113,  s.  68. 

168.  Bona  fide  administration  under  act  of  1868-9  validated. 

If  any  person  shall  have  bona  fide  administered  any  estate  or  any 
part  of  the  estate  of  any  deceased  person  whereof  original  adminis- 
tration was  granted  prior  to  the  first  day  of  July,  under  the  said 
act  of  one  thousand  eight  hundred  and  sixty-eight  and  one  thousand 
eight  hundred  and  sixty-nine,  lie  shall  not  be  deemed  guilty  of  a 
devastavit. 

Code,  s.  1434;  1869-70,  c.  58,  s.  2. 

169.  Time  in  which  act  to  be  done  may  be  extended.   If  no 

length  of  notice,  or  no  time  for  the  doing  of  an  act,  is  stated  in  this 
chapter,  the  time  shall  be  reasonable,  and  in  any  case  it  may  be 
enlai-ged  by  the  clerk  from  time  to  time,  or  by  the  judge  of  the 
superior  court,  on  application  to  him  or  on  appeal  to  him  from  the 
clerk. 

Code,  s.  1463;   1871-2,  c.  213,  s.  16. 

170.  Powers  under  will  not  affected;  proviso.   Xothing  in  this 

chapter  shall  be  construed  to  affect  the  discretionary  powers,  trusts 
and  authorities  of  an  executor  or  other  trustee  acting  under  a  will : 
Provided,  creditors  be  not  delayed  thereby,  nor  the  order  changed 
in  which  by  law  they  are  entitled  to  be  paid. 

Code,  s.  1415;   1868-9,  c.  113,  s.  23;  R.  C,  c.  46,  ss.  12,  13. 

171.  Causes  transferred  to  superior  court,  when.   All  cases 

for  the  sale  of  real  estate  for  assets  heretofore  in  the  co\inty  courts, 
in  which  final  orders  for  collection  and  application  or  distrib\ition 
of  purchase  money  and  making  titles  were  not  made  before  the 
adoption  of  the  present  constitution,  may,  at  the  instance  of  any 
person  interested,  be  transferred,  as  other  cases,  to  the  superior  court 
of  the  county  where  such  proceeding  was  pending,  and  such  court 
shall  have  i\\\\  authority  to  make  all  necessary  orders  to  complete 
the  same. 

Code.  s.   1542;   1871-2,  c.  161. 

172.  Estates  prior  to  certain  dates.   This  chapter  shall  apply 

to  the  estates  of  such  deceased  persons  only  whereof  original  admin- 
istration has  been  granted  subsequent  to  the  first  day  of  July,  one 


172     ADMINISTEATIOIS"— XX//.  Miscel   Provisions.        Ch.  1 

thousand  eight  hundred  and  sixty-nine,  and  all  estates  whereon 
administration  was  granted  prior  to  the  said  first  day  of  July,  one 
thousand  eight  hundred  and  sixty-nine  shall  be  dealt  with,  admin- 
istered and  settled  according  to  the  law  as  it  existed  just  prior  to 
said  date,  and  it  is  hereby  declared  that  such  is  the  true  intent  and 
meaning  of  this  chapter:  Provided,  that  nothing  herein  shall  be 
construed  to  prevent  the  application  of  this  chapter  so  far  as  it  relates 
only  to  the  courts  having  jurisdiction  of  any  action  or  proceeding 
for  the  settlement  of  an  administration  or  to  the  practice  and  pro- 
cedvire  therein. 

Code,  s.   1433;    1809-70,  c.  58,  s.   1. 

173.   To  what  estates  this  chapter  applicable.   This  chapter 

shall  apply  only  to  cases  where  the  grant  of  letters  of  collection  or 
of  probate  or  of  administration  shall  have  issued  on  or  after  the  first 
day  of  July,  one  thousand  eight  himdred  and  sixty-nine,  except  in 
case  of  administrations  de  bonis  non  upon  estates  where  the  former 
letters  of  administration  or  letters  testamentary  were  granted  j^rior 
to  the  first  of  July,  one  thousand  eight  hundred  and  sixty-nine,  in 
all  which  cases  estates  shall  be  administered,  closed  up  and  settled 
according  to  the  law  as  it  existed  just  prior  to  the  first  of  July,  one 
thousand  eight  hundred  and  sixty-nine. 
Code,  s.  1476;  1871-2,  c.  213,  s.  29;  1872-3,  e.  179. 


Note.     To  compel  surviving  partner  to  settle,  see  Partnership. 
How  administrators  or  executors  charge  their  own  estate,  see  a.  974. 


CHAPTER  2. 
ADOPTION  OF  MINOR  CHILDREN. 

(Sections  174—181.) 

174.  Petition  filed  before  clerk,  what  to  contain.  Any  person 

desiring  to  adopt  any  minor  child  may  file  a  petition  in  the  superior 
court  of  the  county  wherein  such  child  resides,  setting  forth  the 
name  and  age  of  such  child  and  the  name  of  its  parents,  whether 
the  parents  or  either  of  them  be  living,  and  if  there  be  no  living 
parent,  the  name  of  the  guardian,  if  any,  and  if  there  be  no  guardian, 
the  name  of  the  person  having  charge  of  the  child  or  with  whom  such 


174  ADOPTIOX  OF  MINOR  CHILDKEX.  Ch.  2 

child  resides,  the  amount  and  nature  of  the  child's  estate,  if  any, 
and  especially  if  the  adoption  is  for  the  minority  or  for  the  life  of 
the  child. 

Code,  s.  1;   1872-3,  e.  155. 

175.  Parties  to  proceeding.  The  parent  or  guardian,  or  the  per- 
son having  charge  of  such  child,  or  with  whom  it  may  reside,  mxist 
be  a  party  of  record  in  this  proceeding. 

Code,  s.  6;   1S72-3,  c.   155,  s.  6. 

1 76.  Letters  of,  when  granted.  Upon  the  filing  of  such  petition, 

and  with  the  consent  of  the  parent  or  parents,  if  living,  or  of  the 
guardian,  if  any,  or  of  the  person  with  whom  such  child  resides,  or 
who  may  have  charge  of  such  child,  the  court  may,  if  the  petitioner 
be  a  proper  and  suitable  person,  sanction  and  allow  such  adoption 
by  an  order  granting  letters  of  adoption. 
Code,  s.   2. 

177.  Effect  of  order;  child  to  inherit,  when;  name  changed. 

Such  order,  when  made,  shall  have  the  effect  forthwith  to  establish 
the  relation  of  parent  and  child  between  the  petitioner  and  the  child 
during  the  minority  or  for  the  life  of  'such  child,  according  to  the 
prayer  of  the  petition,  with  all  the  duties,  powers  and  rights  belong- 
ing to  the  relationship  of  parent  and  child,  and  in  case  the  adoption 
be  for  the  life  of  the  child,  and  the  petitioner  die  intestate,  such 
order  shall  have  the  further  effect  to  enable  such  child  to  inherit  the 
real  estate  and  entitle  it  to  the  personal  estate  of  the  petitioner  in  the 
same  manner  and  to  the  same  extent  such  child  would  have  been 
entitled  to  if  such  child  had  been  the  actual  child  of  the  person 
adopting  it :  Provided,  such  child  shall  not  so  inherit  and  he  so  enti- 
tled to  the  personal  estate,  if  the  petitioner  specially  set  forth  in  his 
petition  such  to  be  his  desire  and  intention :  Provided  further,  for 
proper  cause  shown  in  said  petition  the  court  may  decree  that  the 
name  of  such  child  may  be  changed  to  that  of  tlic  petitioner. 
Code,  s.  3;   1885,  c.  390;   1872-3,  c.  155,  s.  3. 

178.  Bond  to  secure  orphan's  property,   if  sudi  child  be  an 

orphan  and  without  guardian,  and  shall  be  possessed  of  any  estate, 
the  court  shall  require  from  the  petitioner  such  bond  as  is  required 
by  law  to  be  given  by  guardians. 
Code,  s.  4. 

179.  Clerk  to  record  order;  revocation.   The  order  granting 

letters  of  adnptinn  sliall  he  recorded  in  the  office  of  the  clerk  of  the 
superior  court  of  the  county  in  which  it  is  made,  and  may  be  revoked 
at  any  time  by  the  court  for  good  cause  shown. 

Code,   8.  5;    1872-3,  e.   155,   s.  5. 

42 


ISO  ADOPTION  OF  MIXOE  CHILDEEX.  Ch.  2 

180.  Right  to  custody  forfeited  by  abandonment.  lu  all  cases 

where  the  surviving  parent  of  any  orphan  child  shall  have  wilfully 
abandoned  the  care,  custody,  nurture  and  maintenance  of  any 
orphan  child  to  kindred,  relatives  or  other  persons,  such  parent  shall 
be  deemed  to  have  forfeited  all  rights  and  privileges  with  respect  to 
the  care,  custody  and  services  of  such  child. 

1885,  c.   120,  s.   1. 

181.  Restoration  of  rights  and  privileges.  The  rights  and  privi- 
leges of  such  parent  may  be  restored  by  the  voluntary  surrender  of 
such  child  by  the  person  in  whose  care  and  custody  such  child  may 
be,  or  by  order  of  any  judge  of  the  siiperior  court  in  the  district  in 
which  such  child  may  be,  when  it  shall  appear  to  the  satisfaction  of 
such  judge  that  the  interest  and  welfare  of  such  child  will  not  be 
materially  prejudiced  by  such  restoration.  The  person  having  the 
care  and  custody  of  any  such  child  shall  have  at  least  ten  days' 
notice  of  the  time  and  jjlace  of  the  hearing  of  the  application  for 
such  order  of  restoration,  and  shall  be  permitted  to  resist  the  same. 

188.3,  c.  120,  ss.  2,  3. 


Note.     For  contests  over  custody  of  children,  see  Habeas  Corpus,  s.  185.3. 

For  effect  of  divorce  on  children,  see  Divorce  and  Alimony,  s.  1570. 

For  right  of  parent  to  determine  custody  of  children  by  deed  or  ■will,  see 
Guardian,  s.  1762. 

For  small  allowance  paid  to  indigent  children  bv  clerk,  in  certain  cases,  see 
s.  924. 


CHAPTEE  3. 
ALIENS. 

(Sections  182—18.3.) 

182.  IVIay  take  and  hold  lands.  It  shall  be  lawful  for  aliens  to 
take  both  by  purchase  and  descent,  or  other  ojjeration  of  law,  any 
lands,  tenements  or  hereditaments,  and  to  hold  and  convey  the  same 
as  fully  as  citizens  of  this  state  can  or  may  do,  any  law  or  usage  to 
the  contrary  notwithstanding. 

Code,  s.  7:   1870-1,  c.  255. 

183.  Prior  contracts  validated.  All  contracts  to  purchase  or  sell 
real  estate  by  or  with  aliens,  heretofore  made,  shall  be  deemed  and 
taken  as  valid  to  all  intents  and  purposes. 

Code,  s.  8;    1870-1,  c.  255,  s.  2. 


184  APPRENTICES—/.  Poiver  of  Clerk.  Ch.  i 


CHAPTER  i. 

APPRENTICES. 

Sections. 

I. 

Power  of  clerk, 

184—189 

II. 

The  apprentice, 

190—193 

III. 

The  employer. 

194—196 

IV. 

The  indenture. 

197—200 

V. 

To  learn  a  trade, 

201—206 

I.     PowEE  OF  Clerk. 

184.  To  apprentice,  or  send  to  orphanage.   Upon  comijlaint 

made  in  writing  by  three  reputable  citizens  to  the  clerk  of  the 
superior  court  of  any  county  that  there  is  any  infant  in  such  county 
subject  to  any  of  the  conditions  enumerated  in  this  chapter,  it  shall 
be  the  duty  of  the  said  clerk  of  the  superior  court  upon  ten  days' 
notice  to  the  complainants,  and  the  parents  or  persons  with  whom 
such  infant  resides,  to  examine  into  the  allegations  of  the  said  com- 
plaint, upon  oath,  aud  if  the  said  clerk  of  the  superior  court  shall  find 
upon  such  examination  that  the  conditions  set  forth  in  such  complaint 
are  true,  it  .shall  be  the  duty  of  said  clerk  in  his  discretion  to  procure 
for  said  infant  admission  into  .some  orjihan  asylum  in  the  state,  or  to 
bind  out  the  said  infant  as  an  apprentice. 
1889,  c.  169,  s.  2;  1901,  c.  628. 

185.  To   determine    incapacity,   desertion    or   drunkenness. 

Incapacity,   desertion  or   drunkenness   shall  be   decided  before   the 
clerk  of  the  superior  court  upon  application,  as  in  special  proceed- 
ings, when  necessary. 
1889,   c.   169,  s.   19. 

186.  IVIust  examine  persons  as  to  circumstances;  tradesmen 

of  useful  art  preferred.  On  application  of  any  person  to  have  an 
apprentice  bound  to  him,  it  shall  be  the  duty  of  the  clerk  to  inform 
himself  of  the  circumstances  of  the  case,  and  for  this  purpose  he 
may  cite  before  him  the  relatives  of  the  orphan  or  infant  for  exami- 
nation on  oath,  and  he  may  examine  also  such  other  persons  as  he 
may  deem  proper.  In  the  selection  of  an  employer,  he  shall  prefer, 
so  far  as  may  be  consistent  in  other  resj^ect  with  the  comfort  and 
interest  of  the  apprentice,  some  tradesman  of  a  useful  art  or  mys- 
tery. No  white  cliild  shall  be  apprenticed  to  any  other  than  a  white 
person. 

1889,  c.  169,  SB.  1,  8. 


187  APPEENTICES— 7.  Power  of  Clerk.  Ch.  4 

187.  May  modify;  discharge  apprentice  and  re-apprentice. 

The  clerk  shall  have  power,  when  circumstances  require  it,  upon 
application  of  either  the  employer  or  the  apprentice,  to  modify  the 
indentures  of  an  apprentice  or  to  discharge  him  from  his  apprentice- 
ship ;  and  in  case  any  money  or  other  thing  of  value  has  been  paid 
by  either  party  in  relation  to  such  apprenticeship,  the  clerk  shall 
make  such  order  concerning  the  same  as  shall  be  just  and  reasonable ; 
and  he  shall  have  power  where  an  apprentice  is  discharged  to  re- 
apprentice  him,  when  such  a  course  shall  seem  proper  and  practi- 
cable. 

1889,  e.  169,  s.  13. 

188.  May  direct  disposition  of  wages.  When  money,  wages  or 
other  thing  of  value  is  agreed  to  be  paid  to  the  apprentice,  the  clerk 
is  empowered  to  direct  such  disposition  of  the  same  as  shall  seem 
to  him  just  and  proper;  and  in  the  case  of  money,  he  may  either 
direct  that  so  much  be  placed  at  the  disposal  of  the  apprentice 
as  shall  be  proper,  or  so  much  paid  to  the  parents  of  the  apprentice 
for  their  use,  or  so  much  paid  into  the  clerk's  office  to  the  credit  of 
the  said  apprentice. 

1889,  e.   169,   s.   5. 

189.  Guardian  to  be  appointed  wlien  $100  in  clerk's  hands. 

Whenever  as  much  as  one  hundred  dollars  shall  come  into  the  hands 
of  any  clerk  of  the  superior  court  belonging  to  an  apprentice  by 
reason  of  the  preceding  section,  it  shall  be  his  duty  to  appoint  and 
qualify  a  guardian  for  the  estate  of  said  apprentice,  and  turn  the 
said  funds  over  to  said  guardian  for  investment;  and  the  said 
guardian  shall  be  appointed  and  qualiiied  and  be  governed  by  the 
same  rules  and  regtilations  as  guardians  of  said  estate. 
1889,  c.  169,  s.  6. 


Note.     For  payment  by  clerk  to  indigent  child  of  estate  less  than  twenty  dol- 
lars, see  s.  924. 

II.     The  ApPEEisrTicE. 

190.   Who  may  be  apprenticed.     Children  who  may  be  appren- 
ticed shall  include: 

1.  All  orphans  whose  estates  are  of  so  small  value  that  no  person 
will  educate  and  maintain  them  for  the  benefit  thereof. 

2.  All  infants  whose  fathers  have  deserted  their  families  and  been 
absent  six  months,  leaving  them  without  sufficient  support. 

3.  Any  poor  child  who   is  or  may  be  chargeable  to  the  county 
or  shall  beg  alms. 


190  APPEEXTICES— //.  The  Apprentice.  Cli.  4 

4.  Any  child  who  has  uo  father,  and  the  mother  is  of  bad  char- 
acter, or  suffei's  her  children  to  grow  up  in  habits  of  idleness,  with- 
out any  visible  means  of  obtaining  an  honest  livelihood. 

5.  All  infants  whose  parents  do  not  habitually  employ  their  time 
in  some  honest,  industrious  occupation. 

6.  All  indigent  infants  under  sixteen  years  of  age  who,  on  account 
of  the  neglect,  crime,  drunkenness,  lewdness  or  other  vice  of  the 
parents,  or  person  with  whom  such  infants  reside,  are  in  circum- 
stances exposing  such  infants  to  lead  an  idle  and  dissolute  life. 

1889,  c.  169,  s.  2;  1901,  c.  628. 

191.  May  make  complaint  of  ill  usage,  violation  of  indenture; 

duty  of  clerk.  Upon  the  complaint  of  any  apprentice  that  his 
employer  is  guilty  of  cruelty  or  ill  usage  toward  said  apprentice, 
or  refuses  him  necessary  i^rovisions  or  clothing,  or  violates  any  other 
stipulation  of  the  indenture  or  of  the  law  toward  such  an  appren- 
tice, the  clerk  may,  by  order,  compel  the  appearance  of  the  said 
employer  before  him,  when  he  shall  examine  and  determine  the 
complaint,  and  if  the  same  is  well  founded,  he  shall  cancel  the 
indenture  and  discharge  such  apprentice  from  his  obligation  of 
service,  and  may  proceed  to  apprentice  the  discharged  infant  to 
some  other  employer. 

1889,  0.  109,  s.  10;   1762,  c.  09,  ss.  19,  20. 

192.  Compelled  to  serve.  If  an  apprentice  refuses  to  serve  as 
required  by  the  indenture  or  by  law,  the  clerk  may,  on  application 
of  the  employer,  compel  him  by  citation  or  otherwise  to  appear  for 
inquiry  into  the  facts  and  if  the  complaint  is  well  founded  and  the 
apprentice  persists  in  such  refusal,  the  clerk  may  commit  him  by 
warrant  to  the  house  of  correction  or  to  the  common  jail  of  the 
county  until  he  consents. 

1889,  e.   109,   s.   9. 

193.  Person  enticing  away  apprentice,  penalty.    If  any  person 

shall  entice  away  an  apprentice  from  his  employer,  he  shall  jiay 
therefor  three  dollars  for  every  day  the  apprentice  shall  remain 
out  of  the  service  of  the  said  employer ;  and  any  person  who  shall 
knowingly  conceal,  harbor  or  employ  such  an  apprentice  shall  in 
like  manner  pay  the  employer  therefor  three  dollars  per  day  for 
every  day  such  apprentice  shall  be  concealed,  harbored  or  employed. 
1880,  c.   109,  s.   15. 

Til.     The  Emi'i.oveh. 

194.  Shall  provide,  what.  Whcncvir  an  indigent  child  shall  be 
apjirenticed,  his  ciiipldver  shall,  in  the  indenture,  agree  to  provide 


194  APPEENTICES— 777.  The  EmpJoijer.  Ch.  4 

(1)  diet,  clothes,  lodging  and   accommodations  fit  and  necessary; 

(2)  that  the  apj^rentice  be  taught  to  read  and  write  and  the  rules  of 
arithmetic  to  the  double  rule  of  three;  (3)  six  dollars  in  cash,  a  new- 
suit  of  clothes  and  a  new  Bible  at  the  end  of  the  apprenticeship; 
(4)  such  other  education  as  may  be  agTeed  upon  and  inserted  in  the 
indenture  by  the  clerk;  (5)  the  clerk  shall  also  insert  in  the  indenture 
the  amount  of  money  or  other  thing  of  value  to  be  paid  to  the  appren- 
tice by  his  employer  annmilly  during  the  continuance  of  the  appren- 
ticeship, so  that  the  indenture  will  show  the  compensation  to  be  paid 
the  apprentice  for  each  year's  service. 

1889,  c.   109,  s.  4. 

195.  Annual  report  made  by,  to  clerk.  Employers  of  apprentices 
shall  be  required  iu  the  indentures  made  before  the  clerk  to  make 
a  report  anniially  to  him  as  to  whether  the  stipulations  in  the  inden- 
ture have  been  jjerformed  or  not,  as  required  in  the  same,  in  which 
shall  be  set  forth  the  amoiuit  to  be  paid,  and  the  amount  actually 
paid  said  apprentice,  and  also  the  progress  and  general  condition 
of  the  apprentice,  inchiding  his  moral,  mental  and  physical  condi- 
tion ;  which  report  shall  be  required  under  the  same  pains,  penalties 
and  regulations  as  is  required  of  guardians.  The  said  employer 
shall  also,  at  the  end  of  the  apprenticeship,  make  a  final  report  to 
the  clerk  as  to  the  apprenticeship  as  guardians  are  required  to  do. 

1889,  c.  169,  s.  7. 

196.  Shall  not  remove  apprentice  from  state;  indenture  can- 
celled, when.  It  shall  not  be  lawful  for  an  employer  to  remove  an 
apprentice  out  of  this  state,  and  whenever  any  employer  of  an 
apprentice  shall  wish  to  remove  out  of  this  state,  or  to  qiiit  his 
trade  or  business,  he  shall  ajipear  with  his  apprentice  before  the 
clerk  of  the  projier  coimty,  and  if  the  clerk  be  satisfied  the  employer 
has  done  justice  to  the  said  apprentice  for  the  time  he  has  had 
charge  of  him,  he  shall  have  power  to  discharge  such  apprentice 
from  the  service  of  such  employer  and  again  bind  him,  if  necessary, 
to  some  other  person. 

1889,  c.  169,  s.  14. 

IV.     The  Indenture. 

197.  In  name  of  clerk  and  employer.   Indigent  children  when 

apprenticed  shall  be  indentured  iu  the  name  of  the  superior  coiirt 
clerk  of  the  county  where  they  reside,  of  the  first  part,  and  the 
employer  to  whom  apprenticed,  of  the  other  part. 
1889,  c.   169,  s.   1. 

198.  For  what  time  apprenticed.  Indigent  male  children  may 
be  apprenticed  till  the  age  of  twenty-one,  and  females  till  the  age 


198  APPEEXTIC'ES— /T'.  Tlie  Indeniure.  Ch.  4 

of  eighteen ;  but  said  cliildren  shall  be  apprenticed  for  a  less  number 
of  years,  whenever  in  the  opinion  of  the  clerk  the  best  interests  of 
the  apjjrentice  will  be  subserved  thereby.     The  age  of  children  when 
apprenticed  shall  always  be  inserted  in  the  indenture. 
1889,  c.  169,  s.  3. 

199.  Relator  in  action  on  indenture;  limitation.  The  apprentice 

may  bring  an  action  on  the  indenture  in  the  name  of  the  clerk  and 
his  successors  in  office  and  recover  any  damages  sustained  by  reason 
of  the  breach  of  the  covenants  contained  in  said  indenture;  bxit 
no  action  on  an  indenture  shall  be  commenced  after  two  years  from 
the  expiration  of  the  term  of  service. 
1889,  c.  169,  s.  11. 

200.  Indentures  to  be  registered  by  register  of  deeds.   Every 

indenture  binding  an  apprentice  to  be  eifectual  shall  be  proved  and 
recorded  in  the  register  of  deeds'  oifiee  of  the  count.y  where  the  par- 
ties thereto  reside,  as  deeds  and  conveyances,  and  shall  be  subject  to 
the  same  rules  of  evidence  as  deeds  and  conveyances. 
1889,  c.  169,  s.  20. 

V.     To  Leakn  a  Tkade. 

201.  Who  may  be  apprenticed.  Minor  children  above  the  age 
of  fourteen  and  under  twenty-one  years  being  males,  and  eighteen 
being  females,  whether  indigent  or  not,  may  be  apprenticed  to  learn 
the  art  or  mystery  of  any  trade  or  craft  by  their  father,  or  in  case 
of  his  death,  incompetency,  or  where  he  shall  have  wilfully  aban- 
doned his  family  for  six  months  without  making  sxiitable  provisions 
for  their  support,  or  has  become  an  habitual  drunkard,  by  their 
mother  or  by  their  legal  guardian ;  and  if  illegitimate,  they  may 
be  bound  by  their  mother,  and  if  they  have  no  parent  competent  to 
act  and  no  guardian,  they  may  bind  themselves  with  the  approbation 
of  the  superior  court  clerk  of  the  county  where  they  reside;  but  the 
power  of  a  mother  to  bind  her  children,  whether  legitimate  or  illegiti- 
mate, shall  cease  upon  her  subsequent  marriage  and  shall  not  be 
exercised  by  herself  or  her  husband  at  any  time  during  such  mar- 
riage. But  no  white  child  shall  be  boimd  to  any  otlior  tlian  a  white 
person,  and  no  negro  cliild  shall  be  bound  to  any  white  person  if  a 
competent  and  suitable  negTo  can  be  found  in  the  county  who  desires 
such  child  bound  to  him. 

1889,  c.   169,   s.   17. 

202.  Apprentices  over  fourteen  to  sign  indenture.    Wh.n  an 

apprentice  is  bound  who  is  over  fourteen  years  of  age,  as  provided 
in  the  foregoing  section,  his  or  her  consent  shall  be  expressed  in  the 

48 


202  APPKENTICES— y.   To  Learn   a  Trade.  Ch.  4 

indenture  and  testified  to  by  signing  the  same,  and  the  age  of  said 
apprentice  shall  also  be  inserted  in  said  indenture. 
1889,  c.  1G9,  s.  IS. 

203.  Orphan  asylum  may  execute  indentures.  Any  orphan  asy- 
lum, or  charitable  institution  organized  and  incorporated  for  the 
purpose  of  taking  care  of  indigent  children  under  any  general  or 
special  law  of  this  state,  is  hereby  authorized  and  empowered  to 
execute  indentures  apprenticing  children  in  their  charge  for  the 
purpose  of  learning  trades,  the  said  children  being  fourteen  years 
of  age,  and  they  shall  have  the  same  rights  and  assume  the  same 
liabilities  thereunder  as  in  case  of  natural  persons. 

1889,  e.   169,  s.  21. 

204.  What  indenture  to  contain.  All  indentures  apprenticing 
minors  to  learn  trades  shall  contain  the  following  covenants  and 
provisions : 

1.  That  said  minor  shall  be  bound  to  serve  his  emploj'er  for  a 
term  of  not  less  than  three  nor  more  than  five  years. 

2.  That  said  minor  so  indentured  shall  not  leave  his  said  employer 
during  the  term  for  which  he  shall  be  indentured,  and  if  any  appren- 
tice so  indentured  as  aforesaid  shall  leave  his  employer  except  as 
hereinafter  provided,  the  said  emijloyer  may  compel  the  return  of 
said  apprentice  under  the  penalties  of  this  chapter. 

3.  That  said  employer  shall  covenant  and  agree  in  said  indenture 
as  to  the  compensation  which  is  to  be  given  the  apprentice  annually, 
specifying  board,  medical  attention,  lodging  and  clothes,  when  they 
are  to  be  given,  and  also  the  wages  to  be  paid  in  money  and  at  what 
periods  to  be  paid,  and  to  whom. 

4.  That  the  said  employer  shall  teach,  or  cause  to  be  carefully 
and  skillfully  taught,  to  said  apprentice  every  branch  of  the  busi- 
ness to  which  he  is  indentured. 

5.  That  said  employer  shall,  at  the  expiration  of  said  apprentice- 
ship, give  to  said  apprentice  a  certificate  in  writing  stating  that  said 
apprentice  has  served  a  full  term  of  apprenticeship  of  not  less  than 
three  nor  more  than  five  years  at  such  trade  or  craft  as  may  be 
specified  in  said  indenture. 

6.  That  if  either  the  employer  or  the  apprentice,  during  the  con- 
tinuance of  the  apprenticeship,  shall  be  unavoidably  prevented  from 
performing  any  of  the  conditions  of  the  indentui'e  and  a  settlement 
with  respect  to  the  same  can  not  be  made  by  the  i_>arties  to  the  inden- 
ture, the  matter  shall  be  referred  to  arbitrators  for  settlement,  one 
to  be  selected  by  the  employer  and  one  on  the  part  of  the  apprentice, 
and  if  they  can  not  decide  the  controversy,  the  two  arbitrators  chosen 


20-i  APPREXTICES— T'.   To  Learn   a  Trade.  Ch.  4 

to  select  a  third,  and  the  decision  of  any  two  of  said  arbitrators  to 
be  final  as  to  the  matters  in  controversy. 
1889,  c.  169,  s.  22. 

205.  Apprentice  compelled  to  serve,  how.   Any  apprentice,  so 

indentured,  who  shall  leave  his  employer  withont  his  consent,  or  with- 
out sufficient  cause,  and  shall  refuse  to  return,  may  be  arrested  upon 
complaint  of  said  employer  and  taken  before  any  justice  of  the  peace 
of  the  county  where  the  employer  resides,  and  said  justice  of  the 
peace  may  order  said  indentures  cancelled,  and  on  conviction  may 
commit  said  apprentice  to  the  honse  of  correction  or  county  jail 
imtil  said  apprentice  agrees  to  abide  by  the  indenture,  which  shall 
not  exceed  thirty  days;  and  in  case  said  apprentice  so  indentured 
shall  still  wilfully  neglect  or  refuse  to  perform  his  j^ortion  of  the 
contract  as  specified  in  said  indenture,  then  said  indenture  may  be 
cancelled  in  the  manner  aforesaid,  and  said  apprentice  so  violating 
said  indenture  .shall  forfeit  all  back  pay  and  all  claims  against  said 
employer:  Provided,  either  party  shall  have  right  of  appeal. 
1889,  c.  169,  s.  23. 

206.  Employer  falling  to  teach  apprentice  liable  for  damages 

and  a  penalty.  Sho\ild  any  employer  neglect  ur  refuse  to  teach  or 
cause  to  be  taught  to  said  apj^rentice  the  art  or  mystery  of  the  trade 
or  craft  to  which  said  apprentice  has  been  indentured,  or  fail  to 
perform  any  of  the  stipulations  of  the  indenture,  said  apprentice, 
by  his  parent,  guardian  or  next  friend,  may  bring  an  action  against 
said  employer  to  recover  damages  sustained  by  reason  of  said  neg- 
lect or  refusal ;  and  if  proved  to  the  satisfaction  of  the  court,  said 
court  shall  direct  said  indenture  to  be  cancelled  and  may  imiiose  a 
penalty  on  said  employer  not  exceeding  three  hundred  dollars  and 
not  less  than  fifty  dollars,  and  said  penalty  shall  be  Cdllected  aud  ]xud 
over  to  said  apprentice  or  his  parent  or  guardian  for  his  sole  use 
and  benefit. 

1889,  c.   169,  8.  24. 


Note.     For   wilful   violation   of  duty   to  an   apprentice   by  his   employer,   see 
Crimes. 


207  ATTOEXEYS  AT  LAAV— /.  How  Licensed.  Cli.  5 

CHAPTEK  5. 
ATTORNEYS  AT  LAW. 

Sections. 
I.     How  licensed,  207—210 

II.     Debarred.  211—212 

III.  Relation  to  client,  213—215 

IV.  Arguments,  246 

I.     How  Licensed. 

207.  Examination.  Xo  person  shall  practice  law  without  tirst 
obtaining  license  so  to  do  from  the  supreme  court.  Applicants  for 
license  shall  be  examined  only  on  the  first  Monday  of  each  term  of 
the  supreme  court.  All  examinations  shall  be  in  writing,  and  based 
upon  such  course  of  study,  and  conducted  under  such  rules,  as  the 
court  may  prescribe.  All  applicants  who  shall  satisfy  the  court 
of  their  competent  knowledge  of  the  law  shall  receive  license  to 
practice  in  all  the  courts  of  this  state. 

Code,  s,  17;  R.  C,  c.  9,  s.  1;   1818,  c.  963,  s.  3. 

208.  Conditions  precedent  to  examination.  Before  being  al- 
lowed to  stand  an  examination  each  applicant  must  comply  with  the 
following  conditions : 

1.  He  must  be  at  the  time  twenty-one  years  of  age,  or  will  arrive 
at  that  age  before  the  time  for  the  next  examination. 

2.  He  must  file  with  the  clerk  of  the  court  a  certificate  of  good 
moral  character  sigiied  by  two  attorneys  who  practice  in  that  court. 
An  applicant  from  another  state  may  have  such  certificate  signed  by 
any  state  officer  of  the  state  from  which  he  comes. 

3.  He  must  deposit  with  the  clerk  twenty-one  dollars  and  fifty 
cents.  Of  this  sum  one  dollar  and  fifty  cents  shall  be  retained  by 
the  clerk.  If  the  applicant  obtains  license  the  remaining  twenty 
dollars  shall  be  paid  by  the  clerk  to  the  librarian  fur  use  of  the 
supreme  court  library.  If  the  applicant  fails  on  examination  the 
twenty  dollars  shall  be  repaid  him. 

Code,  s,  18;  R.  C,  c.  9,  s.  2 ;   1777,  c.  115,  s.  S. 

209.  Oath  taken  in  open  court.  Attorneys  l^efore  they  shall  be 
admitted  to  practice  law  shall,  in  open  court  before  a  justice  of  the 
supreme  or  judge  of  the  superior  court,  take  the  oath  prescribed  for 
attorneys,  and  also  the  oaths  of  allegiance  to  the  state,  and  to  support 
the  constitution  of  the  United  States,  prescribed  for  all  public  offi- 
cers, and  the  same  shall  be  entered  on  the  records  of  the  court ;  and, 


209  ATTOENEYS  AT  LAW— 7.  Hoiv  Licensed.  Ch.  5 

upon  such  qualification  had,  aud  oath  taken,  may  act  as  attorneys 
during  their  good  behavior. 

Code,  s.   19;   R.  C,  e.  9,  s.  3 ;    1777.  c.   115,  s.  S. 

210.   Persons  disqualified.   Xo  clerk  of  the  superior  or  supreme 

court,  nor  deputy  or  assistant  clerk  of  said  courts,  nor  sheriff,  nor 

any  justice  of  the  peace,  nor  county  commissioner  shall  practice  law. 

Code,  ss.  27,  28,  110:  1870-1,  c.  90;  1883,  c.  40G ;  1871-2,  c.  120;  1880,  c.  43; 

C.  C.  P.,  s.  424. 


Note.     Persons  above  named  practicing  law  guilty  of  misdemeanor,  see  Crimes. 
II.     Debaered. 

211.  For  crirne.  jSTo  per.son  who  shall  have  been  duly  licensed 
to  practice  law  as  an  attorney  shall  be  debarred  or  deprived  of  his 
license  and  right  so  to  practice  law,  either  permanently  or  tempo- 
rarily, unless  he  shall  have  been  convicted,  or  in  open  court  confessed 
himself  guilty,  of  some  criminal  offense  showing  him  to  be  unfit 
to  be  trusted  in  the  discharge  of  the  diities  of  his  profession,  and 
imless  he  shall  be  debarred  according  to  the  provisions  of  this 
chapter. 

Code,  s.  26;    1870-1,  c,  216,  s,  4. 

212.  Failure  to  account  to  client.  Whenever  a  final  judgment 
has  been  recovered  against  an  attorney  at  law  for  property  received 
or  money  collected  for  his  client,  the  clerk  of  the  court  shall  retain 
such  cause  on  the  trial  docket  until  the  next  term  of  such  court  begin- 
ning not  less  than  ninety  days  after  the  rendition  of  such  final 
judgment.  If  such  judgment  be  not  then  satisfied,  the  judge  pre- 
siding shall  make  an  order,  Avhich  shall  be  entered  on  the  records  of 
the  court,  for  such  attorney  to  show  cause,  at  a  time  and  place  to  be 
named  in  such  order,  and  upon  the  return  thereof  may  make  an 
order  debarring  such  attorney  at  law  from  practicing  law  in  any 
of  the  courts,  and  he  shall  thereby  be  debarred  from  so  practicing. 
When  any  such  judgment  shall  be  rendered  in  the  court  of  a  jus- 
tice of  the  peace,  and  it  is  thereupon  sought  to  debar  an  attorney 
at  law  imder  this  section,  the  cause  shall  be  docketed  on  the  civil 
issue  docket  of  the  superior  court,  and  written  notice  served  on  such 
attorney  ninety  days  before  action  by  the  court. 

Code,  ss.  24,  23;   1881,  e.  129. 

III.     Relation  to  Client. 

213.  Authority  filed  or  produced  if  requested.   Every  attorney 

who  shall  claim  to  enter  an  apjiearancc  for  any  per.son  shall,  upon 


213      ATTORNEYS  AT  LAW—///.  Eelation  to  Client.      Ch.  5 

being  required  so  to  do,  produce  and  file  in  the  clerk's  oifice  of  the 
court  in  which  he  shall  claim  to  enter  an  appearance,  a  power  or 
authority  to  that  effect  signed  by  the  persons  or  some  one  of  them 
for  whom  he  is  about  to  enter  an  appearance,  or  by  some  person  duly 
authorized  in  that  behalf,  otherwise  he  shall  not  be  allowed  so  to  do : 
Provided,  that  when  any  attorney  shall  claim  to  enter  an  appearance 
by  virtue  of  a  letter  to  him  directed  (whether  such  letter  purport  a 
general  or  particular  employment),  and  it  shall  be  necessary  for 
him  to  retain  the  letter  in  his  own  possession,  he  shall,  on  the  pro- 
duction of  said  letter  setting  forth  such  employment,  be  allowed  to 
enter  his  appearance,  and  the  clerk  shall  make  a  note  to  that  effect 
upon  the  docket. 

Code,  s.  29;   E.  C,  c.  31,  s.  57    (16). 

214.  Failure  to  file  complaint  makes  attorney  liable  for  costs. 

When  a  jDlaintiff'  shall  be  compelled  to  pay  the  costs  of  his  suit  in  con- 
sequence of  a  failure  on  the  part  of  his  attorney  to  file  his  complaint 
in  proper  time,  he  may  sue  such  attorney  for  all  the  costs  by 
him  so  paid,  and  the  receipt  of  the  clerk  may  be  given  in  evidence  in 
support  of  such  claim. 

Code,  s.  22;   R.  C,  c.  9,  s.  5;   17S6,  c.  253,  s.  6. 

215.  Fraud  renders  liable  for  double  damages.   If  any  attorney 

shall  commit  any  fraudulent  practice,  he  shall  be  liable  in  an  action 
to  the  party  injured,  and  on  the  verdict  passing  against  him,  judg- 
ment shall  be  given  for  the  plaintiff  to  recover  double  damages. 
Code,  s.  23;  R.  C,  c.  9,  s.  6;   1743,  e.  37. 

IV.     Aeguments. 

216.  Control  of,  by  court.  In  all  trials  in  the  superior  courts 
there  shall  be  allowed  two  addresses  to  the  jury  for  the  state  or 
plaintiff  and  two  for  the  defendant,  except  in  capital  felonies  when 
there  shall  be  no  limit  as  to  niimber.  The  judges  of  the  superior 
court  are  also  authorized  to  limit  the  time  of  argument  on  the  trial 
of  all  actions,  civil  and  criminal,  except  in  capital  felonies,  but  in 
no  instance  shall  the  time  be  limited  to  less  than  one  hour  on  each 
side  in  misdemeanors,  or  to  less  than  three  hours  on  each  side  in 
other  causes.  Where  any  greater  number  of  addresses  or  any  exten- 
sion of  time  shall  be  desired,  motion  shall  be  made,  and  it  shall  be 
in  the  discretion  of  the  judge  to  allow  the  same  or  not,  as  the  inter- 
ests of  justice  may  require.  In  jury  trials  the  whole  case  as  well 
of  law  as  of  fact  may  be  argued  to  the  jury. 

1903,  c.  433. 


217  AFCTIOXEEKS.  Ch.  C 


CHAPTEE  6. 
AUCTIONEERS. 

(Sections  217 — 221.) 

217.  How  appointed.  Am-  citizen  of  the  state,  desiring  to  exer- 
cise the  business  of  an  auctioneer,  shall  apply  to  the  board  of  county 
commissioners  of  the  county  in  which  he  proposes  to  carry  on  such 
business,  and,  upon  his  giving  bond  payable  to  the  state  of  Korth 
Carolina,  to  be  approved  by  said  commissioners  or  other  authority, 
conditioned  that  he  will  j^erform  faithfully  all  the  duties  required 
of  auctioneers,  the  sheriff  shall  issue  to  him  a  license  to  act  as  an 
auctioneer  in  said  county  for  twelve  months  from  the  date  of  the 
license.  The  bond  shall  in  no  case  be  less  than  five  hundred  dollars, 
and  if  the  applicant  reside  in  an  incorporated  town  or  city  having 
not  less  than  thirty-five  hundred  nor  more  than  five  thousand  inhabi- 
tants, said  bond  shall  be  one  thousand  dollars,  and  one  thousand 
dollars  additional  for  every  additional  five  thousand  inhabitants  or 
fraction  thereof  amounting  to  thirty-five  hundred  and  above. 

Code,  s.  2281;  1889,  c.  40;  1891,  c.  576;  R.  C,  c.  10,  s.  1. 

218.  Duties;  semi-annual  accounts.  It  shall  be  the  duty  of  such 

auctioneers,  on  the  first  days  respectively  of  October  and  April,  to 
render  to  the  clerks  of  the  superior  court  i>f  their  respective  counties 
a  true  and  jjarticular  account  in  writing  of  all  the  moneys  made 
liable  to  duty  by  law,  for  which  any  goods,  wares,  or  merchandise 
may  have  been  sold  at  aiiction,  and  also  at  private  sale,  where  the 
price  of  the  goods,  wares  and  merchandise  sold  at  private  sale  was 
fixed  or  agreed  upon  or  governed  by  any  previous  sale  at  auction, 
of  any  goods,  wares  and  merchandise  of  the  same  kind;  which  account 
shall  contain  a  statement  of  the  gToss  amount  of  sales  by  them  made 
for  each  particular  person  or  company  at  one  time,  the  date  of  each 
sale,  the  names  of  the  owners  of  the  goods,  wares  and  merchandise 
sold,  and  the  amount  of  the  tax  due  thereon,  which  tax  they  shall 
pay  as  directed  by  law.  AVliicli  statement  shall  be  subscribed  by 
them  and  sworn  to  before  the  clerk  of  the  said  court,  who  is  hereby 
authorized  to  administer  the  oath.  And  it  shall  be  their  further 
duty  to  account  with  and  pay  to  the  person  entitled  thereto  the 
moneys  received  on  the  sales  by  them  made. 
Code,  s.  2282;  R.  C,  e.  10,  .s.  2. 


219  AUCTIONEERS.  Ch.  6 

219.  Penalty,  acting  without  appointment.    Xo  person  shall 

exercise  the  trade  or  business  of  an  auctioneer,  by  selling  any  goods, 
■wares  or  merchandise  by  auction  or  by  any  other  mode  of  sale 
whereby  the  best  or  highest  bidder  is  deemed  to  be  the  purchaser, 
unless  such  person  shall  be  ajipointed  an  auctioneer  pursuant  to 
this  chapter,  on  pain  of  forfeiting  to  the  state  for  every  such  sale 
the  sum  of  two  hundred  dollars,  which  shall  be  prosecuted  to  recovery 
by  the  solicitor  of  the  district. 

Code,  s.  2283;   K.  C,  c.  10,  s.  5. 

220.  To  sales  of  what  articles  applicable.    Xothing  in  this 

chapter  shall  extend  to  any  sale  by  auction  of  goods,  wares  and 
merchandise  made  pursuant  to  and  in  execution  of  any  order,  decree 
or  judgment  of  the  courts  of  the  United  States  or  of  this  state;  or 
made  in  consequence  of  any  assignment  of  property  and  estate  for 
the  benefit  of  creditors ;  or  made  by  executors,  administrators,  col- 
lectors or  guardians ;  or  made  pursuant  to  any  law  touching  the 
collection  of  any  tax  or  duty,  or  sale  of  any  wrecked  goods;  or  to 
any  article  the  product  of  the  agriculture  of  this  state,  in  its  natural 
or  unmanufactured  state ;  or  to  any  species  of  stock  or  domestic 
animals ;  or  to  any  articles  of  household  f urnitiTre,  or  farming  uten- 
sils which  have  been  in  use ;  but  shall  extend  only  to  such  articles 
of  goods,  wares  and  merchandise  as  are  the  ordinary  subject  of 
traffic  and  sale  by  merchants  and  traders. 
Code,  s.  22S4;  R.  C,  c.  10,  s.  6. 

221.  Commissions;  pay  one  per  cent,  to  town.    Auctioneers 

shall  be  entitled  to  such  compensation  as  may  be  agreed  upon,  not 
exceeding  two  and  a  half  per  cent,  on  the  amount  of  sales ;  and 
auctioneers  of  incorporated  toA^nis  shall  retain  and  pay  one  per  cent, 
of  the  gross  amount  of  sales  to  the  commissioners  or  other  authority 
of  their  respective  towns. 
Code,  s.  2285;  R.  C,  c.  10,  s.  7. 


222  BAIS^KS— /.  Creation.  Ch.  7 


CHAPTER  7. 
BANKS. 

Sections. 
I.     Creation.  222—227 

II.     Powers  and  duties,  228 — 234 

III.  Stockholders,  23.5—239 

IV.  Corporation  comauission,  240 — 245 
V.     Bank  examiners,  246—251 

I.     Ckeation. 

222.  How  incorporated.  Any  number  of  persons,  not  less  than 
three,  who  may  be. desirous  of  forming  a  company,  and  engaging  in 
the  business  of  establishing,  maintaining  and  operating  banks  of 
discount  and  deposit  to  be  known  as  commercial  banks,  or  of  engag- 
ing in  the  business  of  establishing,  maintaining  and  operating  offices 
of  loan  and  deposit  to  be  known  as  savings  banks,  or  of  establishing, 
maintaining  and  ojDerating  banks  having  departments  for  both  classes 
of  business,  shall  be  incorporated  in  the  manner  following,  and  in 
no  other  way;  that  is  to  say,  such  persons  shall,  by  a  certificate  of 
incorporation,  under  their  hands  and  seals,  set  forth : 

1.  The  name  of  the  corporation;  no  name  shall  be  assumed  already 
in  use  by  another  existing  corporation  organized  under  the  laws  of 
this  state  or  of  the  Congress,  or  so  nearly  similar  thereto  as  to  lead 
to  uncertainty  or  confusion. 

2.  The  location  of  its  principal  office  in  the  state. 

3.  The  nature  of  its  business,  whether  that  of  commercial  bank, 
or  savings  bank,  or  both. 

4.  The  amount  of  the  total  authorized  capital  stock,  the  number 
of  shares  into  which  it  is  divided,  and  the  par  value  of  each  share, 
which  shall  be  either  fifty  dollars  or  one  lumdred  dollars ;  the  amoimt 
of  capital  stock  with  which  it  wilh  commence  business,  which  shall 
not  be  less  than  five  thousand  dollars  in  cities  and  towns  of  fifteen 
iiundred  population  or  less ;  nor  le.ss  than  ten  thousand  dollars  in 
cities  and  towns  whose  population  exceeds  fifteen  hundred  but  does 
not  exceed  five  thousand  ;  nor  less  than  twenty-five  thousand  dol- 
lars in  all  other  places;  the  population  to  be  ascertained  by  the 
last  preceding  national  census;  and  if  there  be  more  than  one  classs 
of  stock,  a  description  of  the  diiTerent  classes,  with  the  terms  on 
which  the  respective  classes  of  stock  are  created. 

5.  The  names  and  postoffice  addresses  of  the  subscribers  for  stock 
and  the  number  of  shares  subscribed  by  each;  the  aggregate  of  such 


222  BANKS— 7.   Creation.  Cb.   7 

subscriptions  shall  be  the  amount  of  the  capital  stock  with  which  the 
company  will  ci;immence  business. 

6.  The  period,  if  any,  limited  for  the  duration  of  the  company. 

1903,  c.  275,  ss.  1,  2;  1901,  c.  7G9. 

223.  Certificates  of  incorporation;  how  signed,  proved  and 

filed.  The  certificate  of  incorporation  shall  be  signed  by  the  origi- 
nal incorporators,  or  a  majority  of  them,  and  shall  be  proved,  or  ac- 
knowledged, before  an  officer  duly  authorized  under  the  laws  of 
this  state  to  take  the  proof  or  acknowledgment  of  deeds.  Such  certifi- 
cate of  incorporation,  when  so  proved,  shall  be  filed  in  the  office 
of  the  secretary  of  state,  Avho  shall,  if  the  same  shall  be  in  accord- 
ance with  law,  thereupon  cause  the  same  to  be  recorded  in  his 
office  in  a  book  to  be  kept  for  that  purpose,  and  known  as  the  Cor- 
poration Book,  and  he  shall,  upon  the  payment  of  the  organiza- 
tion tax  and  fees,  certify  under  his  official  seal  two  copies  of  the 
said  certificate  of  incorporation  and  probates,  one  of  which  shall 
be  forthwith  recorded  in  the  office  of  the  clerk  of  the  superior  court 
of  the  co\inty  where  the  principal  office  of  said  corporation  in  this 
state  shall,  or  is  to  be,  established,  in  a  book  to  be  known  as  the 
Record  of  Incorporations,  and  the  other  certified  copy  shall  be  filed 
in  the  office  of  the  corporation  commission,  and  thereupon  the  said 
persons  shall  become  a  body  politic  and  corporate  under  the  name 
stated  in  such  certificate.  The  said  certificate  of  incorporation,  or 
a  copy  thereof  d^ily  certified  by  the  secretary  of  state  or  by  the 
clerk  of  the  superior  court  of  the  county  in  which  the  same  is  re- 
corded, or  by  the  clerk  of  the  corporation  commission,  imder  their 
respective  seals,  shall  be  evidence  in  all  courts  and  places,  and  shall, 
in  all  judicial  proceedings,  be  deemed  prima  facie  evidence  of  the 
complete  organization  and  incorporation  of  the  company  purporting 
thereby  to  have  been  established. 

1903,' c.  275.  s.  3;   1901,  c.  2,  s.  9;   1903,  c.  343. 

224.  Payment  of  capital  stock.  At  least  fifty  per  cent,  of  the 
capital  stock  of  every  bank  shall  be  paid  in  in  cash  before  it  shall  be 
authorized  to  commence  business  and  the  remainder  of  the  capital 
stock  of  such  bank  shall  be  paid  in  monthly  instalments  of  at  least 
ten  per  cent,  in  cash  of  the  whole  of  the  capital,  payable  at  the 
end  of  each  succeeding  month  from  the  time  it  shall  be  authorized 
by  the  corporation  commission  to  commence  business,  and  the  pay- 
ment of  each  instalment  shall  be  certified  to  the  corporation  commis- 
sion, under  oath,  by  the  cashier  or  president  of  the  bank. 

1903,  c.  275,  s.  10. 

225.  statement  filed  before  beginning  business.    Before  such 

company  shall  begin  the  business  of  banking  there  shall  be  filed 


225  BAXKS— Z.   Creation.  Ch.  7 

with  the  corporation  coimuission  a  statement  under  oath,  by  the 
cashier  or  president,  containing  the  names  of  all  of  the  directors  and 
officers,  with  the  date  of  the  election  or  appointment,  term  of  office, 
residence  and  postoffice  address  of  each,  the  amount  of  capital  stock 
of  which  each  is  the  owner  in  good  faith,  and  the  amount  of  money 
paid  in  on  account  of  the  capital  stock.  Xothing  shall  be  received 
in  payment  of  capital  stock  but  money. 
1903,  c.  275,  ss.  5,  10. 

226.  Authorized  to  begin  business,  when  and  how.    If  from 

such  statement,  or  upon  an  examination,  if  such  examination  appears 
necessary,  it  appears  to  the  corporation  coimnission  that  such  cor- 
poration is  lawfully  entitled  to  commence  the  business  of  banking, 
it  shall,  within  thirty  days  after  the  filing  of  the  certificate  required 
by  law,  give  to  such  corporation  a  certificate  signed  by  the  chairman 
of  the  corporation  commission,  attested  by  the  secretary  of  the  com- 
mission, that  such  corporation  has  complied  with  all  the  provisions 
required  to  be  comj^lied  with  before  commencing  the  business  of 
banking  and  that  such  corporation  is  authorized  to  commence  such 
business. 

1903,  c.  275,  s.  7. 

227.  Authority  to  begin  business  withheld,  when.  The  corpo- 
ration commission  may  withhold  from  any  bank  its  certificate  author- 
izing the  commencement  of  business  whenever  it  has  reason  to  be- 
lieve that  the  stockholders  have  formed  the  same  for  any  other  pur- 
pose than  the  legitimate  objects  contemplated  by  this  chapter. 

1903,  c.  275,  s.  6. 

II.     Powers  and  Duties. 

228.  Powers,  in  addition  to  the  j^owers  conferred  by  law  upon 
private  corporations,  banking  corporations  shall  have  power — 

1.  To  exercise  by  its  board  of  directors  or  duly  authorized  officers 
or  agents,  subject  to  law,  all  such  ^lowers  as  shall  be  necessary  to 
carry  on  the  business  of  banking,  by  discounting  and  negotiating 
promissory  notes,  drafts,  bills  of  exchange  and  other  evidences  of 
debts,  by  receiving  deposits,  by  buying  and  selling  exchange,  coin 
and  bullion,  by  loaning  money  on  personal  security  or  real  or  per- 
sonal property.  Such  corporation  at  the  time  of  making  loans  or 
discounts  may  take  and  receive  in  advance  such  interest  as  may  be 
agreed  upon  not  exceeding  the  legal  rate. 

2.  To  ]uirchase,  liold  and  convey  real  estate  for  the  following  ]iur- 
poses : 

1st.  Such  as  shall  be  necessary  for  the  convenient  transaction  of 
its  business,  including  with  its  banking  offices  other  apartments  to 


228  BANKS—//.  Powers  and  Duties.  Ch.  7 

rent  as  a  source  of  income,  -which  investment  shall  not  exceed  twenty- 
five  per  cent,  of  its  paid-in  capital  stock  and  permanent  surplus: 
Provided,  that  this  provision  shall  not  apply  to  any  such  investment 
made  before  the  ninth  day  of  !March,  one  thousand  nine  hundred 
and  three. 

2d.  Such  as  is  mortgaged  to  it  in  good  faith  by  way  of  security 
for  loans  made  or  money  due  to  such  bank. 

'■id.  Such  as  is  conveyed  to  it  in  satisfaction  of  debts  previously 
contracted  in  the  course  of  its  dealings. 

■ith.  Such  as  it  acquires  by  sale  under  execution  or  judgment  of 
any  court  in  its  favor. 

1003,  c.  275,  ss.  8.  0. 

229.  When  bank  may  purchase  its  stock.   Xo  bank  shall  be 

the  holder  as  pledgee  or  as  purchaser  of  any  portion  of  its  capi- 
tal stock,  unless  such  purchase  shall  be  necessary  to  prevent  loss  upon 
a  debt  previously  contracted  in  good  faith. 
1903,  c.  275,  s.  1. 

230.  Reorganization.  Whenever  any  bank,  under  the  laws  of 
this  state  or  of  the  United  States,  is  authorized  to  dissolve  and  shall 
have  taken  the  necessary  steps  to  effect  dissolution,  it  shall  be  lawful 
for  a  majority  of  the  directors  of  such  bank,  upon  the  a^ithority  in 
writing  of  the  owners  of  two-thirds  of  its  capital  stock,  with  the 
approval  of  the  corporation  commission,  to  execute  articles  of  incor- 
poration as  provided  in  this  chapter,  which  articles,  in  addition  to 
the  reqiiirements  of  law,  shall  further  set  forth  the  authority  derived 
from  the  stockholders  of  such  dissolved  national  bank  or  state  bank, 
and  upon  filing  the  same  as  hereinbefore  provided  for  the  organ- 
ization of  banks,  the  same  shall  become  a  bank  under  the  laws  of  this 
state,  and  thereupon  all  assets,  real  and  personal,  of  the  dissolved 
national  bank  shall  by  operation  of  law  be  vested  in  and  become  the 
property  of  such  state  bank,  subject  to  all  liabilities  of  such  national 
bank  not  liquidated  under  the  laws  of  the  United  States  before  such 
reorganization. 

1903,  c.  275,  s.  17. 

231.  Reserve  fund.  Every  bank  shall  at  all  times  have  on  hand 
as  a  reserve  in  available  funds  an  amount  equal  to  at  least  fifteen  per 
cent,  of  the  aggregate  amount  of  its  deposits.  Two-fifths  of  such 
fifteen  per  cent,  shall  be  cash  in  the  vaults  of  the  bank.  Savings 
banks  shall  have  on  hand  at  all  times,  as  a  reserve  in  available  funds, 
an  amount  equal  to  at  least  five  per  cent,  of  their  aggregate  deposits. 

1903,  c.  275,  s.  28. 


232  BANKS — II.  Powers  and  Duties.  Ch.  7 

232.  Available  funds;  when  below  reserve;  no  new  loans  or 

dividends.  The  available  funds  shall  consist  of  cash  on  hand  and 
balances  due  from  other  solvent  banks.  Cash  shall  include  lawful 
money  of  the  United  States,  and  exchange  for  any  clearing-house 
association.  Wlienever  the  available  funds  of  any  bank  shall  fall  be- 
low the  reserve  herein  required,  such  banlv  shall  not  make  any  new 
loans  or  discoimts  otherwise  than  by  discounting  or  purchasing  bills 
of  exchange  jaayable  at  sight ;  nor  shall  such  bank  make  any  divi- 
dends of  its  profits  iintil  it  has  on  hand  the  available  funds  required 
by  this  chapter. 
1903,  c.  275,  s.  29. 

233.  Loans  to  one  person  not  to  exceed  ten  per  cent,  of  capi- 
tal. The  total  liabilities  to  any  bank  or  banking  institution,  of  any 
person,  or  of  any  company,  corporation  or  firm,  for  money  borrowed, 
including  in  the  liabilities  of  a  company  or  firm  the  liabilities  of 
the  several  members  thereof,  shall  at  no  time  exceed  one-tenth  part 
of  the  amount  of  the  capital  stock  of  such  bank  or  banking  insti- 
tution actually  paid  in.  But  the  discount  of  bills  of  exchange  dra\vii 
in  good  faith  against  actually  existing  values  and  the  discount  of 
commercial  or  biisiness  paper  actually  owned  by  the  person  nego- 
tiating the  same  shall  not  be  considered  as  moiiey  borrowed.  This 
section  shall  not  apply  to  banks  with  a  paid-up  capital  of  one  hun- 
dred thousand  dollars  or  less. 

1897,  c.  298,  s.  3;  1897,  e.  432. 

234.  Chapter  on  corporations  applicable.  All  of  the  provis- 
ions of  law  relating  to  jirivate  corporations,  and  particularly  those 
emunerated  in  the  chapter  entitled  Corporations,  not  inconsistent 
with  this  chapter,  or  with  the  business  of  banking,  shall  be  appli- 
cable to  banks. 

1903,  c.  275,  s.  4. 

III.   Stockholders. 

235.  Individual  liability  of.  The  stockholders  of  every  bank  or- 
ganized under  the  laws  of  North  Carolina,  whether  under  the  gen- 
eral law  or  by  special  act,  shall  be  individually  responsible,  equally 
and  ratably,  and  not  one  for  another,  for  all  contracts,  debts  and  en- 
gagements of  such  corporation,  to  the  extent  of  the  amount  of  their 
stock  therein  at  par  value  thereof,  in  addition  to  the  amount  invested 
in  such  shares.  The  term  "stockholder,"  when  used  in  this  chapter, 
shall  apply  not  only  to  such  persons  as  appear  by  the  books  of  the 
corporation  to  be  stockholders,  but  also  to  every  owner  of  stock,  legal 
or  equitable,  although  the  same  may  be  on  such  books  in  the  name  of 


235  BANKS—///.  Stockholders.  Cb.   7 

another  person ;  but  shall  not  apply  to  a  person  who  may  hold  the 
stock  as  collateral  security  for  the  payment  of  a  debt. 

190.3,  c.  275,  s.  13;   1897,  c.  298. 

236.  Exemptions  in  special  charters  repealed.  Any  exemp- 
tion from  the  individual  liability  imposed  upon  stockholders  by  the 
preceding  section  contained  in  the  charter  of  any  bank  incorporated 
prior  to  the  first  day  of  January,  one  thousand  nine  hundred  and 
five,  is  repealed. 

1897,  c.  298,  s.  2. 

237.  Executors,  trustees,  etc.,  not  personally  liable.   Persons 

holding  stock  as  executors,  administrators,  guardians,  or  trustees  shall 
not  be  personally  subject  to  any  liabilities  as  stockholders,  but  the 
estates  and  funds  in  their  hands  shall  be  liable  in  like  manner  and 
to  the  same  extent  as  the  testator,  intestate,  ward,  or  person  inter- 
ested in  such  trust  funds  would  be  if  living  and  competent  to  act 
and  hold  the  stock  in  his  own  name. 
U.  S.  Rev.  Stat.,  s.  5152. 

238.  Transferer  not  liable,  when.   No  person  who  has  in  good 

faith  and  without  any  intent  to  evade  his  liability  as  a  stockholder, 
transferred  his  stock  on  the  books  of  the  corporation  to  any  person 
of  full  age,  jDrevious  to  any  default  in  the  payment  of  any  debt  or 
liability  of  the  corporation,  shall  be  subject  to  any  personal  liability 
on  account  of  the  nonpayment  of  such  debt  or  liability  of  the  cor- 
poration, biit  the  transferee  of  any  stock  so  transferred  previous 
to  any  default  shall  be  liable  for  any  such  debt  or  liability  of  the 
corporation  to  the  extent  of  such  stock,  in  the  same  manner  as  if 
he  had  been  the  owner  at  the  time  the  corporation  contracted  such 
debt  or  liability. 
1903,  e.  27.5,  s.  14. 

239.  stock  sold  if  subscription  unpaid.  Whenever  any  stock- 
bolder  or  his  assignee  fails  to  pay  any  instalment  on  the  stock,  when 
the  same  is  required  by  law  to  be  paid,  the  directors  of  the  bank  may 
sell  the  stock  of  such  delinquent  stockholder  at  public  sale,  as  they 
shall  deem  best,  having  first  given  the  delinquent  stockholder  twenty 
days'  notice,  personally  or  by  mail,  at  his  latest  known  address.  If 
BO  party  can  be  found  who  will  pay  for  such  stock  the  amount  due 
thereon  to  the  bank,  with  any  additional  indebtedness  of  stich  stock- 
holder to  the  bank,  tlie  amoiuit  previously  paid  shall  be  forfeited  to 
the  bank  and  such  stock  shall  be  sold  as  the  directors  may  order  within 
six  months  of  the  time  of  such  forfeiture,  and  if  not  sold,  it  shall 
be  cancelled  and  deducted  from  the  capital  of  the  bank. 

1903,  c.  275,  s.  11. 


240  BAXKS — IV.   Corpomiioii  Commission.  Cli.  7 

IV.      CoUPORATIOX  CoMiiissio:x. 

240.  May  make  rules.  The  corporation  commission  shall  have 
IDOwer  to  make  such  rules  for  the  government  of  the  banks  and  bank- 
ing institutions  of  this  state,  not  inconsistent  with  law,  as  may  in 
its  jndginent  seem  wise  and  expedient. 

1903,  e.  275,  s.  20. 

241.  Ail    banking   institutions   under   supervision    of.    Every 

bank,  corporation,  jiartnership,  firm  or  individual,  now  or  hereafter 
Iransacting  a  banking  business  under  the  laws  of,  and  within,  this 
state,  shall  be  subject  to  the  provisions  of  this  chapter  and  regulated 
by  and  be  under  the  supervision  of  the  corporation  commission. 
1903,  c.  275,  s.  10. 

242.  Quarterly  reports  to;  publication  in  county.   Every  bank 

and  every  corporation,  partnership,  firm  or  individual  transacting 
a  banking  biisiness  shall  make  to  the  corporation  commission  not 
less  than  four  reports  during  each  year,  according  to  the  form  which 
may  be  prescribed  by  said  commission ;  which  reports  shall  be  veri- 
fied in  the  case  of  incorporated  banking  companies  by  the  oath  or 
aiSrmation  of  the  jjresident,  vice-president  or  cashier,  and,  in  addi- 
tion, tAvo  of  the  board  of  directors,  and  in  other  cases  by  the  oath  or 
affirmation  of  the  partners,  members  of  the  firm  or  individual  owner. 
The  bank,  corporation  or  individiial  making  such  report  shall  pub- 
lish same  in  some  newspaper  in  the  county  in  which  such  bank,  cor- 
poration or  individual  is  located. 
1903,  c.  275,  s.  21. 

243.  Special  reports.  The  corporation  commission  shall  have 
power  to  call  for  special  reports  from  any  bank,  corporation,  firm  or 
individual  transacting  a  banking  business,  whenever  necessary,  in 
order  to  obtain  a  full  and  complete  knowledge  of  such  bank. 

1903,  c.  275,  s.  22. 

244.  Annual  report  of  stockholders.  Every  bank  shall  at  all 
times  keep  a  correct  record  of  the  names  of  all  its  stockholders,  and 
once  in  each  year,  or  whenever  called  \ipon,  file  in  the  office  of  the 
corporation  commission  a  correct  list  of  all  of  its  stockholders,  with 
the  number  of  shares  held  by  each. 

1903,  c.  275,  s.  10. 

245.  Penalty  for  failure  to  report,  etc.  Every  baid<,  corpora- 
tion, partnership,  firm  or  individual  that  sliall  refuse,  fail  or  neglect 
to  make  any  report,  or  any  published  statement  required  by  the  pro- 
visions of  this  chapter  shall  be  subject  to  a  penalty  of  two  hundred 


245  BANKS — IV.   Corporation  Commission.  Cli.  7 

dollars.     The  penalty  herein  provided  for  shall  be  recovered  by  the 
state  in  a  civil  action  in  any  court  of  competent  jurisdiction,  and  it 
shall  be  the  duty  of  the  attorney  general  to  j^rosecute  all  such  actions. 
1903,  c.  275,  s.  26. 


Note.     For  frauds  by  bank  officers  and  agents,  see  Crimes. 
For  false  and  fraudulent  bank  statements,  see  Crimes. 

\ 

V.     Bank  Examiners. 

246.  Appointed  by  corporation  commission.   The  corporation 

commission  shall  appoint  a  suitable  person  or  persons  to  make  an 
examination  of  and  into  the  affairs  of  every  bank,  corporation  or 
individual  doing  a  banking  business,  as  often  as  shall  be  deemed  nec- 
essary and  proper,  and  at  least  once  every  year.  And  it  shall  also 
be  the  duty  of  the  said  bank  examiner  to  verify  the  rejrort  made  by  the 
directors  or  members  or  individual  conducting  any  banking  institu- 
tion as  required  by  section  two  hundred  and  twenty-six.  The  cor- 
poration commission  may  at  any  time  remove  any  person  appointed 
by  it. 

1903,  c.  275,  s.  23;  1905,  c.  539. 

247.  Powers.  Such  examiners  shall  have  power  to  make  a  thor- 
ough examination  into  all  the  books,  papers  and  affairs  of  the  bank 
or  corporation,  firm  or  individual  transacting  a  banking  business, 
and,  in  so  doing,  to  administer  oaths  and  affirmations  and  to  examine 
on  oath  or  affirmation  any  individual  banker  and  the  officers,  agents, 
partners  and  clerks  of  such  bank,  corporation, .  firm  or  individual 
touching  the  matters  he  or  they  shall  be  authorized  and  directed 
to  inquire  into,  and  examine,  and  to  .summon,  and  by  attachment 
compel  the  attendance  of  any  person  or  jjersons  in  this  state  to  tes- 
tify under  oath  before  him  or  them  in  relation  to  the  affairs  of  such 
corporation,  partnership,  firm  or  individual. 

1903,  c.  275,  s.  24. 

248.  Reports  by,  to  corporation  commission.   Bank  examiners 

shall  make  a  full  and  detailed  report  iu  writing  to  the  corporation 
conunission,  of  the  condition  of  each  corporation,  partnership,  firm 
or  individual  doing  a  banking  business,  within  ten  days  after  each 
and  every  examination  made  by  them. 

1903,  c.  275,  s.  24. 

249.  Annual  examinations;  expenses  paid  by  banl<.  One  ex- 
amination each  year  shall  be  designated  as  the  anniial  exanaination, 
and  for  such  examination  the  bank,  corporation,  or  individual  so 
examined  shall  pay  into  the  office  of  the  corporation  commission,  to 


24:0  BAXKS— T'.  Bank  Examiners.  Ch.  7 

be  paid  to  the  examiners,  an  examination  fee,  as  follows:  Banks, 
banking  institutions  or  individiials  doing  a  banking  business,  hav- 
ing a  capital  of  twenty-five  thousand  dollars  or  less,  shall  pay  a  fee 
of  fifteen  dollars :  those  having  a  capital  stock  of  more  than  twenty- 
five  thoiisand  dollars  and  not  over  fifty  thousand  dollars,  twenty- 
five  dollars;  those  having  a  capital  stock  of  over  fifty  thousand  dol- 
lars, thirty  dollars.  The  expenses  incurred  and  services,  other  than 
examinations  performed  specially  for  any  bank,  shall  be  paid  by 
such  bank  or  banking  institution.  ISTo  bank  shall  be  compelled  to 
pay  for  more  than  one  examination  in  each  year,  imless  it  shall 
appear  that  the  condition  of  such  banlc,  banking  institution  or  banker 
is  precarious,  or  in  any  way  unsatisfactory,  then  it  shall  be  the  duty 
of  the  commission  to  order  a  specia> examination,  which  shall  be  paid 
for  by  such  bank  at  the  same  rates  as  the  annual  examinations. 
1903,  c.  275,  s.  25. 

250.  Take  possession  of  bank,  when;  receiver  appointed,  how. 

Any  bank  examiner  who  has  filed  such  bond  as  may  be  required  by 
the  commission,  when  ordered  by  the  commission,  shall  have  author- 
ity to  take  possession  of  any  bank  doing  business  under  the  laws 
of  this  state  and  retain  possession  thereof  for  a  time  sufficient  to 
make  a  thorough  examination  into  its  affairs  and  financial  con- 
dition; and  in  case  it  is  foiind  by  the  examiner,  upon  such  exami- 
nation, that  such  bank  is  insolvent  or  is  conducting  its  business 
in  an  unsafe  and  unauthorized  manner,  or  is  jeopardizing  the  in- 
terests of  its  depositors,  then  such  examiner,  when  axithorized  by 
the  corporation  commission,  shall  have  full  power  and  authority 
to  take,  hold  and  retain  possession  of  all  the  money,  rights,  credits, 
assets  and  property  of  every  description  belonging  to  such  bank,  cor- 
poration, partnership,  firm  or  individual,  until  the  corporation  com- 
mission can  receive  and  act  on  the  report  made  by  the  examiner  of 
such  bank,  and  have  a  I'eceiver  appointed,  for  the  purpose  of  winding 
up  and  settling  the  affairs  of  such  bank,  banking  institution  or 
banker,  according  to  law;  and  the  corporation  commission  is  hereby 
empowered,  in  its  own  name,  to  institute  and  maintain  civil  actions 
for  the  appointment  of  receivers  in  such  cases,  and  for  such  other 
relief  as  may  be  necessary  or  proper  to  protect  the  creditors  of  such 
bank.  The  commissioners  in  their  judgment  may  grant  such  bank, 
corporation  or  individual  sixty  days  in  which  to  correct  any  errors 
or  irregularities,  and  make  good  any  deficiencies  or  losses  shown  in 
any  reports  or  otherwise. 
in03.  C-.  275,  s.  .30. 

251.  May  make  arrests,  when.    When  it  .<hall  ajiiwar  to  any 

bank  examiner,  by  examination  or  otherwise,  that  any  officer,  agent, 


251  BANKS — V.  Bank  Examiners.  Ch.   7 

employee,  director,  stockholder  or  owner  of  a  bank  or  banking  insti- 
tution has  been  guilty  of  a  violation  of  the  criminal  laws  of  the  state 
relating  to  banks  and  banking  institutions,  it  shall  be  his  duty  to 
hold  and  detain  siich  person  until  a  warrant  can  be  procured  for 
his  arrest ;  and  for  such  purpose  such  examiner  shall  have  and  pos- 
sess all  the  powers  of  a  peace  officer  of  such  county,  and  may  arrest 
without  warrant  for  past  offenses.  Upon  report  of  his  action  to  the 
corporation  eouuuission,  it  may  direct  the  release  of  the  person  so 
held,  or,  if  in  its  judgment  such  person  should  be  prosecuted,  the 
commission  shall  cause  the  solicitor  of  the  judicial  district  in  which 
such  detention  is  had  to  be  promptly  notitied,  and  the  action  against 
such  person  shall  be  continued  a  reasonable  time  to  enable  such  solic- 
itor to  be  present  at  the  trial. 


Note.     For  malfeasance  by  bank  examiners,  see  Crimes. 


CHAPTEE  8. 
BASTARDY. 

(Sectfons  252—204.) 

252.  Justices  have  jurisdiction;  warrant  issued  only  on  com- 
plaint of  woman  or  county  commissioner.  Justices  of  the  peace 
of  the  several  counties  shall  have  exclusive  original  jurisdiction  to 
issue,  try  and  determine  all  proceedings  in  cases  of  bastardy  in  their 
respective  counties.  A  warrant  in  bastardy  shall  be  issued  only 
upon  the  voluntary  affidavit  and  complaint  of  the  mother  of  the 
bastard ;  or,  upon  the  affidavit  of  one  of  the  county  commissioners, 
setting  forth  the  fact  that  the  bastard  is  likely  to  become  a  county 
charge. 

Code,  s.  ,31. 

253.  Procedure  on  complaint  by  county  commissioner.   ^Yhen 

complaint  is  made  on  affidavit  by  one  of  the  county  commissioners, 
as  set  forth  in  the  preceding  section,  to  any  ji;stice  of  the  peace  of 
the  county  in  which  the  woman  resides,  that  any  single  woman 
within  his  county  is  big  with  child,  or  delivered  of  a  child,  he  may 
cause  her  to  be  brought  before  him,  or  any  other  justice  of  the 
county,  to  be  examined  upon  oath  respecting  the  father;  and  if  she 

Rev.  Vol.  I— .3  65 


253  BASTAEDY.  Ch.  S 

shall  refuse  to  declare  the  father,  she  shall  pay  a  fine  of  five  dollars 
aud  give  a  bond  payable  to  the  state  with  sufiicient  surety  to  keep 
such  child  from  being  chargeable  to  the  county,  otherwise  she  shall 
be  committed  to  prison  until  she  shall  declare  the  same,  or  pay  the 
fine  aforesaid  and  give  such  bond. 
Code,  s.  32. 

254.  Procedure  when  woman  declares  father.   If  any  woman 

shall,  upon  oath,  accuse  any  man  of  being  the  father  of  her  bastard 
child,  the  JTistice  before  whom  such  oath  is  made  shall  cause  him 
to  be  brought  before  some  justice  of  the  peace  of  such  county  to 
answer  the  charge;  and,  if  he  shall,  upon  oath,  deny  that  he  is  the 
father  of  such  child,  the  justice  shall  proceed  to  try  the  issue  of 
paternity,  and  if  it  shall  be  found  that  he  is  the  father  of  the  child, 
or  if  he  shall  not  deny  upon  oath  that  he  is  the  father  of  the  child, 
then  he  shall  stand  charged  with  the  maintenance  thereof,  as  the 
court  may  order,  and  shall  give  bond,  with  sufficient  surety,  payable 
to  the  state,  to  perform  said  order,  and  to  indemnify  the  county 
where  such  child  shall  be  born  from  charges  for  his  maintenance 
and  may  be  committed  to  prison  until  he  finds  surety  for  the  same, 
and  shall  be  liable  for  the  costs  of  the  issue  or  proceeding,  and  from 
this  judgment  and  finding  the  afliant,  the  woman  or  the  defendant 
may  appeal  to  the  next  term  of  the  superior  court  of  the  county 
where  the  trial  is  to  be  had  de  novo. 
Code,  s.  32. 

255.  Procedure  on  appeal.  Upon  the  trial  of  the  issue,  whether 
before  the  justice  or  at  term,  the  examination  of  the  woman,  taken 
and  returned,  shall  be  presumptive  evidence  against  the  person 
accused,  subject  to  be  rebutted  by  other  testimony  which  may  be 
introduced  by  the  defendant;  and,  if  the  jury  at  term  shall  find 
that  the  person  accused  is  the  father  i:>f  the  child,  then  the  juilge 
shall  make  the  order  for  the  maintenance  and  for  costs  of  proceeding, 
and  shall  takd  bond  from  the  defendant  and  his  sureties  for  the 
maintenance  of  the  child  and  to  indemnify  the  county  and  pay  the 
costs ;  and,  in  default  thereof,  may  imprison  the  defendant. 

Code,  s.  32. 

256.  Putative  father  out  of  county.  If  the  putative  father  shall 
escape  or  be  in  any  other  county  tlian  that  of  the  justice  issuing  the 
warrant,  it  shall  be  issued,  endorsed,  executed  and  returned  as  pro- 
vided in  warrants  in  criminal  actions. 

Code,  s.  32. 

257.  Upon  appeal  parties  and  witnesses  recognized.   When  anj 

appeal  shall  be  taken  the  justice  shall  recognize  the  person  accusedj 


257  BASTAEDY.  Ch.  8 

of  being  the  father  of  the  child  with  sufficient  surety  for  his  appear- 
ance at  the  next  term  of  the  superior  court  for  the  county,  and  to 
abide  by  and  perform  the  order  of  the  court;  said  justice  shall  also 
recognize  the  woman  and  other  witnesses  to  appear  at  said  superior 
court,  and  shall  return  to  said  court  the  original  papers  in  the  pro- 
ceeding and  a  transcript  of  his  proceedings  as  required  in  other 
cases  of  appeal.  If  the  putative  father  fail  to  appear,  unless  for 
good  cause  shown,  the  judge  shall  direct  the  issue  of  paternity  to  be 
tried ;  and  if  the  issue  be  found  against  the  person  accused,  he  shall 
order  a  capias  or  attachment  to  be  issued  for  the  father,  and  may  also 
enter  up  judgment  against  the  father  and  his  surety  on  his  recogni- 
zance. 

Code,  s.  3.-!. 

258.  Case  may  be  continued  till  birth  of  child.  When  the  judge 

or  JTistice,  as  the  case  may  be,  trying  the  issue  of  paternity,  shall 
deem  it  proper,  he  may  continue  the  case  until  the  woman  shall  be 
delivered  of  the  child ;  but  when  a  continuance  is  granted,  the  court 
shall  recognize  the  person  accused  of  being  the  father  of  the  child 
with  surety  for  his  appearance  either  at  the  next  term  of  the  court 
or  at  a  time  to  be  fixed  by  the  justice  granting  the  continuance,  which 
shall  be  after  the  delivery  of  the  woman. 
Code,  s.  34. 

259.  Fine,  allowance  and  bond.  When  the  issue  of  paternity 
shall  be  found  against  the  putative  father,  or  when  he  admits  the 
paternit}',  he  shall  be  fined  by  the  judge  or  justice  not  exceeding 
the  sum  of  ten  dollars  and  the  court  shall  make  an  allowance  to  the 
woman  not  exceeding  the  sum  of  fifty  dollars,  to  be  paid  in  such 
instalments  as  the  judge  or  justice  shall  see  fit,  and  he  shall  give 
bond  to  indemnify  the  county  as  prescribed  by  law;  and  in  default 
of  such  payment  he  shall  be  committed  to  prison. 

Code,  s.  35. 

260.  Action  barred  in  three  years  after  birth.   All  examinations 

upon  oath  to  charge  any  man  with  being  the  father  of  a  bastard 
child  shall  be  taken  within  three  years  next  after  the  birth  of  the 
child,  and  not  after. 
Code,  s.  30. 

261.  Execution  may  issue  for  ma^intenance.   When  the  judgj  or 

justice  shall  charge  the  father  of  a  bastard  child  with  its  main- 
tenance and  the  father  shall  neglect  to  pay  the  same,  then  the 
JTidge  or  justice,  upon  application  of  the  party  aggrieved,  notice 
being  served  on  the  defendant  at  least  ten  days  before  the  return  day 
stated  in  the  notice,  or  such  notice  being  returned  by  the  sheriff  or 

67 


261  BASTARDY.  Ch.  S 

constable  that  the  defendant  is  not  to  be  found,  may  order  an  execu- 
tion against  the  goods,  chattels,  lands  and  tenements  of  the  father 
for  such  sum  as  the  court  shall  adjudge  sufficient  for  the  main- 
tenance of  the  bastard  child. 
Code,  s.  .37. 

262.  Putative  father  when  committed  or  apprenticed.    In  all 

cases  arising  under  this  chapter,  when  the  putative  father  shall  be 
charged  with  costs  or  the  payment  of  money  for  the  support  of  a 
bastard  child,  and  such  putative  father  shall,  by  law,  be  subject  to 
be  committed  to  prison  in  default  of  paying  the  same,  it  shall  be 
com])etent  for  the  court  to  sentence  such  ]nitative  father  to  the  liouse 
of  correction  for  such  time,  not  exceeding  twelve  months,  as  the 
court  may  deem  proper:  Provided,  that  such  person  or  putative 
father,  at  his  discretion,  instead  of  being  committed  to  prison  or 
to  the  house  of  correction,  may  bind  himself  as  an  apprentice  to 
any  person  whom  he  may  select,  for  such  time  and  at  such  price  as 
the  court  may  direct.  The  binding  shall  be  by  indenture  in  open 
court,  and  the  price  obtained  shall  be  paid  to  the  county  treasurer. 
On  the  indentTire  being  signed  by  the  presiding  judge  of  the  court 
and  by  the  master  receiving  such  apprentice,  the  person  thus  bound 
shall  be  treated  and  regarded  as  an  apprentice  in  all  matters  except 
education. 

Code,  s.  38. 

263.  Procedure  for  legitimating  bastards.    The  jnitntivc  fatluu- 

of  any  illegitimate  child  may  apply  by  petition  in  writing  to  the 
superior  court  of  the  coiinty  in  which  the  father  may  reside,  praying 
that  such  child  may  be  declared  legitimate;  and  if  it  shall  appear 
that  the  petitioner  is  reputed  the  father  of  the  child,  the  court  may 
thereupon  declare  and  pronounce  the  child  legitimated ;  and  the 
clerk  shall  record  the  decree. 
Code,  s.  39. 

264.  Effects  of  legitimation.  The  cflcct  of  such  legitimation 
shall  extend  no  further  than  to  impose  upon  the  father  all  the  obli- 
gations which  fathers  owe  to  their  lawful  children,  and  to  enable 
the  child  to  inherit  from  the  father  only  his  real  estate,  and  also 
to  entitle  such  child  to  the  personal  estate  of  his  father,  in  the  same 
maimer  as  if  he  liad  been  born  in  lawful  wedlock;  and  in  case  of 
death  and  intestacy,  the  real  and  personal  estate  of  such  child  shall 
be  transmitted  and  distributed  according  to  the  statute  of  descents 
and  distribution  among  those  who  would  be  his  heirs  and  next  of 
kin  in  case  he  had  been  born  in  lawful  wedlock. 

Code,  s.  40. 


265  BONDS—/.  Mortgage  in  Lieu  of.  Ch.  9 


CHAPTEK  9. 
BONDS. 

Sections. 
I.     Mortgage  in  lieu  of.  265 — 271 

II.     In  surety  companies,  272 — 277 

III.  Officer  acting  without,  278 

IV.  Irregularity,  279 
V.     Actions  on,                                                                  280—286 

VI.  State  officers,  287—294 

VII.  County  officers,  295—306 

VIII.  Pilots;  307 

IX.  Duty  of  county  commissioners,  308 — 315 

X.  Duty  of  superior  court  judge,  316 — 318 

XI.  Fiduciaries.  319—324 

T.     Mortgage  in  Lieu  of. 

265.  Fiduciary  or  official.  Any  administrator,  execntor,  guar- 
dian, collector  or  receiver,  or  any  officer  required  to  give  an  official 
bond,  or  the  agent  or  snrety  of  such  person  or  officer,  may  execute 
a  mortgage  on  real  estate,  of  the  value  of  the  bond  required  to  be 
given  by  such '  administrator,  executor,  guardian,  collector,  receiver 
or  officer,  to  the  state  of  Xorth  Carolina,  conditioned  to  the  same 
effect  as  the  bond  should  be,  were  the  same  given,  with  a  power  of 
sale,  which  power  of  sale  may  be  executed  by  the  clerk  of  the  superior 
court,  with  whom  said  mortgage  shall  be  deposited,  upon  a  breach 
of  any  of  tlie  conditions  of  said  mortgage,  after  advertisement  for 
thirty  days. 

Code.   s.   118;    1874-5,  c.   103,  s.  2. 

266.  Appearance;    security  for  costs  or  fine.     Any  person 

required  to  give  a  bond  or  undertaking,  or  required  to  enter  into  a 
recognizance  for  his  appearance  at  any  court,  in  any  criminal  pro- 
ceeding, or  for  the  security  of  any  costs  or  fine  in  any  criminal 
action,  may  also  execute  a  mortgage  on  real  or  personal  property 
of  the  value  of  such  bond  or  recognizance,  payable  to  the  state  of 
ISTorth  Carolina,  conditioned  as  such  bond  or  recognizance  would 
be  required,  with  power  of  sale,  which  power  shall  be  executed  by 
the  clerk  or  justice  of  the  peace  in  whose  court  said  mortgage  shall 
be  executed,  upon  a  breach  of  any  of  the  conditions  of  said  mort- 
gage: Provided,  that  where  such  mortgage  upon  real  property  is 
executed  before  a  justice  of  the  peace  the  power  of  sale  shall  be 
enforced  by  the  clerk  of  the  court  of  the  county  in  which  the  crimi- 


266  BONDS— 7.  Mortgage  in  Lieu  of.  Ch.  9 

nal  proceeding  is  had:  And  provided  further,  that  no  such  mort- 
gage on  real  property  executed  for  the  security  for  costs  or  fine 
shall  allow  a  longer  time  for  payment  of  said  costs  or  fine  than  six 
months  from  the  execution  tliereof,  and  no  mortgage  on  personal 
property  a  longer  time  than  three  months,  except  in  cases  of  appeal, 
when  the  time  allowed  shall  be  counted  from  the  date  of  the  final 
decision  in  the  cause :  And  provided  further,  that  all  legitimate 
expenses  of  sale,  which  shall  only  be  made  after  due  advertisement 
according  to  law,  shall  be  paid  out  of  the  proceeds  of  the  sale  of  the 
mortgaged  property,  as  shall  also  the  fullowing  fees,  to-wit:  For 
each  sale  of  real  property  mortgaged  under  this  section  the  clerk 
shall  receive  two  dollars,  and  for  each  sale  of  personal  property 
mortgaged  under  this  section  the  clerk  or  justice  of  the  peace  who 
enforces  the  power  of  sale  shall  receive  one  dollar. 

Cotle,  s.   120;   1874-5,  c.  103,  s.  3;   1891,  c.  425,  ss.   1,  2,  3. 

267.  How  cancelled;  effect.  Any  mortgage  given  by  any  person 
in  lieu  of  bond  or  undertaking  or  recogiaizance  for  his  appearance  at 
any  court  in  any  criminal  proceeding,  or  for  the  security  of  any  cost 
or  fine  in  a  criminal  action,  which  has  been  registered,  when  the 
party  made  his  appearance  at  the  court  to  which  he  was  bound  and 
did  not  depart  the  court  without  leave,  or  paid  the  cost  or  fine  re- 
quired, may  be  cancelled  or  discharged  by  the  clerk  of  the  court  of 
the  county  where  such  action  was  pending  by  entry  of  "satisfaction" 
iipon  the  margin  of  the  record  where  siich  mortgage  is  recorded,  in 
the  presence  of  the  register  of  deeds  or  his  deputy,  who  shall  sub- 
scribe his  name  as  a  witness  thereto,  and  such  release  shall  have  the 
eifect  to  discharge  and  release  all  the  right,  title  and  intei'est  of  the 
state  of  North  Carolina  in  and  to  the  property  described  in  such 
mortgage. 

1905,  e.  106. 

268.  Clerk  superior  court;  depository  of.   in  all  cases  where  the 

clerk  of  the  superior  court  may  be  required  to  give  surety,  he  may 
deposit  a  mortgage  Avith  the  register  of  deeds,  payable  to  the  state, 
and  conditioned,  as  the  bond  would  have  been  required,  witli  power 
of  sale.  The  power  of  sale  shall  be  executed  by  the  register  of 
deeds,  upon  a  breach  of  any  of  the  conditions  of  said  mortgage;  and 
the  register  of  deeds  shall  in  all  cases  immediately  register  the 
same,  at  the  expense  of  the  said  clerk. 

Code,  s.   122;   1874-5,  c.   103,  s.  6. 

269.  Prosecution.    Tt  shall  be  lawful  for  any  person  desiring  to . 
commence  any  civil  action  or  special  proceeding,  or  to  defend  the 
same,  his  agent  or  surety,  to  execute  a  mortgage  on  real  estate  of  the 


269  BONDS—/.  Mortgage  in  Lieu  of.  Ch.   9 

value  of  the  bond  or  undertaking,  required  to  be  given  at  the  begin- 
ning of  said  action,  or  at  any  stage  thereof,  to  the  party  to  whom  the 
bond  or  undertaking  would  be  required  to  be  made,  conditioned  to 
the  same  effect  as  such  bond  or  undertaking,  with  power  of  sale, 
which  power  of  sale  may  be  executed  upon  a  breach  of  any  of  the 
conditions  of  the  said  mortgage  after  advertisement  for  thirty  days. 
Code,  s.  117;   1874-5,  c.  103,  s.  1. 

270.  Affidavit  of  value  of  property  required,   in  all  cases  where 

a  mortgage  is  executed,  as  hereinbefore  permitted,  it  shall  be  the 
duty  of  the  clerk  of  the  court  in  which  it  is  executed,  or  of  the 
justice,  to  require  an  affidavit  of  the  value  of  the  property  mort- 
gaged to  be  made  by  at  least  one  witness  not  interested  in  the  mat- 
ter, action  or  proceeding  in  which  the  mortgage  is  given. 
Code,  s.  121;  1874-5,  c.  103,  s.  4. 

271.  Additional  security  required,  when.  If,  from  any  cause,  the 

property  mortgaged  in  lieu  of  a  bond  shall  become  of  less  value  than 
the  amount  of  the  bond  in  lieu  of  Avhicli  the  mortgage  is  given,  and 
it  shall  so  appear  upon  affidavit  of  any  person  having  any  interest 
in  the  matter  as  a  security  for  which  the  mortgage  was  given,  it  shall 
be  the  duty  of  the  mortgagor  to  give  additional  security  by  a  deposit 
of  money,  or  the  execution  of  a  mortgage  on  more  property,  or 
justify  as  required  in  cases  where  bond  or  undertaking  is  given. 

Code,  s.   119;    1874-5,  c.   103,  s.  5. 

II.     In  Sueett  Companies. 

272.  By  state  officers.  AH  persons  who  are  required  to  give  bond 
to  tlie  state  of  North  Carolina  to  be  received  by  the  governor  or  by 
any  department  of  the  state  government  shall,  in  lieu  of  personal 
security,  be  permitted  to  give  as  security  for  said  bond  and  for  the 
performance  of  the  dvities  named  in  the  said  bond  any  indemnity 
or  guaranty  company  authorized  to  do  business  in  the  state  of 
North  Carolina,  subject  to  such  regulations  as  the  governor  or  depart- 
ment may  prescribe,  and  with  power  in  them  to  demand  additional 
security  at  any  time.  Any  person  presenting  any  indemnity  or 
guaranty  company  as  surety  shall  accompany  his  bond  with  a  state- 
ment of  the  insurance  commissioner  as  to  the  condition  of  such  com- 
pany as  required  in  this  Revisal. 

1901,  c.  754. 

Note.     For  certificate  of  solvency  and  insolvency,  see  ss.  4802,  4803. 

273.  Municipal  officers;  fiduciaries;  litigants,  etc.   Whenever, 

by  the  law  of  iSTorth  Carolina,  or  by  the  regulation  of  any  board, 
body  or  organization  in  this  state,  any  bond,  recognizance,  obliga- 

71 


273  BOXDS— //.   7/1  Surely  Companies.  Cli.   9 

tion  or  undertaking  is  required  of,  permitted  to  be  made,  given, 
tendered  or  filed  by  any  sheriff,  clerk  of  a  court,  register  of  deeds, 
tax  collector,  treasurer,  constable  or  coroner,  mayor,  clerk,  police- 
man, weigher  or  standard  keeper  of  any  county,  city,  to^^^l  or  town- 
ship in  this  state,  or  by  any  trustee,  i-eceiver,  guardian,  administra- 
tor, executor,  assignee,  or  any  other  fiduciary,  or  party  to  a  civil 
action  or  proceeding,  either  for  the  prosecution  thereof  or  for  any 
other  purpose  whatsoever  in  the  coiirse  of  the  action,  or  by  any 
officer  of  any  town  or  city,  conditioned  for  the  doing  .or  not  doing 
of  anything,  in  such  bond,  recognizance,  obligation  or  undertaking 
specified,  any  and  all  clerks  of  the  superior  courts,  municipal  offi- 
cers, boards,  courts  and  judges,  now  or  hereafter  permitted  to  accept, 
approve  or  pass  upon  the  sufficiency  of  such  bond,  recognizance, 
obligation  or  undertaking  shall  accept  such  bond,  recognizance,  obli- 
gation or  undertaking,  and  approve  the  same,  whenever  the  same  is 
executed  or  the  conditions  thereof  are  guaranteed  by  a  corporation 
of  this  or  any  other  state  licensed  in  this  state,  which  corporation 
under  its  charter  is  authorized  to  act  as  guardian  or  other  trustee, 
or  to  g-uarantee  the  fidelity  of  any  persons  holding  places  of  piiblic 
and  private  trusts,  and  to  guarantee  the  performance  of  contracts, 
other  than  insurance  policies,  and  to  execute  and  guarantee  bonds 
and  undertakings  required  or  jiermitted  in  actions  or  proceedings, 
as  by  law  allowed.  Whenever  such  bond,  recognizance,  ol)ligation  or 
undertaking  is  so  required  or  permitted  to  be  made,  given,  tendered 
or  filed  with  one  surety,  or  with  two  or  more  sureties,  the  execution 
of  the  same,  or  the  guaranteeing  of  the  performance  of  the  condition 
thereof,  shall  be  sufficient  when  executed  or  giiaranteed  solely  by 
such  company  so  authorized,  and  shall  be  in  all  respects  a  full  and 
complete  compliance  with  every  requirement  of  every  law,  rule  and 
regulation  that  such  bond,  recognizance,  obligation  or  iindertaking 
shall  be  executed  by  one  surety  or  two  sureties,  and  that  such  surety 
or  sureties  shall  be  residents  or  freeholders,  and  such  bond,  recog- 
nizance, obligation  or  undertaking  shall  be  accepted  and  approved 
when  executed  by  such  company :  Provided,  the  clerk  of  the  superior 
court  may  have  discretion  as  to  the  acceptance  of  any  bond  on  which 
said  company  or  companies  may  become  sureties  on  the  bonds  of 
guardians,  execiitors,  administrators,  assignees,  or  other  fiduciary 
or  any  other  party  to  a  civil  action  or  proceeding. 
1895,  c.  270;  1890,  c.  54,  s.  45;   1901.  c.  700. 

274.  How  released  from  liability.  Any  company  executing  such 
bond,  obligation  or  undertaking,  may  be  released  from  its  liability 
or  security  on  tlic  same  terms  as  are  or  may  be  by  law  pi-escribed  for 
the  release  of  individuals  upon  any  such  bonds,  obligations  or 
undertakings. 

1899,  c.  54,  9.  48. 


275  BOXDS— 77.  7/i.  SurcHy  Companies.  Cli.   9 

275.  Estoppel  to  plead  ultra  vires;  penalty  failure  to  pay  judg- 
ment. Any  company  which  shall  execute  any  bond,  obligation  or 
undertaking  under  the  provisions  of  this  subchapter  shall  be  estopped 
in  any  proceeding  to  enforce  the  liability  which  it  shall  assume  to 
incur,  to  deny  its  corporate  power  to  execute  such  instrument  or 
assume  such  liability.  If  any  surety  company  against  which  a 
judgment  shall  have  been  recovered  shall  fail  to  discharge  the  same 
within  sixty  days  from  time  such  final  judgment  is  rendered,  it 
shall  forfeit  its  right  to  do  business  in  this  state,  and  the  insurance 
commissioner  shall  cancel  its  license. 

1899,  c.  54,  s.  49;    1901,  c.  706,  s.   1,  siib-s.  5. 

276.  When  accepted  and  officer  inducted.    I  pon  pre.sentation 

to  the  person  authorized  by  law  to  take,  accept  and  file  official  bonds, 
of  any  bond  duly  executed  in  the  penal  sum  required  by  law  by  the 
officer  chosen  to  any  such  office,  as  principal,  and  by  any  surety 
company,  as  security  thereto,  whose  insurance  or  guaranty  is  accepted 
as  security  upon  the  bonds  of  United  States  bonded  officials  (such 
insurance  company  having  complied  with  the  insurance  laws  of 
the  state  of  ISTorth  Carolina),  or  by  any  other  good  and  sufficient 
security  thereto,  such  bond  shall  be  received  and  accepted  as  suffi- 
cient, and  the  principal  thereon  shall  be  inducted  into  office. 
1899,  c.  54,  s.  53;  1901,  c.  706,  s.  1,  sub-s.  5. 

277.  Expense  of  fiduciary  bond  cliarged  to  fund.  Any  receiver, 

assignee,  trustee,  committee,  guardian,  executor  or  administrator, 
or  other  fiduciary  required  by  law  to  give  a  bond  as  such,  may 
include  as  part  of  his  lawful  expenses  such  sums  paid  to  such 
companies  for  such  suretyship  not  exceeding  one-half  of  one  per 
cent,  per  annum  on  the  account  of  such  bonds  as  the  clerk,  judge  or 
court  may  allow. 

1901,  c.  706,  s.  1,  sub-s.  5. 


NbTE.  For  requisites  for  surety  companies  to  be  accepted  as  bondsmen,  see 
Insurance. 

III.     Officer  Acting  Without. 

278.  Penalty  for.  Every  person  or  officer  of  whom  an  official 
bond  is  required,  who  shall  p)resume  to  discharge  any  duty  of  his 
office  before  executing  such  bond  in  the  manner  prescribed  by  law, 
is  liable  to  a  forfeiture  of  five  hundred  dollars  to  the  use  of  the 
state  for  each  attempt  so  to  exercise  his  office. 

Code.  s.  1882;  R.  C,  c.  78,  s.  8. 


279  BONDS— 7T.  Iiregulariiij.  Ch.  9 

IV.     Irregulaeitt. 

279.  Informal  taking,  not  to  invalidate.  Whenever  any  instru- 
ment shall  be  taken  by  or  received  under  the  sanction  of  the  board 
of  county  commissioners,  or  by  any  person  or  persons  acting  under 
or  in  virtue  of  any  public  authority,  purporting  to  be  a  bond  executed 
to  the  state  for  the  performance  of  any  duty  belonging  to  any  office 
or  appointment,  such  instrument,  notwithstanding  any  irregularity 
or  invalidity  in  the  conferring  of  the  office  or  making  of  the  appoint- 
ment, or  any  variance  in  the  penalty  or  condition  of  the  instrument 
from  the  jDrovision  prescribed  by  law,  shall  be  valid  and  may  be 
put  in  suit  in  the  name  of  the  state  for  the  benefit  of  the  person 
injured  by  a  breach  of  the  condition  thereof,  in  the  same  manner 
as  if  the  office  had  been  duly  conferred  or  the  appointment  duly 
made,  and  as  if  the  penalty  and  condition  of  the  instrument  had 
conformed  to  the  provisions  of  law:  Provided,  that  no  action  shall 
be  sustained  thereon  because  of  a  breach  of  any  condition  thereof 
or  any  part  of  the  condition  thereof  which  is  contrary  to  law. 

Code,  s.  1S91;  R.  C,  c.  78,  s.  9;  1842,  c.  61;  1869-70,  c.  169,  s.  16. 

V.     Actions  on. 

280.  Taken  in  judicial  proceedings  brought  in  name  of  state. 

Bonds  and  other  obligations  taken  in  the  course  of  any  proceeding 
in  law,  under  the  direction  of  the  court,  and  payable  to  any  clerk, 
commissioner,  or  officer  of  the  court,  for  the  benefit  of  the  suitors 
in  the  caxise,  or  others  having  an  interest  in  such  obligation,  may 
be  put  in  suit  in  the  name  of  the  state. 
Code,  s.  51;  R.  C,  c.  13,  s.  11. 

281.  Official  bonds,  relator;   successive  suits.   Every  person 

injured  by  the  neglect,  misconduct,  misbehavior  in  office  of  any 
clerk  of  the  superior  court,  register,  entry-taker,  surveyor,  sheriff, 
coroner,  constable,  county  treasurer,  or  other  officer  may  institiite 
a  suit  or  suits  against  said  officer  or  any  of  them  and  their  sureties 
iipon  their  respecti%'e  bonds  for  the  due  performance  of  their  duties 
in  office  in  the  name  of  the  state,  without  any  assignment  thereof; 
and  no  such  bond  shall  become  void  upon  the  first  recovery,  or  if 
judgiuent  shall  be  given  for  the  defendant,  but  may  be  p\it  in  suit 
and  pro.secuted  from  time  to  time  until  the  whole  penalty  shall  be 
recovered,  and  every  such  officer,  and  the  sureties  on  his  official 
bond,  shall  be  liable  to  the  person  injured  for  all  acts  done  by  said 
officer  by  virtue  or  under  color  of  his  office. 

Code,  .s.  18S:);  R.  C,  c.  78,  s.  1;  1793,  c.  384,  s.  1;  1833.  c.  17;  182.>.  c.  9: 
1869-70,  c.  169,  s.  10. 


282  BONDS— 7.  Actions  on.  Ch.  9 

282.  Complaint  must  show  party  in  interest;  may  sue  officer 

individually.  Any  person  -who  may  bring  suit  in  manner  aforesaid 
shall  state  in  his  complaint  on  whose  relation  and  in  whose  behalf 
the  suit  is  brought,  and  he  shall  be  entitled  to  receive  to  his  oxm  use 
the  money  recovered ;  but  nothing  herein  contained  shall  prevent 
such  person  from  bringing  at  his  election  an  action  against  the 
officer  to  recover  special  damages  for  his  injury. 

Code,  s.  1884:  R.  C,  c.  78,  s.  2;  1793,  c.  384,  ss.  2,  3;  1869-70,  c.  169,  s.  11. 

283.  Summary  remedy  on  official  bond.    Whenever  a  sheriff, 

coroner,  constable,  clerk,  county  or  town  treasurer,  or  other  officer, 
shall  have  collected  or  received  any  money  by  virtue  or  under  color 
of  his  office,  and  on  demand  shall  fail  to  pay  the  same  to  the  person 
entitled  to  require  the  payment  thereof,  the  person  thereby  aggrieved 
may  move  for  judgment  in  the  superior  court  against  such  officer 
and  his  sui'eties  for  any  sum  demanded ;  and  the  court  shall  try  the 
same  and  render  jiidgment  at  the  term  when  the  motion  shall  be 
made,  but  ten  days'  notice  in  writing  of  the  motion  must  have  been 
previously  giveij. 

Code,  s,  1889;  R.  C,  c.  78,  s.  5;  1819,  c.  1002;  1869-70,  c.  169,  s.  14;  1876-7, 
c,  41,  s.  2. 

284.  Damages  against  officers  for  money  unlawfully  detained. 

Whenever  money  received  as  aforesaid  shall  be  unlawfully  detained 
by  any  of  said  officers,  and  the  same  shall  be  sued  for  in  any  mode 
whatever,  the  plaintiff  shall  be  entitled  to  i-ecover,  besides  the  siim 
detained,  damages  at  the  rate  of  twelve  j^er  centum  per  annum  from 
the  time  of  detention  until  payment. 

Code,  s.  1890;  R.  C,  e.  78,  s.  9;  1819,  c.  1002,  s.  2;  1S68-9.  c.  169. 

285.  Evidence  against  principal  admissible  against  sureties. 

Ill  actions  brought  uj^on  the  official  bonds  of  clerks  of  courts, 
sheriffs,  coroners,  constables,  or  other  public  .officers,  and  also  upon 
the  bonds  of  executors,  administrators,  collectors  or  guardians,  when 
it  may  be  necessary  for  the  plaintiff  to  prove  an,y  default  of  the 
principal  obligors,  any  receipt  or  acknowledgment  of  such  obligors, 
or  any  other  matter  or  thing  which,  by  law  would  be  admissible 
and  competent  for  or  toward  proving  the  same  as  against  him,  shall 
in  like  manner  be  admissible  and  competent  as  presumptive  evidence 
only  against  all  or  any  of  his  sureties  who  may  be  defendants  with 
or  without  him  in  said  actions. 

Code,  s,  1345;  R,  C,  e.  44.  s.  10;  1844,  c.  38;  1881,  e,  8. 

286.  Officer  liable  for  the  debt,  when.    When  a  claim  shall  be 

placed  in  the  hands  of  any  sheriff",  coroner  or  constable  for  collec- 
tion, and  he  shall  not  use  due  diligence  in  collecting  the  same,  he 

75 


286  BOXDS— T.  Actions  on.  Ch.  9 

shall  be  liable  for  the  full  amount  of  the  claim  notwithstanding  the 
debtor  may  have  been  at  all  times  and  is  then  able  to  pay  the  amount 
thereof. 

Code,  s.  1888;  R.  C,  c.  78,  s.  3;   1844,  c.  G4 ;   1869-70,  e.  169,  s.  12. 

VI.     State  Officees. 

287.  Secretary  of  state.  The  secretary-  of  state  shall  give  knid 
with  sufficient  surety,  approved  by  the  governor  and  atiditor,  for  the 
sum  of  twenty  thousand  dollars,  payable  to  the  state,  and  conditioned 
for  the  faithful  performance  of  his  duties.  And  the  bond  of  the 
secretary  of  state  shall  be  deposited  in  the  treasurer's  office  for  safe 
keeping;  and  he  shall  take  the  oath  prescribed  for  public  officers. 

Code,  s.  33.38;  1868-9,  c.  270,  ss.  42.  43. 

288.  Treasurer.  The  treasurer  shall,  after  he  receives  notice  of 
his  election^,  and  before  he  enters  upon  the  execiition  of  the  duties 
of  his  office,  give  a  bond  to  the  state  in  the  sum  of  two  hundred  and 
fifty  thousand  dollars,  Mnth  not  less  than  four  sufficient  sureties,  to 
be  approved  by  the  president  of  the  senate  and  s]5eaker  of  the  hoiise 
of  representatives,  conditioned  that  he  will  faithfully  execute  the 
duties  of  his  office,  which  bond  shall  be  dei^osited  in  the  office  of 
the  secretary  of  state,  and  shall  be  deemed  to  extend  to  the  faithful 
execution  of  the  office  of  treasurer  by  the  person  elected  thereto, 
until  a  new  election  of  treasurer  be  made,  and  a  new  bond  given  by 
the  person  elected. 

Code,  s.  3357;   1868-9,  c.  270,  s.  74. 

289.  Treasurer's  clerks.  The  clerks  in  the  treasurer's  office 
shall  enter  into  good  and  sufficient  bonds,  payable  to  the  state  of 
North  Carolina,  in  the  following  sums :  The  chief  clerk,  ten  thousand 
dollars,  the  other  clerks,  except  the  clerk  charged  with  the  steno- 
graphic dxities,  five  thousand  dollars  each,  conditioned  upon  the 
faithful  jierfornmnce  of  the  duties  of  their  respective  offices,  and 
the  faithful  accounting  for  all  moneys  and  things  of  value,  which 
may  come  into  their  hands  by  virtue  or  color  of  their  respective 
offices.  These  several  bonds  shall  be  in  addition  and  cumulative  to 
the  official  bond  of  the  state  treasurer,  and  shall  not  be  construed 
to  affect  in  any  way  the  liability  of  the  .state  treasurer  upon  his  offi- 
cial bond.  The  bonds  shall  be  approved  by  the  treasurer  and,  if 
given  in  a  surety  company,  the  costs  thereof,  not  to  exceed  twenty 
cents  on  the  one  hundred  dollars  of  penalty,  may  be  paid  by  the 
state. 

290.  Clerk  of  supreme  court,  bond  and  oath  of  office,    ikfore 

undertaking  his  duties,  the  clerk  of  the  supreme  court  shall  enter 

76 


290  BONDS— TY.  State  Officers.  Ch.  9 

into  bond  with  sufficient  surety  payable  to  the  state  of  North  Caro- 
lina, in  the  sum  of  fifteen  thousand  dollars,  conditioned  for  the 
faithful  discharge  of  his  duties  and  for  the  safe  kee^iing  of  all 
records  conuuitted  to  his  custody,  which  bond  shall  be  lodged  with 
the  secretary  of  state;  and  he  shall  also  before  said  justices,  or  one 
of  them,  take  the  oaths  which  are  prescribed  for  clerks  of  the 
superior  court,  and  shall  keep  his  office  in  the  city  of  Kaleigh. 

Code.  s.  958;  R.  C,  c.  33,  s.  1);  1S12,  c.  829,  s.  2;  1818,  c.  963,  s.  5;  1846,  c.  28, 
s.  3;  1799,  c.  520,  s.  2. 

291.  Keeper  of  capitol;  penalty;  when  renewed;  where  de- 
posited. Before  entering  upon  the  duties  of  his  office  the  keeper 
of  the  capitol  shall  execute  a  bond,  with  good  security,  in  the  sum 
of  two  hundred  and  fifty  dollars,  payable  to  the  state  of  North 
Carolina,  and  conditioned  for  the  faithful  discharge  of  his  duties. 
The  bonds  shall  be  deposited  in  the  office  of  secretary  of  state,  and  be 
renewed  every  two  years  under  the  care  of  the  board  of  public  build- 
ings ;  and  shall  be  put  in  suit  whenever  in  their  judgTQcnt  the  condi^ 
tions  thereof,  or  any  of  them,  may  have  been  broken;  and  the  same 
shall  not  be  discharged  until  the  whole  penalty  is  exhausted  in 
damages. 

Code,  s.  2306;  R.  C,  c.  103,  a.  6. 

292.  Public  printer.  Any  person  to  whom  may  be  awarded  the 
public  printing  and  binding  shall  give  bond,  with  approved  surety, 
payable  to  the  state  of  North  Carolina,  in  the  simi  of  five  thousacd 
dollars,  conditioned  for  the  faithful  performance  of  his  duties  and 
undertakings  vmder  his  contract.  The  surety  herein  required  shall 
justify  before  some  person  authorized  to  administer  oaths. 

Code,   s.  3621;    1899,  c.   250,   s.   2. 

293.  Insurance  commissioner.  The  insurance  commissioner  shall, 
before  he  enters  upon  the  execution  of  the  duties  of  his  office,  give  a 
bond  to  the  state  in  the  sum  of  twenty-five  thousand  dollars,  with  suffi- 
cient surety,  to  be  approved  by  the  state  treasurer,  conditioned  for 
the  faithfiil  performance  of  the  duties  of  his  office  during  his  term 
of  office ;  which  bond  shall  be  deemed  to  extend  to  the  faithful  execu- 
tion of  the  office  of  insurance  commissioner  by  the  person  appointed 
thereto  imtil  a  new  appointment  of  insurance  commissioner  be  made 
and  a  new  bond  given  by  the  person  elected. 

1899.  e.  .54.  s.  .55;  1905,  e.  430,  s.  2. 

294.  Paymaster  of  state  troops.  The  paymaster  of  the  state 
troops  shall,  before  he  enters  on  the  diities  of  his  office,  give  bond 
and  sufficient  security,  in  the  sum  of  five  thoiisand  dollars,  payable 


294  BOXDS— TV.  State  Officers.  Ch.  9 

to  the  state,  for  the  faithful  accmintiue  for  all  siims  of  mouey  which 
may  come  into  his  hands  by  virtue  or  color  of  his  office. 

Ck)de,  s.  3192;   R.  C,  c.  70,  s.  30;    1806,  c.   70S,  s.   12. 

VII.     County  Officers. 

295.  Clerk  of  superior  court.  At  the  first  meetiug  of  the  board 
of  commissioners  of  each  county  after  the  election  or  appointment 
of  any  clerk  of  a  superior  court  it  shall  be  the  duty  of  the  clerk  to 
deliver  to  such  commissioners  a  bond  with  sufficient  sureties,  to  be 
approved  by  them,  in  a  penalty  of  not  less  than  ten  thousand  dollars, 
and  not  more  than  fifteen  thousand  dollars,  payalile  to  the  state 
of  Xorth  Carolina,  and  with  a  condition  to  be  void  if  he  shall 
account  for,  and  pay  over,  according  to  law,  alb  moneys  and  effects 
Avhicb  have  come  or  may  come  into  his  hands,  by  virtue  or  color  of 
his  office,  or  under  an  order  or  decree  of  a  judge,  even  though  such 
order  or  decree  be  yoid  for  want  of  jurisdiction  or  other  irregulari- 
ties, and  shall  diligently  preserve  and  take  care  of  all  books,  records, 
papers  and  property,  which  have  come,  or  may  come  into  his  posses- 
sion, by  virtue  or  color  of  his  office,  and  shall  in  all  things  faithfully 
perform  the  dvities  of  his  office  as  they  are,  or  thereafter  shall  be 
prescribed  by  law:  Provided,  that  the  bond  of  the  clerk  of  the 
superior  court  of  Pamlico  county  may  be  fixed  at  an  amount  not 
less  than  five  thousand  dollars,  in  the  discretion  of  the  county  com- 
missioners. Each  clerk  of  the  superior  court  shall  furnish  the  cliair- 
msn  of  the  board  of  county  commissioners  of  his  county  with  all 
notifications  furnished  him  in  compliance  with  section  four  thousand 
eight  hundred  and  three  of  this  Kevisal  concerning  any  company  in 
Avhich  any  officer  of  the  county  is  bonded. 

Code.  s.  72;  1899,  e.  54,  s.  52;  1903,  c.  747;  1S89.  c.  7;  1891.  c.  385;  1901,  c. 
32;  C.  C.  P.,  s.  137;  1895,  cc.  270,  271. 

296.  Clerk's  bond,  how  approved;  where  deposited.  The  ap- 
proval of  said  bond  by  the  board  of  commissioners,  or  a  majority  of 
tlieni,  shall  be  recorded  by  their  clerk.  The  said  l)uud  shall  be  acknowl- 
edged by  the  parties  thereto,  or  proved  by  a  subscribing  witness, 
before  the  clerk  of  said  board  of  conunissioners,  or  their  presiding 
officer,  registered  in  the  register's  office  in  a  separate  book  to  be 
kept  by  him  for  the  registration  of  official  bonds;  and  the  original, 
with  the  approval  thereof  endorsed,  deposited  with  the  register  for 
safe  keeping.  The  like  remedies  shall  be  had  upon  said  bond  as 
are  or  may  be  given  by  law  on  official  bonds. 

Code,  9.  73;  C.  C.  P.,  s.  138. 

297.  County  treasurer;   penalty;  when  renewed.   The  county 

treasurer,  before  entering  upon   the  duties  of  his  office,  shall  give 


297  BOISTDS— TY/.   County  Officers.  Ch.  9 

bond .  with  three  or  more  suiRcient  sureties,  to  be  approved  by  the 
board  of  commissioners,  payable  to  the  state,  conditioned  that  he 
will  faithfully  execute  the  duties  of  his  office,  and  pay  according  to 
law,  and  on  the  warrant  of  the  chairman  of  the  board  of  commis- 
sioners, all  moneys  which  shall  come  into  his  hands  as  treasurer, 
and  render  a  just  and  true  account  thereof  to  the  board  when  required 
by  law,  or  by  the  board  of  eommissionerfe.  The  penalty  of  his  bond 
shall  be  a  sum  not  exceeding  the  amount  of  the  county  and  local 
taxes  assessed  during  the  previous  year,  and  the  board  of  commis- 
sioners at  any  time,  by  an  order,  may  require  him  to  renew,  increase 
or  strengthen  his  bond.  A  failure  to  do  so  within  ten  days  after  the 
service  of  such  an  order  shall  vacate  his  office  and  the  board  shall 
appoint  a  successor :  Provided,  the  board  of  commissioners  may  fix 
the  bond  of  the  treasurer  of  Forsyth  county  at  such  sum  as  they  may 
deem  best,  not  less  than  twenty  thousand  dollars,  and  may  increase  it 
at  any  time ;  and  in  Craven  county  the  bond  of  the  treasurer  shall 
be  equal  to  the  county  funds  during  the  preceding  year,  but  not  to 
exceed  forty  thousand  dollars. 

Code,  s.  766;  1868-9,  e.  157,  s.  4;  1895,  c.  270,  s.  2;  1899,  e.  132;  1899,  e.  207, 
s.  4;  1903,  e.  12,  s.  2;  1901,  c.  536;  1899,  c.  54,  s.  52. 

298.  Sheriff;  number;  penalty;  form.   The  sheriff  shall  execute' 

three  several  bonds,  payable  to  the  state  of  North  Carolina,  as  fol- 
lows: One  conditioned  for  the  collection  and  settlement  of  state 
taxes  according  to  law,  a  simi  not  exceeding  the  amount  of  the  taxes 
assessed  upon  the  county  for  state  purposes  in  the  previous  year; 
one  conditioned  for  the  collection  and  settlement  of  county  and  other 
local  taxes  according  to  law^  a  sum  not  exceeding  the  amount  of  such 
county  and  other  local  taxes  for  the  previous  year.  Every  sheriff  shall 
deposit  the  county  and  other  local  taxes,  by  him  collected,  with  the 
county  treasurer,  if  there  be  a  county  treasurer,  as  often  as  he  shall 
collect  or  have  in  his  possession  at  any  one  time  of  such  county  or 
local  taxes,  a  smn  equal  to  five  hundred  dollars.  The  amount  of 
the  third  bond,  for  the  due  execution  and  return  of  process,  pay- 
ment of  fees  and  moneys  collected,  and  the  faithful  execution  of 
his  office  as  sheriff',  shall  be  not  more  than  five  thousand  dollars,  in 
the  discretion  of  the  board  of  county  connnissioners,  and  shall  be 
conditioned  as  follows: 

"The  condition  of  the  above  obligation  is  siach,  that  whereas  the 

above   bounden is   elected   and   appointed   sheriff   of 

county ;  if,  therefore,  he  shall  well  and  truly  execute 

and  due  return  make  of  all  process  and  precepts,  to  him  directed,  and 
pay  and  satisfy  all  fees  and  siuns  of  money,  by  him  received  or 
levied  by  virtue  of  any  process,  into  the  proper  office  into  which  the 
same,  by  the  tenor  thereof,  ought  to  be  paid,  or  to  the  person  or 


298  KOXDS— TV/.   Couniii  Officers.  Ch.   9 

persons  to  whom  the  same  shall  be  due,  his,  her  or  their  executors, 
adininistrators,  attorneys,  or  agents;  and  in  all  other  things  well, 
truly  and  faithfully  execute  the  said  office  of  sheriff,  during  his  con- 
tinuance therein,  then  the  above  obligation  to  be  void ;  otherwise 
to  remain  in  full  force  and  effect." 

Provided,  the  bonds  of  the  sheriff  in  Craven  cimnty  shall  \>v  as  fol- 
lows :  One  conditioned  for  tlie  collection,  payment  and  settlement  of 
the  county,  poor,  school  and  special  taxes  in  a  sum  double  the  amount 
of  said  taxes,  for  the  previous  year;  one  for  the  collection,  payment 
and  settlement  of  the  public  taxes  as  required  by  law  in  a  sum  double 
the  amount  of  said  taxes  for  the  previous  year :  Provided,  that  the  ag- 
gregate amount  of  said  two  bonds  shall  not  be  required  to  exceed  the 
sum  of  forty  thousand  dollars.  And  the  amount  of  the  third  bond  for 
the  due  execution  and  return  of  process,  pa\mient  of  fees  and  moneys 
collected  and  the  faithful  execution  of  his  office  as  sheriff  shall  not  be 
less  than  five  thousand  dollars  and  no  more  than  fifteen  thousand 
dollars  in  the  discretion  of  the  board  of  county  commissioners;  and 
whenever  and  as  often  as  the  sheriff  shall  have  collected  of  the 
county,  school  or  other  local  and  special  taxes  a  sum  equal  in  amount 
to  three  hundred  dollars  he  shall  inunediately  pay  the  same  to  the 
treasurer  of  the  county. 

Code,  s.  2073;  R.  C,  e.  lOo,  s.  1.3;  1777,  c.  118.  s.  1;  1823,  c.  1223;  1879,  c.  109; 
1S95,  c.  270,  ss.  1,  2;  1899,  c.  207,  s.  2;  1903,  c.  12;  1899,  c.  54,  s.  52. 

299.  Coroner;  penalty;  oath   of  office.    Every  conmov  shall 

execute  an  undertaking  for  the  faithful  discharge  of  the  duties  of 
his  office  with  good  surety,  in  the  sum  of  two  thousand  dollars,  pay- 
able to  the  state  of  North  Carolina  and  a])proved  by  the  board  of 
county  commissioners. 

Code,  s.  661;  R.  C,  c.  25,  s.  2;  1791,  c.  342,  ss.  1,  2;  1820.  c.  1047.  .ss.  1,  2; 
1899,  c.  54,  s.  52. 

300.  Coroners'  bonds  registered.    All  official  bonds  of  coroners 

shall  be  duly  proved,  certified,  registered  and  filed  as  sheriffs'  bonds 
are  required  to  be;  and  certified  copies  of  the  same,  from  the  regis- 
ter's office,  shall  be  received  and  read  in  evidence  in  the  like  cases, 
and  in  like  manner  as  sttch  copies  of  sheriffs'  bonds  arc  now  allowed 
to  be  read  in  evidence. 

Code,  s.  002;    18G0-1,  c.   18. 

301.  Register  of  deeds.  Every  register  of  .Iccds  sliidl  give  l)ond 
with  sufficient  surety,  to  be  approved  by  the  board  of  county  com- 
missioners, in  a  sum  not  exceeding  ten  thousand  dollars,  payable 
to  the  state,  and  conditioned  for  the  safe  keeping  of  the  books  and 
records,  and  for  the  faithful  discharge  of  the  duties  of  his  office, 
and  .shall  renew  his  bond  annually  on  the  first  Monday  in  December. 

Code,  s.  3648;   1808,  c.  35,  s.  3;   1876-7,  c.  276.  s.  5;   1899,  c'.  54,  s.  52. 


302  BONDS— T7Z.   Coimtij  Officers.  Cli.   9 

302.  Constable,  where  registered;  fees,  how  paid.    The  board 

of  coniinissioners  of  each  county  shall  require  of  each  constable, 
elected  or  appointed  for  a  township,  on  entering  upon  the  duties  of 
his  office,  to  give  a  bond  with  good  surety,  payable  to  the  state  of 
North  Carolina,  in  a  sum  not  exceeding  one  thousand  dollars,  con- 
ditioned as  well  for  the  faithful  discharge  of  his  duty  as  constable, 
as  for  his  diligently  endeavoring  to  collect  all  claims  put  into  his 
hands  for  collection,  and  faithfully  paying  over  all  sums  thereon 
received,  either  with  or  without  suit,  unto  the  persons  to  whom  the 
same  may  be  due.  Said  bond  shall  be  duly  proved  and  registered, 
and  after  registration,  filed  in  the  office  of  the  register  of  deeds ;  and 
certified  copies  of  the  same  from  the  register's  office  shall  be  received 
and  read  in  evidence  in  all  actions  and  proceedings  where  the  origi- 
nal might  be.  The  fees  for  proving  and  registering  the  bond  of 
constable  shall  be  paid  by  the  constable.  In  Stanly  county  the 
fees  shall  be  paid  by  the  county. 

Code,  s.  647;  R.  C,  c.  24,  s.  7;  1818,  c.  980;  1820,  c.  1045,  s.  2;  1833,  c.  17; 
1809-70,  c.  185;  1899,  e.  54,  s.  52;  1891,  c.  229. 

303.  County  surveyor.  The  county  surveyor  of  each  county  shall 
enter  into  bond  in  the  sum  of  one  thousand  dollars  payable  to  the 
state  of  North  Carolina,  with  sufficient  surety  for  the  faithful  dis- 
charge of  the  duties  of  his  office. 

Code,  s.  2762;   R.  C,  c.  42,  s.  5;   1777,  c.  114,  s.  13. 

304.  Entry-taker.  Every  entry-taker  shall  enter  into  bond  in 
the  sum  of  five  hundred  dollars,  payable  to  the  state,  with  sufficient 
security  to  be  approved  by  the  county  commissioners,  for  the  faith- 
ful discharge  of  the  duties  of  his  office. 

Code,  s.  2758;    1868-0,  c.   173.   s.  3. 

305.  Wrecic  commissioner.  Every  person  ai)]iointed  a  wreck 
commissioner  shall  enter  into  a  bond,  with  good  and  sufficient 
surety,  in  the  sum  of  two  thousand  dollars,  payable  to  the  state  of 
North  Carolina  and  conditioned  for  the  faithful  performance  of 
his  duties,  which  shall  be  approved  by  the  board  of  county  commis- 
sioners and  deposited  in  the  office  of  the  clerk  of  the  superior  court. 

1899,  c.  79,  s.  10. 

306.  standard-keeper.  The  person  elected  as  standard-keeiier 
of  any  county  shall  give  bond,  with  good  and  sufficient  surety,  pay- 
able to  the  state  of  North  Carolina,  in  the  simi  of  two  hundred  dol- 
lars, conditioned  for  the  safe  keeping  of  weights  and  measures, 
stamps  and  brands  of  said  coiinty,  and  for  the  faithful  performance 
of  the  duties  of  his  office. 

Code,  s.  3840;  R.  C.  c.  117,  s.  4;  1741,  c.  32,  s.  3;  1810,  c.  901,  s.  2;  1827, 
c.  22,  s.  3;   1883,  c.  393. 

■  81 


307  BOXDS— T7//.  Pilots.  Ch.  9 

VIII.     Pilots. 

307.  Pilot;  may  be  enlarged;  where  filed.   Every  person,  before 

he  obtains  a  eonmiission  or  a  branch  to  be  a  pilot,  shall  give  bond 
with  two  sufficient  sureties  payable  to  the  state  of  North  Carolina, 
in  the  snni  of  five  hundred  dollars,  with  condition  for  the  due  and 
faithful  discharge  of  his  duties,  and  the  duties  of  his  apprentices; 
and  the  body  appointing  such  pilot  may,  from  to  time,  and  as  often 
as  they  may  deem  it  necessary,  enlarge  the  penalty  of  the  bond,  or 
require  new  and  additional  bonds  to  be  given ;  and  every  bond  taken 
of  a  pilot  shall  be  filed  with,  and  preserved  by,  the  said  body  appoint- 
ing such  pilot  in  trust  for  every  person  that  shall  be  injured  by  the 
neglect  or  misconduct  of  such  pilot,  or  his  apprentices ;  vpho  may  sev- 
erally bring  suit  thereon  for  the  damage  by  each  one  sustained. 
Code,  s.  3487;  R.  C,  c.  85,  s.  6;  1784,  c.  207,  s.  3. 

IX.     Duty  of  County  Commissioners. 

308.  County  officials'  bonds;  term  of;  examined  annually;  in- 
creased when.  Every  clerk,  treasurer,  sherifl',  coroner,  register  of 
deeds,  surveyor,  and  every  other  officer  of  the  several  counties  who  is 
required  by  law  to  give  a  bond  for  the  faithful  performance  of  the 
duties  of  his  office,  shall  give  a  bond  for  the  term  of  the  office  to  whicli 
.such  officers  are  chosen,  respectively.  The  bonds  shall  be  carefully 
examined  on  the  first  Monday  in  December  of  every  year,  and  if  it 
shall  appear  that  the  security  has  been  impaired,  or  for  any  cause 
become  insufficient  to  cover  the  amount  of  money  or  property  or  to 
secure  the  faithful  performance  of  the  duties  of  the  office,  then  the 
bond  shall  be  renewed  or  strengthened,  the  insufficient  security  in- 
creased within  the  limits  herein  prescribed,  and  the  impaired  shall 
be  made  good ;  but  no  renewal,  or  strengthening,  or  additional  security 
shall  increase  the  penalty  of  said  bond  beyond  the  limits  herein  pre- 
scribed for  the  term  of  office. 

Code,  s.  1874;  1869-70,  c.  1C9;  1870-7,  c.  275,  s.  5;  1890.  c.  54,  s.  .54;  1895,  c. 
207,  s.  4. 

309.  Vacancy  declared  on  failure  to  renew  bond.   Upon  the 

failure  of  any  such  officer  to  make  such  renewal  of  liis  bond,  it 
is  the  dut}'  of  the  board  of  commissioners,  by  an  order  to  be  en- 
tered of  record,  to  declare  his  office  vacant,  and  to  ]iroceed  forth- 
with to  appoint  a  successor,  if  the  power  of  filling  the  vacancy 
in  the  particular  case  be  vested  in  the  board  of  commissioners;  but 
if  otherwise,  the  said  board  shall  immediately  inform  the  proper 
person  having  the  power  of  appointment  of  the  fact  of  such  vacancy^ 
Code,  9.  1875;   1809-70,  c.  169,  s.  2. 


310         BONDS — IX.  Duty  of  County  Commissioners.         Ch.   9 

310.  Justification  of  surety  on  official.  Every  surety  on  an  offi- 
cial bond  required  by  law  to  be  taken  or  renewed  and  approved  by 
the  board  of  commissioners,  shall  take  and  subscribe  an  oath  before 
the  chairman  of  the  board  or  some  person  authorized  by  law  to 
administer  an  oath,  that  he  is  worth  a  certain  sum  (which  shall  be 
not  less  than  one  thousand  dollars)  over  and  above  all  his  debts  and 
liabilities  and  his  homestead  and  personal  property  exemptions,  and 
the  sum  thus  sworn  to  shall  in  no  case  be  less  in  the  aggregate  than 
the  penalty  of  the  bond.  But  nothing  herein  shall  be  construed  to 
abridge  the  power  of  the  said  board  of  commissioners  to  require  the 

•personal  presence  of  any  such  surety  before  the  board  when  the  bond 
is  offered,  or  at  such  subsequent  time  as  the  board  may  fix  for 
examination  as  to  his  financial  condition  or  other  qualifications  as 
surety. 

Code,  s.  1876;  1869-70,  e.  169,  s.  3;  1879,  c.  207;  1889,  c.  7;  1891,  e.  385; 
1901,  c.  32. 

311.  County  commissioners  to  approve  bonds;  custody;  how 

acknowledged.  The  approval  of  all  official  bonds  taken  or  renewed 
by  the  board  of  commissioners  shall  be  recorded  by  their  clerk. 
Every  such  bond  shall  be  acknowledged  by  the  parties  thereto  or 
proved  by  a  subscribing  witness,  before  the  chairman  of  the  board 
of  commissioners,  or  before  the  clerk  of  the  superior  court,  regis- 
tered in  the  register's  office  in  a  separate  book  to  be  kept  for  the  regis- 
tration of  official  bonds,  and  the  original  bond,  with  the  approval  of 
the  commissioners  endorsed  thereon  and  certified  by  their  chairman, 
shall  be  deposited  with  the  clerk  of  the  superior  court,  except  the 
bond  of  said  clerk,  which  shall  be  deposited  with  the  register  of 
deeds  for  safe  keeping. 

Code,  s.  1877;   1809-70,  c.  169,  s.  4;   1879,  c.  207,  s.  2. 

312.  Clerk  of  board  to  record  yeas  and  nays  on  approval; 

penalty  for  failure.  It  is  the  duty  of  the  clerk  of  the  board  of  com- 
missioners to  record  in  the  proceedings  of  the  board  the  names  of 
those  commissioners  who  are  present  at  the  time  of  the  approval  of 
any  official  bond,  and  who  shall  vote  for  such  approval,  and  every 
clerk  neglecting  to  make  such  record  beside  other  punishment  shall 
forfeit  his  office.  Any  commissioner  may  cause  his  written  dissent 
to  be  entered  on  the  records  of  the  board. 

Code,  ss.  1878,  1881;  1869-70,  c.  169,  ss.  5,  8;  R.  C.  c.  78,  s.  7;  1790,  c.  327; 
1809,  c.  777. 

313.  Commissioner  liable  as  surety,  when.   Every  commissioner 

who  approves  an  official  bond,  which  he  knows  to  be,  or  which  by  rea- 
sonable diligence  he  could  have  discovered  to  have  been,  insufficient 
in  the  j^enal  sum,  or  in  the  security  thereof,  shall  be  liable  as  if  he 


314  BONDS— /A'.  Duty  of  Couitli/   Commissioners.  Ch.   9 

were  a  surety  thereto,  and  may  be  sued  acci)rdiiii;ly  by  any  person 
having  a  cause  of  action  on  said  bond. 

Code,   s.   1879;    1869-70,   c.   169,   s.   6. 

314.  Record  of  board  conclusive  evidence  of  facts  stated 

therein  on  prosecution.  In  all  actions  under  the  preceding  section, 
a  copy  of  the  jiroceedings  of  the  board  of  commissioners  in  the 
particular  case,  certified  by  their  clerk  under  his  hand  and  seal  of 
the  county,  shall  be  conclusive  evidence  of  the  facts  in  such  record 
alleged  and  set  forth. 

Code,  s.  1881;  1869-70,  c.  169,  s.  8. 

315.  Commissioners  can   not  be  sureties  where  they  may 

approve.   Xo  member  of  the  board  of  commissioners,  or  any  other 
person  authorized  to  take  olficial  bonds,  shall  sign  as  surety  on  any- 
official  bond,  \ipon  the  sufficiency  of  which  the  board  of  which  he  is 
a  member  may  have  to  pass. 
Code,  s.  1887;  1874-5,  c.  120,  s.  3. 

X.     Duty  Supeeiok  Court  Judge. 

316.  Official  bond  insufficient,  new  one  required;  office  vacated 

for  failure;  successor  appointed.  Whenever  oath  shall  be  made 
before  any  judge  of  the  superior  court  by  five  respectable  citizens 
of  any  county  within  his  district  that  after  diligent  inquiry  made 
they  verily  believe  that  the  bond  of  any  officer  of  such  county,  which 
has  been  accepted  by  the  board  of  commissioners,  is  insufficient  either 
in  the  amount  of  the  penalty  or  in  the  ability  of  the  sureties,  it  shall 
be  the  duty  of  such  judge  to  cause  a  notice  to  be  served  upon  such 
officer  requiring  him,  to  appear  at  some  stated  time  and  ]ilacc  and 
justify  his  bond  by  evidence  other  than  that  of  himself  or  his  svire- 
ties.  And  if  this  evidence  so  produced  shall  fail  to  satisfy  the 
judge  that  the  bond  is  sufficient,  both  in  amount  and  the  ability  of 
the  sureties,  he  shall  give  time  to  the  officer,  not  exceeding  twenty 
days,  to  give  another  bond,  the  judge  fixing  the  amount  of  the  new 
bond,  when  there  is  a  deficiency  in  that  particular.  And  upon 
failure  to  give  a  good  bond  to  the  satisfaction  of  the  judge  within 
the  twenty  days,  he  shall  declare  the  office  vacant,  and  if  the  appoint- 
ment be  with  himself,  he  shall  inunediately  proceed  to  fill  the 
vacancy ;  and  if  not,  he  shall  notify  the  persons  having  the  appoint- 
ing power  that  they  may  ])rocecd  as  aforesaid. 
Code,  9.  1885;   1874-5,  c.  120. 

317.  Appointee  to  give  bond;  official  bonds,  liabilities.  Tlie  i>cr- 

son  so  appointed  sliall  give  bond  before  the  judge,  and  the  bond  so 


317  BONDS — -Y.  Duty  Superior  Court  Judge.  Ch.   it 

given  shall  in  all  respects  be  subject  to  the  requirements  of  the  law 
in  relation  to  official  bonds ;  and  all  official  bonds  shall  be  considered 
debts  and  liabilities. 

Code,  s.   1886;    1S74-5,  c.   120,  s.  2. 

318.  Judge  to  file  statement  of  proceedings  witii  commission- 
ers. Whenever  a  vacancy  shall  be  declared  by  the  judge,  he  shall 
file  a  written  statement  of  all  his  proceedings  with  the  clerk  of  the 
board  of  commissioners,  to  be  recorded  by  him. 

Code,  s.  1887;  1874-5,  c.  120,  s.  .3. 

XI.      Fiduciaries. 

319.  Executors,  administrators  or  collectors;  penalty;  con- 
dition. Every  executor  from  whom  a  bond  is  required  by  law,  and 
every  administrator  and  collector,  before  letters  are  issued,  must 
give  a  bond  payable  to  the  state,  with  two  or  more  sufficient  sureties, 
to  be  justified  before  and  approved  by  the  clerk,  conditioned  that 
such  executor,  administrator  or  collector  shall  faithfully  execute  the 
trust  reposed  in  him  and  obey  all  lawful  orders  of  the  clerk  or  other 
court  touching  the  administration  of  the  estate  committed  to  him. 
The  penalty  of  such  bond  must  be  at  least  double  the  value  of  all 
the  personal  property  of  the  deceased ;  such  value  to  be  ascertained 
by  the  clerk  by  examination  on  oath  of  the  applicant  or  of  some 
other  competent  person :  Provided,  that  if  the  personal  property  of 
any  decedent  shall  be  insuflicient  to  pay  his  debts  and  the  charges 
of  administration,  and  it  shall  become  necessary  for  his  executor  or 
administrator  to  apply  for  the  sale  of  real  estate  for  assets,  and  the 
bond  previously  given  is  not  double  the  value  of  both  the  real  and 
personal  estate  of  the  deceased,  such  executor  (if  bond  is  required 
of  him  by  law)  or  administrator  shall,  before  or  at  the  time  of 
filing  his  petition  for  such  sale,  give  another  bond  payable  and 
conditioned  as  the  one  above  prescribed  and  with  like  security,  in 
double  the  value  of  the  real  estate  for  the  sale  of  which  application 
shall  be  made. 

Code,  s.  1388;   1870-1,  c.  93:  C.  C.  P.,  s.  468. 
Note.     See  Administration,   s.   29. 

320.  Public  administrator.  The  public  administrator  shall  enter 
into  bond,  with  three  or  more  sureties,  approved  by  the  clerk,  in 
the  penal  sum  of  eight  thousand  dollars,  payable  to  the  state  of 
North  Carolina,  conditioned  faithfully  to  perform  the  duties  of  his 
office,  and  obey  all  lawful  orders  of  the  clerk  or  other  court  touching 
the  administration  of  the  several  estates  that  may  come  into  his 
hands,  and  such  bond  shall  be  renewed  cveiw  two  years.     When- 


320  BOXDS— Z/.  Fiduciaries.  Ch.  9 

ever  the  aggregate  value  of  the  real  and  personal  property  belong- 
ing to  the  several  estates  in  the  hands  of  the  public  administra- 
tor shall  exceed  the  one-half  of  his  bond,  the  clerk  shall  require 
him  to  enlarge  his  bond  in  amount  so  as  to  cover,  at  all  times,  at 
least  the  double  of  such  aggregate. 

Code,  ss.  1390,  1391,  1392;   18G8-9,  c.  113,  ss.  2,  3,  4. 

Note.     See  Administration,  s.   19. 

321.  Public  guardian.  The  public  guardian  shall  enter  into  bond 
with  three  or  more  sureties,  approved  by  the  clerk  of  the  superior 
court,  in  the  penal  sum  of  six  thousand  dollars,  payable  to  the  state 
of  North  Carolina,  conditioned  faithfully  to  perform  the  duties 
of  his  office  and  obey  all  lawful  orders  of  the  superior  or  other 
courts  touching  said  guardianship  of  all  wards,  money  or  estate  that 
may  come  into  his  hands. 

Code,  s.  15.57;   1874-5,  c.  221,  s.  2. 

322.  Public  guardian's  bond  enlarged.   Whenever  the  aggregate 

value  of  the  real  and  personal  estate  belonging  to  his  several  wards 
shall  exceed  one-half  the  bond  herein  required  the  clerk  of  the 
superior  court  shall  require  him  to  enlarge  his  bond  in  amount  so 
as  to  cover  at  least  double  the  aggregate  amount  under  his  control 
as  guardian. 

Code,  s.  1558;   1874-5,  c.  221,  s.  3. 

323.  Guardians  to  give  bond;  condition.   Every  guardian  of  an 

estate,  before  letters  of  appointment  are  issued  to  him,  must  give 
a  bond  jiayable  to  the  state,  with  two  or  more  sufficient  sureties,  to 
be  acknowledged  before  and  approved  by  the  clerk  of  the  superior 
court,  and  to  be  jointly  and  severally  bound.  The  penalty  in  such 
bond  must  be  double,  at  least,  the  value  of  all  personal  property, 
and  the  rents  and  profits  issuing  from  the  real  estate  of  the  infant; 
which  value  is  to  be  ascertained  by  the  clerk  of  the  superior  court 
by  the  examination,  on  oath,  of  the  applicant  for  guardianship,  or 
of  any  other  person.  The  bond  must  be  conditioned  that  such 
guardian  shall  faithfully  execute  the  trust  reposed  in  him  as  such, 
and  obey  all  lawful  orders  of  the  clerk  or  judge,  touching  the 
guardianship  of  the  estate  committed  to  him:  Provided,  if  on  appli- 
cation by  the  guardian  by  petition  the  court  or  judge  shall  decree 
a  sale  for  any  of  the  causes  set  forth  in  section  one  thousand  seven 
hundred  and  ninety-eight  of  the  property  of  sucli  infant,  idiot,  luna- 
tic or  insane  person,  before  such  sale  be  confirmed,  the  guardian  shall 
be  required  to  file  a  bond  as  noAV  required  in  double  the  amount  of 
the  real  property  so  sold. 

Code,  s.  1574;  R.  C,  e.  .54,  s.  5;  1762,  c.  G9,  s.  7;  1825,  c.  1285,  s.  2;  1833,  c.  17; 
1868-9,  c.  201,  s.  11;  1874-5,  c.  214. 


324  BOXDS— A'/.  Fiduciaries.  Ch.   9 

324.  Guardian  to  renew  bond  every  three  years.  Every  guar- 
dian shall  renew  his  bond  before  the  clerk  of  the  superior  court 
every  three  years  during  the  continuance  of  the  guardianship. 

Code,  s.  1581. 


CHAPTEE  10. 
BOUNDARIES. 

(Sections  .•!25 — .32(3.) 

325.  May  be  established  by  special  proceeding.  The  owner  of 

land,  any  of  whose  boundary  lines  are  in  dispute,  may  establish 
any  of  such  lines  by  special  proceedings  in  the  superior  court  of  the 
county  in  which  the  land  or  any  part  thereof  is  situated. 

1S93,   c.   22. 

326.  Procedure  for  establishing.  The  owner  shall  file  his  peti- 
tion under  oath  stating  therein  facts  sufficient  to  constitute  the 
location  of  such  line  as  claimed  by  him  and  making  defend- 
ants all  adjoining  owners  whose  interest  may  be  affected  by  the 
location  of  said  line.  The  clerk  shall  thereupon  issue  summons  to 
the  defendants  as  in  other  cases  of  special  proceedings.  If  the 
defendants  fail  to  answer,  judgnnent  shall  be  given  establishing  the 
line  according  to  petition.  If  the  answer  deny  the  location  set  out 
in  the  petition,  the  clerk  shall  issue  an  order  to  the  county  surveyor 
or,  if  cause  shown,  to  any  competent  surveyor  to  survey  said  line 
or  lines  according  to  the  contention  of  both  parties,  and  make  report 
of  the  same  with  a  map  at  a  time  to  be  fixed  by  the  clerk,  not  more 
than  thirty  days  from  date  of  order;  to  which  time  the  cause  shall 
be  continued.  The  catise  shall  then  be  heard  by  the  clerk  upon 
the  location  of  said  line  or  lines  and  judgment  given  determining 
the  location  thereof:  Provided,  that  either  party  may  within  ten 
days  after  such  determination  by  the  clerk  serve  notice  of  appeal 
from  the  ruling  of  the  clerk  determining  the  said  location.  When 
notice  of  appeal  is  served  it  shall  be  the  duty  of  the  clerk  to  transmit 
the  issues  raised  before  him  to  the  next  term  of  the  superior  court 
of  the  county  for  trial  by  a  jury,  when  the  qiaestion  shall  be  heard 
de  novo.  When  final  judgment  is  given  in  this  proceeding  the 
court  shall  issue  an  order  to  the  said  surveyor  to  run  and  mark  said 
line  or  lines  as  determined  in  the  judgment.     The  surveyor  shall 


326  BOUXDAKIES.  Ch.  10 

make  report  including  a  map  of  the  line  as  determined,  which 
shall  be  filed  with  the  judgment  roll  in  the  cause  and  entered  with 
tlie  judgment  on  the  special  proceedings  docket.  The  procedure 
under  this  chapter,  the  jurisdiction  of  the  court,  and  the  right  of 
appeal  shall,  in  all  respects,  be  the  same  as  in  special  proceedings 
except  as  herein  modified.  The  occupation  of  land  shall  constitute 
sufficient  ownership  for  the  purposes  of  this  chapter. 

1S93,  e.  22;    1903,  c.  21. 


XoTK.     For  iulditional  remedv  when  leconls  are  burned,  see  s.  328. 


CHAPTER  11. 
BURNT  AND  LOST  RECORDS. 

(Sections  327—345.) 

327.  Certified  copies  of  destroyed  records  received  in  evidence. 

Whenever  the  office  of  any  registry-  shall  have  been,  or  may  be 
destroyed  by  fire  or  other  accident,  and  the  records  and  other  papers 
thereof  be  burnt  or  destroyed,  the  copies  of  all  such  proceedings, 
instruments  and  papers  as  are  of  record  or  registry,  certified  by 
the  proper  officer,  though  without  the  seal  of  office,  shall  be  received 
in  evidence  whenever  the  original  or  duly  certified  exemplifications 
would  be.  Such  copies,  when  the  court  shall  be  satisfied  of  their 
genuineness,  may  be  ordered  to  be  recorded  or  registered. 
Code,  s.  55. 

328.  Original  papers  may  be  again  recorded:  survey  may  be 

made  by  petition  before  clerk.  All  original  papers,  once  admitted 
to  record  or  registry,  whereof  the  record  or  registry  is  destroyed, 
may,  on  motion,  be  again  recorded  or  registered,  on  such  proof  as 
the  court  shall  require.  Whenever  any  conveyance  of  real  estate, 
or  any  right  or  interest  tliercin,  shall  have  been  lost,  the  registry 
thereof  being  also  destroyed,  any  person  claiming  under  the  same 
may  cause  the  boundaries  thereof  to  be  established  in  the  manner 
])rovidc(l  for  in  cha])t('r  ten,  (ir  lie  may  ])r(iceed  in  the  fullow- 
ing  manner  to  establisli  both  the  boundaries  and  nature  of  his 
estate:  lie  shall  file  his  petition  before  the  clerk  of  the  superior 
court,  setting,  forth  the  location  and  boundaries  of  his  land,  whose 


.■!2S  BURNT  AXD  LOST  RECORDS.  Cb.   11 

land  it  adjoins,  and  the  estate  claimed  therein,  and  praying  to  have 
his  own  boundaries  established,  and  the  nature  of  his  estate  declared. 
All  persons  claiming  any  estate  in  the  premises,  and  those  whose 
lands  adjoin,  shall  be  notified  of  the  proceedings,  and  thereupon, 
unless  they  or  some  of  them  shall,  by  answer  on  oath,  deny  the  truth 
of  the  matters  alleged,  or  some  of  them,  the  clerk  of  the  superior 
court  shall  order  a  surveyor  to  run  and  designate  the  boundaries 
of  the  petitioner's  land,  return  his  siirvey,  with  the  plot  thereof, 
to  court,  which,  when  confirmed,  shall,  with  the  declaration  of  the 
court  as  to  the  nature  of  the  estate  of  the  petitioner,  be  registered 
and  have,  as  to  the  persons  notified,  the  effect  of  a  deed  for 
the  same,  executed  by  the  person  possessed  of  the  same,  next 
before  the  petitioner:  Provided,  that  in  all  cases  wherein  the 
process  of  surveying  shall  be  disputed,  and  the  surveyor  shall 
be  forbidden  to  proceed  by  any  person  interested,  the  same  pro- 
ceedings shall  be  had  as  under  chapter  ten.  The  petitioner  shall 
set  forth  the  whole  substance  of  the  conveyance  as  truly  and 
specifically  as  he  can,  and  if  any  of  the  persons  notified  shall, 
by  answer,  deny  the  truth  thereof,  the  clerk  of  the  superior  court 
shall  transfer  the  issues  of  fact  to  the  superior  court  at  term,  to 
be  tried  as  other  issues  of  fact  are  required  by  law  to  be  tried,  and 
on  their  verdict  and  the  jDleadings,  the  judge  shall  adjiidge  the  rights 
of  the  parties,  and  declare  the  contents  of  the  deed,  if  any  deed  be 
found  by  the  jury,  and  allow  the  registration  of  such  judgment  and 
declaration,  which  shall  have  the  force  and  effect  of  a  deed. 

Code,   s.   56. 

329.   Copies  of  lost  wills  may  be  admitted  to  probate.   In  all 

counties  where  the  original  wills  on  file  iu  the  office  of  the  clerk  of 
superior  court,  and  will-books  containing  copies,  have  been  or  may 
be  lost  or  destroyed,  if  the  executor  or  any  other  person  has  pre- 
served a  copy  of  a  will  (the  original  being  so  lost  or  destroyed) 
with  a  certificate  appended,  signed  by  a  clerk'  of  the  court  in  whose 
office  the  will  was,  or  is  required  to  be  filed,  and  stating  that  said 
copy  is  a  correct  one,  such  copy  may  be  admitted  to  probate,  imder 
the  same  rules  and  in  the  same  manner  as  now  prescribed  by  law 
for  proving  wills ;  and  the  proceedings  in  such  cases  shall  be  the 
same  as  though  such  copy  was  the  original  offered  for  the  first  time 
for  probate,  except  tliat  the  clerk  who  signed  such  certificate  shall, 
on  oathj  acknowledge  his  signature,  or  in  case  it  shall  appear  that 
said  clei-k  has  died  or  left  the  state,  then  his  signature  shall  be 
proven  by  a  competent  witness ;  and  the  witness  or  witnesses  to  the 
original,  who  may  be  examined,  shall  be  required  to  swear  that  he 
or  they  signed  in  the  presence  of  the  testator  and  by  his  direction  a 
paper  writing  purporting  to  be  his  last  will  and  testament. 
Code,  s.  57. 


330  BUEXT  AATD  LOST  EECOEDS.  Ch.  11 

330.  Certified  copy  of  will  evidence;  letters  testamentary 

granted.  In  any  action  or  proceeding  at  law',  wherein  it  may  become 
necessary  to  introduce  such  will  to  establish  title,  or  for  any  other 
purpose,  a  copy  of  the  will  and  of  the  record  of  the  probate,  with  a 
certificate  signed  by  the  clerk  of  the  superior  court  for  the  county 
where  the  will  may  be  recorded,  stating  that  said  record  and  copy 
are  full  and  correct,  shall  be  admitted  as  competent  evidence;  and 
when  a  copy  of  a  will  shall  have  been  admitted  to  probate,  the  clerk 
of  the  superior  court  shall  thereupon  issue  letters  testamentary. 
Code,  s.  5S. 

331.  Contents  of  destroyed  will  proved  on  petition  before 

clerk.  Any  person  desirous  of  establishing  the  contents  of  a  will 
destroyed  as  aforesaid,  there  being  no  copy  thereof,  may  tile  his 
petition  in  the  office  of  the  clerk  of  the  superior  court,  setting  forth 
the  entire  contents  thereof,  according  to  the  best  of  his  knowledge, 
information  and  belief,  and  all  persons  having  an  interest  imder  the 
same  shall  be  made  j^arties,  and  if  the  truth  of  such  petition  be 
denied,  the  issues  of  fact  shall  be  transferred  to  the  superior  court 
at  term  for  trial  by  a  jury,  whether  the  will  was  recorded,  and  if 
so  recorded,  the  contents  thereof,  and  the  declarations  of  the  judge, 
shall  be  recorded  as  the  will  of  the  testator.  Any  devisee  or  legatee 
shall  be  a  competent  witness  as  to  the  contents  of  every  part  of  said 
will,  except  such  as  may  concern  his  own  interest  in  the  same. 
Code,  s.  59. 

332.  Destroyed  judgments  and  proceedings  perpetuated  by 
petition  in  court  having  original  jurisdiction.  Every  person  desir- 
ous of  perpetuating  the  contents  of  any  destroyed  judgTQents,  orders 
or  proceedings  of  court,  or  any  paper  admitted  to  record  or  regis- 
tration, or  directed  to  be  filed  for  safe  keeping,  other  than  wills  or 
conveyances  of  real  estate,  or  some  right  or  interest  therein,  or  any 
deed  or  other  instrument  of  writing,  required  to  be  recorded  or 
registered  but  not  having  been  recorded  or  registered,  it  being  com- 
petent to  register  or  record  said  deed  or  other  instrument  at  the 
time  of  its  loss  or  destruction,  may  file  his  petition  in  the  court 
having  jurisdiction  of  like  matters  with  the  original  proceeding, 
setting  forth  the  substance  of  the  whole  record,  deed.  ]>roecoding,  or 
l^aper,  which  he  desires  to  perpetuate,  and  if,  on  the  hearing,  the 
court  shall  declare  the  existence  of  such  record,  deed,  or  proceeding, 
or  paper  at  the  time  of  tlie  burning  of  the  ofiice  wherein  the  same 
was  lodged  or  ke]it,  or  other  destruction  thereof,  and  that  the  same 
was  there  destroyed,  and  shall  declare  the  contents  thereof,  such 
declaration  shall  be  recorded  or  registered,  or  filed,  according  to  the 
nature  of  the  paper  destroyed. 

Code.  s.  60. 

90 


333  BUEIvrT  AXD  LOST  RECOEDS.  Ch.  11 

333.  Color  of  title,  how  determined.  Every  person  who  shall 
have  been  in  the  continual,  peaceable  and  quiet  possession  of  land, 
tenements,  or  hereditaments,  situated  in  the  county,  claiming,  using 
and  occupying  them  as  his  owti,  for  the  space  of  seven  years,  under 
known  boundaries,  the  title  thereto  being  out  of  the  state,  shall  be 
deemed  to  have  been  lawfully  possessed,  under  color  of  title,  of  such 
estate  therein  as  has  been  claimed  by  him  during  his  possession, 
although  he  may  exhibit  no  conveyance  therefor:  Provided,  that 
such  possession  shall  have  commenced  before  the  destruction  of  the 
registry  office,  or  other  destruction  as  aforesaid,  and  also  that  any 
such  person,  or  any  person  claiming  by,  through  or  under  him,  will 
make  affidavit  and  produce  such  proof  as  shall  be  satisfactory  to 
the  court  that  the  possession  was  rightfully  taken;  and  if  taken 
under  a  written  conveyance,  that  the  registry  thereof  was  destroyed 
by  fire  or  other  means,  or  was  destroyed  before  registry  as  afore- 
said, and  that  neither  the  original,  nor  any  copy  thereof,  is  in 
existence:  Provided  further,  that  such  presumption  shall  not  arise 
against  infants,  persons  of  nonsane  memory,  and  persons  residing 
out  of  the  state,  who  were  such  at  the  time  of  possession  taken, 
and  were  not  therefore  barred,  nor  were  so  barred  at  the  time  of  the 
burning  of  the  office  or  other  destruction. 

Code,  s.  61. 

334.  Action  on  destroyed  official  bonds.   Actions  on  official  or 

other  bonds  lodged  in  any  office  which  are  destroyed  with  the  reg- 
istry thereof,  may  be  prosecuted  by  petition  against  the  principal 
and  sureties  thereto,  and  the  proceedings  shall  be  as  in  the  former 
courts  of  equity. 
Code.  s.  62. 

335.  Witness  tickets  destroyed,  others  filed.   The  court  having 

jurisdiction  of  the   action   may   allow  other  witness   tickets  to   be 
filed  in  place  of  such  as  may  be  destroyed,  upon  the  oath  of  the 
witness  or  other  satisfactory  proof. 
Code,  s.  63. 

336.  Lost  conveyances,  how  replaced.  Where  any  conveyance 
executed  by  any  person,  sherifF,  clerk  and  master,  or  commissioner 
of  court  has  been  lost,  and  registry  thereof  destroyed  as  aforesaid, 
and  there  is  no  copy  thereof,  such  persons,  whether  in  or  out  of  office, 
may  execute  another  of  like  tenor  and  date,  reciting  therein  that 
the  same  is  a  duplicate,  and  such  deed  shall  be  evidence  of  the  facts 
therein  recited,  in  all  cases  wherein  the  parties  thereto  are  dead,  or 
are  incompetent  witnesses  to  prove  the  same,  to  the  extent  as  if  it 
was  the  original  conveyance. 

Code,  s.  64. 

91 


337  BTTRXT  AND  LOST  RECORDS.  Ch.  11 

337.  Records  of  courts  admissible  to  prove  contents  of  deeds, 

wills,  etc.  The  records  of  any  court  in  or  out  of  the  state,  and  all 
transcripts  of  such  i-ecords,  and  the  exhibits  filed  therewith  in  any 
case,  shall  be  admissible  to  prove  the  existence  and  contents  of  all 
deeds,  wills,  conveyances,  depositions  and  other  papers,  copies 
whereof  are  therein  set  forth  or  exhibited  in  all  cases  where  the 
records  and  registry  of  such  as  were  or  ought  to  have  been  recorded 
and  registered,  or  the  originals  of  such  as  were  not  proper  to  be 
recorded  or  registered,  have  been  destroyed  as  aforesaid,  although 
such  transcripts  or  exhibits  may  have  been  informally  certified ;  and 
when  offered  in  evidence  shall  have  the  like  effect  as  though  the 
transcript  or  record  was  the  record  of  the  court  whose  records  are 
destroyed,  and  the  deeds,  wills  and  conve.yances,  depositions  and 
other  papers  therein  copied  or  therewith  exhibited,  were  original. 
Code,  s.  G5. 

338.  Copies  of  deeds,  etc.,  mentioned  in  preceding  section  may 

be  registered.  The  copies  aforesaid  of  all  such  deeds,  wills,  convey- 
ances and  other  instruments  proper  to  be  recorded  or  registered,  as  are 
mentioned  in  the  preceding  section,  may  be  recorded  or  registered  on 
application  to  the  clerk  of  the  superior  court,  and  due  proof  that 
the  original  thereof  was  genuine. 
Code,  s.  66. 

339.  Rules  for  petitions  under  this  chapter.     The  following 

rules  shall  be  observed  in  petitions  and  motions  imdcr  this  chapter: 
The  facts  stated  in  every  petition  or  motion  shall  be  verified  by 
affidavit  of  the  petitioner  that  they  are  true  according  to  tlie  best 
of  his  knowledge,  information  and  belief;  the  instrument  or  paper 
sought  to  be  established  by  any  petition  shall  be  fully  set  forth  in 
its  substance,  and  its  precise  language  shall  be  stated  when  the 
same  is  remembered.  All  persons  interested  in  the  prayers  of  the 
petition  or  decree,  shall  be  made  ])arties.  Petitions  to  establish  a 
record  of  any  court  shall  be  filed  at  term  in  the  superior  court  of 
the  county  where  the  record  is  sought  to  be  established.  Other 
petitions  may  be  filed  in  the  office  of  the  clerk  of  the  superior  court. 
The  costs  of  every  action  under  this  chapter  shall  be  paid  as  the 
court  may  decree.  Appeals  shall  be  allowed  as  in  all  other  cases, 
and  where  the  error  alleged  shall  be  an  erroneous  finding  by  the 
superior  court  at  term,  of  a  matter  of  fact,  the  same  may  be  removed 
on  appeal  to  the  supreme  court,  and  the  proper  judgments  directed 
to  be  entered  below.  And  it  shall  be  presumed  that  any  order  or 
record  of  the  court  of  pleas  and  quarter  sessions,  which  was  made 
and  has  been  lost  or  destroyed,  was  m:ido  by  a  legally  constituted 


339  BURNT  AND  LOST  EECORDS.  Ch.   11 

court,   and  the  requisite  number  of  justices,   without  naming  said 
justices. 

Code,  s.  G7;   1893,  c.  295. 

340.  Records  allowed  under  this  chapter  have  same  effect  as 

original.   The  records  and   registries   allowed   by  the  court   in   pui'- 
suance   of  this   chapter   shall   have   the   same   force    and   effect   as 
original  records  and  registries. 
Code,  s.  68. 

341.  Recitals  of  decrees,  records,  etc.,  in  deeds  executed  prior 
to  destruction  thereof  prima  facie  evidence  of  existence.  The 

recitals,  reference  to,  or  mention  of  any  decree,  order,  judgment  or 
other  record  of  any  court  of  record  of  any  county  in  which  the 
courthouse,  or  records  of  said  courts,  or  both,  have  been  destroyed 
by  fire  or  otherwise,  contained,  recited  or  set  forth  in  any  deed  of 
conveyance,  paper  writing,  or  other  bona  fide  written  evidence  of 
title,  executed  prior  to  the  destruction  of  the  courthouse  and  records 
of  said  county,  by  any  executor  or  administrator  with  a  will  annexed, 
or  by  any  clerk  and  master,  superior  court  clerk,  clerk  of  the  court 
of  pleas  and  qiiarter  sessions,  sheriff,  or  other  oflicer,  or  commis- 
sioners appointed  by  either  of  said  courts,  and  authorized  by  law  to 
execute  said  deed  or  other  paper  writing,  shall  be  deemed,  taken 
and  recognized  as  true  in  fact,  and  shall  be  prima  facie  evidence 
of  the  existence,  validity  and  binding  force  of  said  decree,  order, 
judgment  or  other  record  so  referred  to  or  recited  in  said  deed,  or 
jiaper  writing,  and  shall  be  to  all  intents  and  purposes  binding 
and  valid  against  all  persons  mentioned  or  described  in  said  instni- 
ment  of  writing,  deed,  etc.,  as  purporting  to  be  j^arties  thereto,  and 
against  all  persons  who  were  parties  to  said  decree,  judgment,  order 
or  other  record  so  referred  to  or  recited,  and  against  all  persons 
claiming  by,  through  or  under  them  or  either  of  them. 
Code,  s.  09. 

342.  Deed  prima  facie  evidence  of  records  recited  therein. 

Such  deed  of  conveyance,  or  other  paper  writing,  executed  as  afore- 
said, and  registered  according  to  law,  shall  be  allowed  to  be  read 
in  any  suit  now  pending  or  which  may  hereafter  be  institiated  in 
any  court  of  this  state,  as  prima  facie  evidence  of  the  existence  and 
validity  of  the  decree,  judgment,  order,  or  other  record  upon  which 
the  same  purports  to  be  founded,  without  any  other  or  further  resto- 
ration or  reinstatement  of  said  decree,  order,  judgment,  nr  record, 
than  is  contained  in  this  chapter. 
Code,  s.  70. 


343  BURXT  AXD  LOST  RECORDS.  Ch.  11 

343.  Provisions  of  tiiis  chapter  extend  to  what  records,  etc. 

This  chapter  shall  extend  to  records  of  any  coiirt  which  has  been, 
or  may  be  destroyed  by  fire  or  otherwise,  and  to  any  deed  of  con- 
veyance, paper  writing,  or  other  bona  fide  evidence  of  title  executed 
before  the  destruction  of  said  records. 
Code,  s.  71. 

344.  Certain  records  in  Moore  county  presumed  to  have  been 

burned.  In  all  cases  in  J\[oi:ire  count_y  of  bonds,  indentures,  accounts, 
minutes,  judgment  rolls  and  all  other  records  that  can  not  be  found 
on  record  or  on  file  in  the  said  clerk's  office  after  diligent  search  there- 
for by  the  clerk  of  the  court,  and  can  not  be  otherwise  accounted  for, 
the  same  having  been  on  record  or  file  therein  on  or  before  September 
fifth,  one  thousand  eight  hundred  and  eighty-nine,  shall  be  presumed 
to  have  been  destroyed  by  fire.  In  all  cases  in  which  said  bonds,  in- 
dentures, accounts,  minutes,  judgment  rolls  and  other  records  or  any 
part  thereof  have  been  lost  or  destroyed  and  in  which  it  may  become 
necessary  to  use  the  same  in  evidence,  it  shall  be  presumed  that  the 
same  were  executed,  filed,  audited  or  adjudicated,  as  the  case  may 
be,  in  due  and  legal  form  and  were  in  all  respects  lawful  records 
and  documents. 
1891,  0.  55. 

345.  In  Buncombe,  Madison,  Yancey  and  Haywood  counties. 

Whenever  any  of  the  records  of  any  of  the  courts  in  this  state  have 
been  burnt,  lost  or  destroyed,  and  there  is  in  existence  any  copy 
thereof,  or  of  any  part  of  the  same,  duly  certified,  whether  under  the 
seal  of  the  court  or  otherwise,  by  any  former  clerk  of  said  court,  it 
shall  be  the  duty  of  the  present  clerk  of  said  court,  or  any  clerk  of 
said  court  hereafter  in  office,  upon  presentation  to  him  of  such  copy 
and  the  payment  of  his  lawful  fees  therefor,  to  record  said  co]iy  upon 
the  minutes  or  records  of  said  court;  and  after  the  same  shall  have 
been  so  recorded  the  record  then  shall  be  used  as  and  be  taken  and 
deemed  and  shall  have  all  the  force  and  effect  of  the  original  record 
so  burnt,  lost  or  destroyed ;  and  such  record  thereof,  or  a  copy  of  the 
same  duly  certified  by  the  clerk  of  said  court,  shall  be  in  all  respects 
competent  in  the  same  way  and  manner  as  the  original  record  in  all 
the  courts  of  this  state.  This  section  shall  apply  only  to  the  counties 
of  Buncombe,  Madison,  Yancey  and  Haywood. 
1905,  c.  308. 


346 


CIVIL  PROCEDUEE. 


Ch.  12 


CHAPTER  12. 


CIVIL  PROCEDURE. 


I.  Definitions, 

II.  General  provisions, 

III.  Limitations,  general  provisions, 

IV.  Limitations,  real  property, 

V.  Limitations,  other  than  real  property, 

VI.  Parties. 

VII.  Venue, 

VIII.  Summons, 

IX.  Prosecution  bonds, 

X.  Joint  and  several  debtors, 

XI.  Lis  pendens, 

XII.  Complaint, 

XIII.  Defendant's  pleadings, 

XIV.  Demurrer, 
XV.  Answer, 

XVI.  Reply, 

XVII.  Pleading,  general  provisions, 

XVIII.  Amendments. 

XIX.  Variance  between  pleading  and  proof, 

XX.  Reference, 

XXI.  Trial, 

XXII.  Issues, 

XXIII.  Verdict, 

XXIV.  .Judgment, 

XXV.  Judgment  confessed, 

XXVI.  Appeal, 

XXVII.  Execution, 

XXVIII.  Execution  sales, 

XXIX.  Betterments, 

XXX.  Supplemental  proceedings, 

XXXI.  Property  exempt,  etc., 

XXXII.  Special  proceedings, 

XXXIII.  Arrest  and  bail, 

XXXIV.  Attachment, 
XXXV.  Claim  and  delivery, 

XXXVI.  Controversy  without  action. 

XXXVII.  Injunction, 

XXXVIII.  Mandamus, 

XXXIX.  Nuisance, 

XL.  Quo  warranto, 

XLI.  Receivers, 

XLII.  Trust  funds  sununarily  protected, 

XLIII.  Waste, 

XLIV.  Compromise, 

XLV.  Examination  of  parties, 

XLVI.  Motions  and  orders, 

XLVII.  Notices, 

XLVIII.  Time, 


Sections. 
346— .352 
353—358 
359—379 
380—389 
390—399 
400—418 
419-^28 
429—449 
450 — 454 
455 — 459 
460 — 464 
465—469 
470^73 
474^78 
479—483 
484 — 486 
487—504 
505—514 
515—517 
518— .525 
526—543 
544—549 
550—554 
555—579 
580—582 
583—614 
615—640 
641—651 
652—666 
667—684 
685—709 
710—725 
726—757 
758—789 
790—802 
803—805 
806—821 
822—824 
825 
826—845 
846—849 
850—852 
853—858 
859—863 
864—872 
873—877 
878—886 


95 


346  CIVIL  PKOCEDrEE— /.  DcftnUions.  Ch.   12 

I.     Definitions. 

346.  Remedies.    lieiuedies  in  the  courts  of  justice  are  divided 

into — 

1.  Actions. 

2.  Special  proceedings. 
Code,  s.  125;  C.  C.  P.,  s.  1. 

347.  Actions.  An  action  is  an  ordinary  proceeilini;'  in  a  court  of 
justice,  by  wliicli  a  party  jn-osecntes  another  party  for  the  enfoi'ce- 
ment  or  protection  of  a  right,  the  redress  or  prevention  of  a  wrong, 
or  the  pnnishment  or  prevention  of  a  public  offense. 

Code,  s.  126;  C.  C.  P.,  s.  2;   1868-9,  c.  277,  s.  2. 

348.  Special  proceedings.  Every  other  remedy  is  a  special  pro- 
ceeding. 

Code,  s.   127;   C.  C.  P.,  s.  3. 

349.  Kinds  of  actions.   Actions  are  of  two  kinds — 

1.  Civil. 

2.  Criminal. 

Code,  g.  128;   C.  C.  P.,  s.  4. 

350.  Criminal  action.   A  criminal  action  is — 

1.  An  action  prosecuted  by  the  state  as  a  party,  against  a  person 
charged  with  a  public  offense,  for  the  punishment  thereof. 

2.  An  action  prosecuted  by  the  state,  at  the  instance  of  an  in- 
dividual, to  prevent  an  apprehended  crime  against  his  person  or 
property. 

Code,  s.  129;  C.  C.  P.,  s.  5;  Const.,  Art.  IV,  s.  1. 

351.  Civil  action.   Every  other  is  a  civil  action. 
Code,  s.  130;   C.  C.  P.,  s.  6. 

352.  Court  means  Clerl<,  Wlien.  In  those  of  the  following  enact- 
ments which  confer  jurisdiction  or  power,  or  impose  duties,  when 
the  words  "superior  court,"  or  "court,"  in  reference  to  a  superior 
court  are  used,  they  mean  the  clerk  of  the  superior  court,  unless 
otherwise  specially  stated,  or  unless  reference  is  made  to  a  regular 
term  of  the  court,  in  wliich  cases  the  judge  of  the  court  alone  is 
meant. 

Code,  S.  132;  C.  C.  P.,  s.  9. 
Note.     See  s.  3.'">8. 


353        CIVIL  PKOCEDUEE— 77.   General  Provisions.        Cli.   12 

II.     GENERAL   Provisions. 

353.  Remedies  not  merged.  Where  the  violation  of  a  right 
udmits  both  of  a  civil  ami  a  criminal  remedy,  the  right  to  prosecute 
the  one  is  not  merged  in  the  other. 

Code,  s.  131;  C.  C.  P.,  s.  7. 

354.  One  form  of  action.  The  distinction  between  actions  at  law 
and  suits  in  equity,  and  the  forms  of  all  such  actions  and  suits, 
heretofore  existing,  are  abolished,  and  there  shall  be  hereafter  but 
one  form  of  action  for  the  enforcement  or  protection  of  private 
rights,  and  the  redress  of  j^rivate  wrongs,  which  shall  be  denominated 
a  civil  action. 

Code,  s.  133;   C.  C.  P.,  s.   12:  Const..  Art.   IV,  s.   1. 

355.  Parties  known  as  plaintiff  and  defendant.  In  .such  action, 

the  party  complaining  shall  be  kno^^^l  as  the  plaiutifF,  and  the  adverse 
party  as  the  defendant. 

Code,   s.    134;    C.   C.   P.,   s.    13. 

356.  How  party  may  appear.  A  party  may  appear  in  actions  or 
proceedings  in  which  he  is  concerned  either  in  person  or  by  attorney. 

Code,  s.   100;   C.  C.  P.,  s.  423. 

357.  Feigned  issues  abolished.  Feigned  issues  are  abolished, 
and  instead  thereof,  in  the  cases  where  the  power  formerly  existed 
to  order  a  feigned  issue,  or  when  a  question  of  fact  not  put  in  issue 
by  the  pleadings,  is  to  be  tried  by  a  jury,  an  order  for  the  trial  may 
be  made  by  the  judge,  stating  distinctly  and  plainly  the  question  of 
fact  to  be  tried ;  and  such  order  shall  be  the  only  authority  necessary 
for  a  trial. 

Code,  s.   135;   C.   C.   P.,  s.   15. 

358.  Jurisdiction  of  clerk  on  procedure.  The  clerk  of  the  supe- 
rior court  shall  have  jurisdiction  to  hear  and  decide  all  qviestions 
of  practice  and  procedure  in  this  court,  and  all  other  matters  whereof 
jurisdiction  is  given  to  the  superior  court,  unless  the  judge  of  said 
court,  or  the  court  at  a  regular  term  thereof,  be  expressly  referred  to. 

Code,  s.  251;  C.  C.  P.,  s.  108. 
Note.     See  s.  352. 

III.     Limitations,  General  Provisions. 

359.  When  action  commenced.  An  action  is  commenced  as  to 
each  defendant  when  the  summons  is  issued  against  him. 

Code,  s.  161 ;  C.  C.  P..  s.  40. 

Rev.  Vol.  1—4  97 


360    CIVIL  PROCEDURE— 7/7.  Llm.,  Gen.  Provisions.     Cli.  12 

360.  Run  from  cause  of  action  accrued;   objection  taken  by 

answer.  CiA'il  aetiuus  call  only  be  eiiuiuu'iiecnl  within  the  periods 
prescribed  in  this  chapter,  after  the  cause  of  action  shall  have  accrued, 
except  where  in  special  cases  a  different  limitation  is  prescribed  bv 
statute.  But  the  objection  that  the  action  was  not  connnenced  within 
the  time  limited  can  only  be  taken  by  answer. 

Code,  s.   138;   C.  C.   P.,  s.   17. 

361.  Deemed  pleaded  by  insane  party.    On  the  trial  of  any 

action  or  special  proceeding  to  which  an  insane  person  has  been 
made  a  party,  such  insane  person  shall  be  deemed  to  have  pleaded 
specially  any  defense,  and  shall  on  trial  have  the  benefit  of  any 
defense,  whether-  pleaded  or  not,  that  might  have  been  made  for  him 
by  his  guardian  or  attorney  under  the  provisions  of  this  chapter. 
And  the  court,  at  any  time  before  the  action  or  proceeding  is  finally 
disposed  of,  may  order  the  bringing  in,  by  proper  notice,  of  one  or 
more  of  the  near  relatives  or  friends  of  such  insane  person,  and  may 
make  such  other  order  as  it  may  deem  necessary  for  his  proper 
defense. 

1889,  c.  89,  s.  2. 

362.  Disabilities.  If  a  person  entitled  to  commence  an  action, 
except  for  a  jjenalty  or  forfeiture,  or  against  a  sheriff  or  other 
officer  for  an  escape,  be  at  the  time  the  cause  of  action  accrued, 
either, 

1.  Within  the  age  of  twenty-one  years;  or 

2.  Insane;  or 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  \inder  sen- 
tence for  a  criminal  offense; 

Then  such  person  may  bring  his  action  within  the  times  herein 
limited,  after  the  disability  shall  be  removed,  except  in  an  action 
for  the  recovery  of  real  property,  or  to  make  an  entry  or  defense 
fotmded  on  the  title  to  real  property,  or  to  rents  and  services  out  of 
the  same,  when  he  shall  commence  his  action,  or  make  his  entry, 
within  three  years  next  after  the  removal  of  the  disability,  and  at  no 
time  thereafter. 

Code,  ss.  148,  163;  C.  C.  P.,  ss.  27,  142;   1899,  c.  78. 

Note.     For  disabilities  in  an  action  to  rccovor  land  sold  for  taxes,  see  s.  2909. 

363.  Disability  of  marriage.  In  any  action  in  which  the  defense 
of  adverse  jtossession  is  relied  u])on,  the  time  computed  as  constitu- 
ting such  adverse  possession  shall  not  inchide  any  possession  had 
against  a  feme  covert  during  coverture  prior  to  February  thirteenth, 
one  thousand  eight  hundred  and  ninety-nine. 

1899,  c.  78,  S3.  2,  3. 


304    CIVIL  PROCEDUEE— 777.  TAm.,  Gen.  Provisions.    C'li.   12 

36i4.  Cumulative  disabilities.  When  two  or  more  disaliilities  shall 
co-exist  at  the  time  the  right  of  action  accnies,  or  when  one  disa- 
bility shall  supervene  an  existing  one,  the  limitation  shall  not  attach 
nntil  they  all  be  removed. 

Code,  ss.    ]4!),   170;   C.  C.   P.,  ss.  28,  49. 

365.  Disability  must  exist  when  right  of  action  accrues.    No 

person  shall  avail  himself  of  a  disability,  unless  it  existed  when  his 
right  of  action  accrued. 
Code,  s.  169;  C.  C.  P.,  s.  48. 

366.  Defendant  out  of  state;  action  begun,  judgment  enforced, 

when.  If,  when  the  cause  of  action  accrue  or  judgment  be  rendered 
or  docketed  against  any  person,  he  shall  be  out  of  the  state,  action 
may  be  commenced,  or  judgment  enforced,  within  the  times  herein 
respectively  limited,  after  the  return  of  such  person  into  this  state, 
and  if,  after  such  cause  of  action  shall  have  accrued  or  judgment 
rendered  or  docketed,  such  person  shall  depart  from  and  reside  oiit 
of  this  state,  or  remain  continuously  absent  therefrom  for  the  space 
of  one  year  or  more,  the  time  of  his'  absence  shall  not  be  deemed  or 
taken  as  any  part  of  the  time  limited  for  the  commencement  of 
such  action,  or  the  enforcement  of  such  judgment.  This  section 
shall  apply  to  all  actions  that  have  accrued  and  judgments  rendered, 
transferred  or  docketed  since  the  twenty-fourth  day  of  August,  one 
thousand  eight  hundred  and  sixty-eight. 

Code,  s.  162;   C.  C.  P.,  s.  41;   1881,  c.  258, -ss.  1,  2, 

367.  Death  before  limitation  expires;  action  by  or  against  exec- 
utor, when.  If  a  person  entitled  to  bring  an  action  die  before  the 
expiration  of  the  time  limited  for  the  commencement  thereof,  and 
the  cause  of  action  survive,  an  action  may  be  commenced  by  his 
representatives  after  the  expiration  of  that  time,  and  within  one 
year  from  his  death.  If  a  person  against  whom  an  action  may  be 
brought  die  before  the  expiration  of  the  time  limited  for  the  com- 
mencement thereofj  and  the  cause  of  action  survive,  an  action  may 
be  commenced  against  his  personal  representative  after  the  expira- 
tion of  that  time,  and  within  one  year  after  the  iss\iing  of  letters 
testamentary  or  of  administration,  provided  such  letters  are  issued 
within  ten  years  of  the  death  of  such  person.  But  if  the  claim  upon 
which  such  cause  of  action  is  based  be  filed  with  the  personal  repre- 
sentative within  the  time  above  specified,  and  the  same  shall  be  admit- 
ted by  him,  it  shall  not  be  necessary  to  bring  an  action  upon  such  claim 
to  prevent  the  bar :  Provided,  that  no  action  shall  be  brought  against 
the  personal  representative  upon  such  claim  after  his  final  settle- 
ment. 

Code,  s.   164;   C.  C.  P.,  s.  43;   1881,  c.  80. 
Note.     See  s.  91  et  seq. 


368    CIVIL  PEOCEDURE— ///.  Lim.,  Gen.  Provisions.     Ch.  12 

368.  Time  of  stay  by  injunction  or  prohibition.  When  the, com- 
mencement of  an  action  shall  be  stayed  by  injnnction  or  statiitory 
prohibition,  the  time  of  the  continuance  of  the  injunction  or  pro- 
hibition shall  not  be  part  of  the  time  limited  for  the  commencement 
of  the  action. 

Code,  s.   167;   C.  C.  P.,  s.  46. 

369.  Time  during  controversy  on  probate  of  will  or  granting 

letters.  In  reckoning  time  when  pleaded  as  a  bar  to  actions,  that 
period  shall  not  be  counted  which  elapses  during  any  controversy  on 
the  probate  of  a  will  or  granting  letters  of  administration,  unless 
there  be  an  administrator  appointed  during  the  pendency  of  the 
action,  and  it  be  jjrovided  that  an  action  may  be  brought  against 
him. 

Code,  s.  168;  C.  C.  P.,  s.  47. 

370.  New  action  within  one  year  after  nonsuit,  etc.    If  an 

action  shall  be  commenced  within  the  time  prescribed  therefor,  and 
the  plaintiff  be  nonsuited,  or  a  judgment  therein  be  reversed  on 
appeal,  or  be  arrested,  the  plaintiff,  or  if  he  die  and  the  cause  of 
action  survive,  his  heir  or  representative,  may  commence  a  new 
action  within  one  year  after  such  nonsuit,  reversal,  or  arrest  of 
judgment. 

Code,   ss.    142,   166;    C.   C.   P.,   ss.   21,   4.5. 

371.  New  promise  must  be  in  writing.   Xo  acknowledginent  or 

promise  shall  be  received  as  evidence  of  a  new  or  continiiing  con- 
tract, from  which  the  statutes  of  limitations  shall  run,  unless  the 
same  be  contained  in  some  writing  sigmed  by  the  party  to  be  charged 
thereby ;  but  this  section  shall  not  alter  the  effect  of  any  payment  of 
principal  or  interest. 

Code,   s.    172;   C.   C.   P.,  s.   51. 

372.  Admission  by  partner  after  dissolution;  effect.    No  act, 

admission  or  acknowledgment  by  any  partner  after  the  dissolution 
of  the  copartnership,  or  by  any  of  the  makers  of  a  promissory 
note  or  bond  after  the  statute  of  limitation  shall  have  barred  the 
same,  shall  be  received  as  evidence  to  i-epel  the  statute,  cxceiit  against 
the  partner  or  maker  of  the  promissory  note  or  bond,  doing  the 
act  or  making  the  admission  or  acknowledgment. 
Code,  s.  171;  C.  C.  P.,  s.  50. 

373.  Undisclosed  partner.  The  statutes  of  limitations  iirescriliiMJ 
by  law  shall  apply  to  a  civil  action  brought  against  an  undisclo.sed 
partner  only  from  the  time  when  such  partnership  became  known 
to  the  plaintiff. 

1893,  c.  151. 

100 


374    CIVIL  PROCEDURE—///.  Lhn.,  Gen.  Provisions.     Ch.  12 

374.  Cotenants;  part  barred,  when.  If  in  actions  by  tenants  in 

common  or  joint  tenants  of  personal  property,  to  recover  the  same, 
or  damages  for  the  detention  of,  or  injury  thereto,  any  of  them 
shall  be  barred  of  their  recovery  by  limitation  of  time,  the  rights 
of  the  others  shall  not  be  affected  thereby,  but  they  may  recover 
according  to  their  right  and  interest,  notwithstanding  such  bar. 
Code,  s.  173;  C.  C.  P.,  s.  52. 

375.  Applicable  to  actions  by  state.  The  limitations  prescribed 
by  lavs^  shall  apply  to  civil  actions  brought  in  the  name  of  the  state, 
or  for  its  beneiit,  in  the  same  manner  as  to  actions  by  or  for  the 
benefit  of  private  parties. 

Code,  s.  159;   C.  C.  P.,  s.  38. 

376.  Action  on  account  current.  In  an  action  brought  to  recover 
a  balance  due  upon  a  mutual,  open  and  current  account,  where  there 
have  been  reciprocal  demands  between  the  parties,  the  cause  of 
action  shall  be  deemed  to  have  accrued  from  the  time  of  the  latest 
item  proved  in  the  account  on  either  side. 

Code,  s.  160;  C.  C.  P.,  s.  39. 

377.  Not  applicable  to  bank  bills.  The  limitations  prescribed 
by  law  shall  not  affect  actions  to  enforce  the  payment  of  bills,  notes 
or  other  evidences  of  debt,  issued  or  put  in  circulation  as  money  by 
moneyed  corporations  incorporated  under  the  laws  of  the  state. 

Code.  s.  174;  C.  C.  P.,  s.  53;   1874-5,  c.  170. 

378.  Actions  against  bank  officers  and  stockholders.  The  lim- 
itations prescribed  by  law  shall  not  affect  actions  against  directors 
or  stockholders  of  any  moneyed  corporation,  or  banking  association 
incorporated  under  the  laws  of  this  state,  to  recover  a  penalty  or  for- 
feiture imjjosed,  or  to  enforce  a  liability  created  by  law;  but  such 
actions  must  be  brought  within  three  years  after  the  discovery  by  the 
aggrieved  party  of  the  facts  ujion  which  the  penalty  or  forfeiture 
attached,  or  the  liability  was  created. 

Code,  s.   175;   C.  C.  P.,  s.  54. 

379.  Aliens  in  time  of  war.  When  a  person  shall  be  an  alien 
subject,  or  a  citizen  of  a  country  at  war  with  the  United  States,  the 
time  of  the  continuance  of  the  war  shall  not  be  part  of  the  period 
limited  for  the  commencement  of  the  action. 

Code,  s.  165;   C.  C.  P.,  s.  44. 


380      CIVIL  PEOCEDUEE— ZT'.  Lim.,  Beal  PropeHy.      Ch.   12 

IV.     LiiiiTATioNS,  Eeal   Peoperty. 

380.  Title  against  state.    The  state  will  not  sue  any  person  for, 

or  in  respect  of,  any  real  ]>ropert_v,  or  the  issue  or  profits  thereof, 
by  reason  of  the  right  or  title  of  the  state  to  the  same — 

1.  When  the  person  in  jDOssession  thereof,  or  those  under  whom  he 
claims,  shall  have  been  in  the  adverse  possession  thereof  for  thirty 
years,  such  possession  having  been  ascertained  and  identified  under 
known  and  visible  lines  or  boim^daries ;  which  shall  give  a  title  in  fee 
to  the  possessor. 

2.  When  the  person  in  possession  thereof,  or  those  under  whom 
he  claims,  shall  have  been  in  possession  under  colorable  title  for 
twenty-one  years,  such  possession  having  been  ascertained  and  identi- 
fied under  known  and  visible  lines  or  boundaries. 

Code,  s.  139;  C.  C.  P.,  18;  R.  C,  e.  65,  s.  2. 

381.  Such  possession  valid  against  claimants  under  state.  All 

such  possession  as  is  described  in  the  preceding  section,  under  such 
title  as  is  therein     described,  is  hereby  ratified  and  confirmed,  and 
declared  to  be  a  good  and  legal  bar  against  the  entry  or  suit  of  any 
person,  under  the  right  or  claim  of  the  state. 
Code,  s.  140;  C.  C.  P.,  s.   19. 

382.  Seven  years'  possession  under  color.    When  the  person  in 

possession  of  any  real  property,  or  those  under  whom  he  claims, 
shall  have  been  possessed  of  the  same,  under  known  and  visible  lines 
and  boundaries,  and  under  colorable  title  for  seven  years,  no  entry 
shall  be  made  or  action  sustained  against  such  possessor  by  any 
person  having  any  right  or  title  to  the  same,  except  during  the  seven 
years  next  after  his  right  or  title  shall  have  descended  or  accrued, 
who  in  default  of  suing  within  the  time  aforesaid,  shall  be  excluded 
from  any  claim  thereafter  to  be  made;  and  such  possession,  so  held, 
shall  be  a  perpetual  bar  against  all  persons  not  under  disability. 

Code,  s.  141;  C.  C.  P.,  s.  20. 

Note.     See  s.  333. 

383.  Seizin  within  twenty  years,  when  necessary.   Xo  action 

for  the  recovery  of  real  property,  or  the  ]iossession  tliereof,  shall 
be  maintained,  unless  it  appear  that  the  plaintiff,  or  those  under 
whom  he  claims,  was  seized  or  possessed  of  the  premises  in  question 
within  twenty  _years  before  the  commencement  of  such  action,  unless 
he  was  under  the  disabilities  prescribed  by  law. 
Code,  s.  143;  C.  C.  P.,  s.  22. 

384.  Twenty  years'  adverse  possession.    No  action  for  tlic 

recovery  of  real  property,  or  the  poss(>ssion   thereof,   or  the  issues 


384     CIVIL  PEOCEDUEE— 77.  Lim.,  Real  Property.      Ch.   12 

and  profits  thereof,  shall  be  maintained'  when  the  person  in  posses- 
sion thereof,  or  the  defendant  in  such  action,  or  those  under  whom 
he  claims,  shall  have  possessed  such  real  property  under  known  and 
visible  lines  and  boundaries  adversely  to  all  other  persons  for  twenty 
years;  and  such  possession  so  held,  shall  give  a  title  in  fee  to  the 
possessor,  in  such  property,  against  all  persons  not  under  disability. 
Code,  s.  144;  C.  C.  P.,  s.  23. 

385.  Action  after  entry.  No  entry  upon  real  estate  shall  be 
deemed  sufficient  or  valid,  as  a  claim,  unless  an  action  be  commenced 
thereupon  within  one  year  after  the  making  of  such  entry,  and  within 
the  time  prescribed  in  this  chapter. 

Code,  s.  145;  0.  C.  P.,  s.  24. 

386.  Possession  follows  legal  title,  when.  In  every  action  for 
the  recover^'  of  real  property,  or  the  possession  thereof,  or  damages 
for  a  trespass  on  such  possession  the  person  establishing  a  legal 
title  to  the  premises  shall  Ije  presumed  to  have  been  possessed 
thereof  within  the  time  required  by  law ;  and  the  occupation  of  such 
premises  by  any  other  person  shall  be  deemed  to  have  been  under 
and  in  subordination  to,  the  legal  title,  unless  it  appears  that  such 
premises  have  been  held  and  possessed  adversely  to  such  legal  title, 
for  the  time  prescribed  by  law  before  the  commencement  of  such 
action. 

Code,  s.  146;  C.  C.  P.,  s.  25. 

387.  Tenant's  possession  is  landlord's.  Whenever  the  relation 
of  landlord  and  tenant  shall  have  existed  between  any  persons,  the 
possession  of  the  tenant  shall  be  deemed  the  possession  of  the  land- 
lord, until  the  expiration  of  twenty  years  from  the  termination  of 
the  tenancy;  or  where  there  has  been  no  written  lease,  until  the 
expiration  of  twenty  years  from  the  time  of  the  last  payment  of 
rent,  notwithstanding  that  such  tenant  may  have  acquired  another 
title,  or  may  have  claimed  to  hold  adversely  to  his  landlord.  But 
such  presumptions  shall  not  be  made  after  the  periods  herein  limited. 

Code,  s.   147;   C.  C.  P.,  s.  20. 

388.  No  title  by  possession  of  right  of  way.  No  railroad,  plank 

road,  turnpike  or  canal  company  shall  be  barred  of,  or  presumed 
to  have  conveyed,  any  real  estate,  right  of  way,  easement,  leasehold, 
or  other  interest  in  the  soil  which  may  have  been  condemned,  or 
otherwise  obtained  for  its  use,  as  a  right  of  way,  depot,  station- 
house  or  place  of  landing,  by  any  statute  of  limitation  or  by  occupa- 
tion of  the  same  by  any  person  whatever. 
Code,  s.  150;  C.  C.  P.,  s.  29;  R.  C,  c.  65,  s.  23. 


389      CIVIL  PEOCEDrrvE— /r.  Li  in..  Bed  Property.      Ch.   12 

389.  No  title  by  possession  of  streets  and  higtiways.  Xo  per- 
son or  corporation  shall  ever  acquire  any  exclusive  riglit  to  anv  part 
of  any  public  road,  street,  lane,  alley,  square  or  public  way  of  any 
kind  by  reason  of  any  occupancy  thereof  or  by  encroaching  upon  or 
obstructing  the  same  in  any  way,  and  in  all  actions,  whether  civil  or 
criminal,  against  any  person  or  corporation  on  acco^mt  of  any 
encroachment  upon  or  obstruction  of  or  occupancy  of  any  public 
way  it  shall  not  be  competent  for  any  court  to  hold  that  such  action 
is  barred  by  any  statute  of  limitations. 

1891,  c.  224. 

V.     Limitations^  Other  Tiiak  Real  PnorERTv. 

390.  Periods  prescribed.  The  periods  prescribed  for  the  com- 
mencement of  actions,  other  than  for  the  recovery  of  real  property, 
shall  be  as  set  forth  in  this  subchapter. 

Code,  s.  151;  C.  C.  P.,  s.  30. 

391.  Ten  years.   Within  ten  years — 

1.  An  action  upon  a  judgment,  or  decree  of  any  court  of  this 
state,  or  of  the  United  States,  or  of  any  state  or  territory  thereof, 
from  the  date  of  the  rendition  of  said  judgment  or  decree.  But 
no  such  action  shall  be  brought  more  than  once,  nor  have  the  effect 
to  continue  the  lien  of  the  original  judgment. 

2.  An  action  upon  a  sealed  instrument  against  the  principal 
thereto. 

3.  An  action  for  the  foreclosure  of  a  mortgage,  or  deed  in  trust 
for  creditors  with  a  power  of  sale,  of  real  property,  where  the 
mortgagor  or  grantor  has  been  in  possession  of  the  property,  within 
ten  years  after  the  forfeiture  of  the  mortgage,  or  after  the  power 
of  sale  became  absolute,  or  within  ten  years  after  the  last  payment 
on  the  same. 

4.  An  action  for  the  redemption  of  a  mortgage,  where  the  mort- 
gagee has  been  in  possession,  or  for  a  residuary  interest  under  a 
deed  in  trust  for  creditors,  where  the  trustee  or  those  holding  under 
him  shall  have  been  in  possession,  within  ten  years  after  the  right 
of  action  accrued. 

Code,  s.  152;  C.  C.  P.,  ss.  14,  31. 

Note.  For  time  within  which  power  of  sale  in  mortgage  may  be  e.xecuted. 
see  Conveyances,  s.  1044. 

Running  of  statiite  against  judgment  suspondod  by  laying  off  bomeslcad  of  judg 
ment  debtor,  see  s.  GR.'i. 

392.  Seven  years.   Within  seven  years — 

1.  An  action  on  a  judgment  rendered  by  a  justice  of  the  peace, 
from  the  date  thereof. 

2.  By  any  creditor  of  a  deceased  person  against  his  personal  or 
real  representative,  within  seven  years  ne.xt  after  the  qiuilifieatinu 

104 


392  CIVIL  PEOCEDUEE— 7.  Lim.,  Other  than  Real  Pr.   Ch.   12 

of  the  executor  or  administrator  and  his  making  the  advertisement 
required  by  law,  for  creditors  of  the  deceased  to  present  their  claims, 
where  no  personal  service  of  such  notice  in  writinc;  is  made  upon 
the  creditor;  and  a  creditor  thus  barred  of  a  recovery  against  the 
representative  of  any  principal  debtor  shall  also  be  barred  of  a 
recovery  against  any  surety  to  such  debt. 

Code,  s.   153;   C.  C.  P.,  s.  32. 

393.  Six  years.  Within  six  years — 

1.  An  action  upon  the  official  bond  of  any  public  officer. 

2.  An  action  against  any  executor,  administrator,  collector,  or 
guardian  on  his  official  bond,  within  six  years  after  the  auditing  of 
his  final  accounts  by  the  proper  officer,  and  the  filing  of  such  audited 
account  as  required  by  law. 

3.  An  action  for  injury  to  any  incorporeal  hereditament. 

Code,  s.   154;   C.  C.   P.,  s.   33. 

Note.  For  limitations  against  officers  of  a  corporation,  improper  payment 
of  dividends,  etc.,  see  Corporations. 

394.  Five  years.  Within  five  years — 

1.  No  suit,  action  or  proceeding  shall  be  brought  or  maintained 
against  any  railroad  company  owning  or  operating  a  railroad  for 
damages  or  compensation  for  right  of  way  or  use  and  occupancy  of 
any  lands  by  said  company  for  use  of  its  railroad  unless  such  suit, 
action  or  proceeding  shall  be  commenced  within  five  years  after  said 
lands  shall  have  been  entered  upon  for  the  purpose  of  constructing 
said  road,  or  within  two  years  after  said  road  shall  be  in  operation. 

2.  No  suit,  action  or  proceeding  shall  be  brought  or  maintained 
against  any  railroad  company  by  any  person  for  damages  caiised 
by  the  construction  of  said  road,  or  the  repairs  thereto,  unless  such 
suit,  action  or  proceeding  shall  be  conunenced  Avithin  five  years 
after  the  cause  of  action  accrues,  and  the  jviry  shall  assess  the  entire 
amount  of  damages  which  the  party  aggrieved  is  entitled  to  recover 
by  reason  of  the  trespass  on  his  property. 

Note.     See  Three  Years. 

1893,  c.  152:  1895,  c.  224;  1897,  c.  339. 

395.  Three  years.  Within  three  years — 

1.  An  action  upon  a  contract,  obligation  or  liability  arising  out 
of  a  contract,  express  or  implied,  except  those  mentioned  in  the 
preceding  sections. 

2.  An  action  upon  a  liability  created  by  statute,  other  than  a 
penalty  or  forfeiture,  unless  some  other  time  be  nuMitioned  in  the 
statute  creating  it. 

3.  An  action  for  trespass  upon  real  property.  Wlicn  tlie  trespass 
is  a  continuing  one,  such  action  shall  be  commenciHl  within  three 
years  from  the  original  trespass,  and  not  thereafter. 

105 


395   CIVIL  PROCEDUEE—r.  Dim.,  Other  than  Real  Pr.   Ch.   li' 

4.  An  action  for  taking,  detaining,  converting  or  injuring  any 
goods  or  chattels,  inchiding  action  for  their  specific  recovery. 

5.  An  action  for  criminal  conversation,  or  for  any  other  injury 
to  the  person  or  rights  of  another,  not  arising  on  contract  and  not 
hereinafter  enumerated. 

6.  An  action  against  the  sureties  of  any  executor,  administrator, 
collector  or  giiardian  on  the  official  bond  of  their  principal;  within 
three  years  after  the  breach  thereof  complained  of. 

7.  An  action  against  bail;  within  three  years  after  judgment 
against  the  principal ;  but  bail  may  discharge  himself  by  a  surrender 
of  the  principal,  at  anv  time  before  final  judgnnent  against  tlie 
bail. 

8.  Eees  due  to  any  clerk,  sherift'  or  other  officer,  by  the  judgment 
of  a  court;  within  three  years  from  the  time  of  the  judgment  ren- 
dered, or  of  the  issuing  of  the  last  execution  therefor. 

9.  An  action  for  relief,  on  the  ground  of  fraud  or  mistake ;  the 
cause  of  action  shall  not  be  deemed  to  have  accrued  until  the  dis- 
covery by  the  aggrieved  party  of  the  facts  constituting  such  fraud 
or  mistake. 

10.  An  action  for  the  recovery  of  real  property  sold  for  the 
nonpayment  of  taxes,  within  three  years  after  the  execution  of  the 
sheriff's  deed. 

Code,  s.  155;  C.  C.  P.,  s.  34;  1895.  e.  165;   1S89,  cc.  269.  218;   1899,  c.  15,  s.  71  : 
1901,  c.  558,  s.  23. 
Note.     For  actions  against  bank  officers,  see  s.  378. 
In  bastardy,  see  Bastardy,  s.  260. 
For  action  for  recoveiy  of  land  sold  for  taxes,  see  s.  2912. 

396.  Two  years.   Within  two  years — 

1.  All  claims  against  the  several  counties,  cities  and  towns  of  this 
state,  whether  by  bond  or  otherwise,  shall  be  presented  to  the  chair- 
man of  the  board  of  county  commissioners  or  to  the  chief  officers 
of  said  cities  and  towns,  as  the  case  may  be,  within  two  years  after 
the  maturity  of  such  claims,  or  the  holders  of  such  claims  shall  \x 
forever  barred  from  a  recovery  thereof. 

2.  An  action  to  recover  the  jienalty  for  usury. 

Code,  ss.  756,  3836;   1874-5,  c.  243;   1876-7,  e.  91,  s.  3;   1895,  c.  69. 

Note.  For  statute  giving  personal  representatives  two  years  within  which  to 
settle,  see  ss.  144,  155. 

For  statute  regulating  conveyances  by  heir  or  devisee  within  two  years,  sec 
s.  70. 

For  right  of  way  of  railroad,  sec  ante  Five  Years   (1). 

For  action  on  apprentice's  bond,  see  s.  199. 

For  suit  for  redemption  of  land  sold  for  taxes,  see  s.  2913. 

397.  One  year.   Within  one  year— 

1.  An  action  against  a  sheriff,  coroner  or  constable,  or  other  public 
officer,  for  a  trespass  under  color  of  his  office. 


31)7  CIVIL  PKOCEDUEE— 7.  Lim.,  Other  than  Real  Pr.   Ch.  12 

2.  An  action  npon  a  statute,  for  a  penalty  or  forfeiture,  where 
tlie  action  is  given  to  the  state  alone,  or  in  whole  or  in  part,  to  the 
party  grieved,  or  to  a  conuuon  informer,  except  where  the  statute 
imposing  it  prescribes  a  different  limitation. 

3.  An  action  for  libel,  assault,  battery  or  false  imprisonment. 

4.  An  action  against  a  sheriff,  or  other  officer,  for  the  escape  of  a 
prisoner  arrested  or  imprisoned  on  civil  process. 

5.  An  application  for  a  widow's  year's  provision. 
Code,  s.  156;  C.  C.  P.,  s.  35;   1885,  c.  96. 

Note.  For  time  within  which  personal  representative  may  bring  action  for 
wrongful  death,  see  s.  59. 

For  minimum  limit  in  contract  of  insurance,  within  which  to  bring  suit, 
see  Insurance,  s.  4755. 

For  limit  of  time  for  creditors  to  present  claims  to  personal  representative, 
and  eflfect,  see  s.  94. 

398.  Six  months.   Within  six  months — 
An  action  for  slander. 

Code,  s.  157;  C.  C.  P.,  s.  36. 

Note.  Claim  against  decedent  disputed  by  personal  representative,  barred  in 
mx  months,  see  s.  93. 

399.  All  other  actions,  ten  years.  An  action  for  relief  not  herein 
jjrovided  for  must  be  commenced  within  ten  years  after  the  cause 
of  action  shall  have  accrued. 

Code,  s.  158;  C.  C.  P.,  s.  37. 


Note.     Actions  to  try  title  to  office,  ninety  days  after   induction  into   office, 
see  s.  834. 

VI.     Parties. 

400.  Real  party  in  interest;  actions  by  assignees.  Every  action 

must  be  prosecuted  in  the  name  of  tlie  real  party  in  interest,  except 
as  otherwise  provided ;  but  this  section  shall  not  be  deemed  to 
autliorize  the  assigimient  of  a  thing  in  action'  not  arising  out  of 
contract.  Bvit  an  action  may  be  maintained  by  a  grantee  of  real 
estate  in  his  own  name,  whenever  he  or  any  grantor  or  other  person 
through  whom  he  may  derive  title,  might  maintain  such  action, 
notwithstanding  the  grant  of  such  grantor  or  other  conveyance  be 
void,  by  reason  of  the  actual  possession  of  a  person  claiming  imder 
a  title  adverse  to  that  of  such  grantor,  or  other  person,  at  the  time 
of  the  delivery  of  such  grant  or  other  conveyance.  In  the  case  of 
an  assigimient  of  a  thing  in  action  the  action  by  the  assignee  shall 
be  without  prejudice  to  any  setoff  or  other  defense,  existing  at  the 
time  of,  or  before  notice  of,  the  assignment;  but  this  section  shall 
not  apply  to  a  negotiable  promissory  note  or  bill  of  exchange,  trans- 
ferred in  good  faith,  and  upon  good  consideration,  before  due. 
Code,  s.  177;  C.  C.  P.,  s.  55;   1874-5,  c.  256. 


401  CIVIL  PEOCEDURE— T/.  Parties.  Cb.   V2 

401 .  Who  may  sue  for  penalties.  Where  a  penalty  may  be  im- 
posed by  any  law  passed  or  hereafter  to  be  passed,  and  it  shall  not 
be  provided  to  what  person  the  penalty  is  given,  it  may  be  recovered 
by  any  one  who  will  sue  for  the  same,  and  for  his  own  use. 

Code,  s.  1212;  R.  C,  c.  35,  s.  47. 

402.  Suits  for  penalties  brought  in  name  of  state.   Whenever 

any  penalty  shall  lie  i;iven  by  statute,  and  it  is  not  prescribed  in 
whose  name  suit  therefor  may  be  commenced,  the  same  shall  be 
bronght  in  the  name  of  the  state. 

Code,  s.   1213;   R.  C,  c.  35,  s.  48. 

403.  Action  by  purchaser  under  judicial  sale.   Any  person  let 

into  possession  under  any  judicial  sale  confirmed,  where  the  title 
may  be  retained  as  a  security  for  the  price,  shall  be  deemed  the  legal 
owner  of  the  premises  for  all  purposes  of  bringing  suits  for  injuries 
thereto,  after  the  day  of  sale,  by  trespass  or  wrongful  jjossession 
taken  or  continued,  in  the  same  manner  as  if  the  title  had  been  con- 
veyed to  him  on  day  of  sale,  unless  restrained  by  some  order  of  the 
court  directing  the  sale;  and  the  suit  so  brought  shall  be  under  the 
control  of  the  court  ordering  the  sale. 

Code,   s.  942;    1858-9,  e.  50. 

404.  Action  by  executor  or  trustee.  An  e.xecutor  or  administra- 
tor, a  trustee  of  an  express  trust,  or  a  person  expressly  authorized 
by  statute,  may  sue  without  joining  with  him  the  person  for  whose 
benefit  the  action  is  prosecuted.  A  trustee  of  an  express  trust, 
within  the  meaning  of  this  section,  shall  be  construed  to  include  a 
person  with  whom,  or  in  whose  name,  a  contract  is  made  for  the 
benefit  of  another. 

Code,  s.  179;  C.  C.  P.,  s.  57. 

405.  Infants,  etc.,  sue  by  guardian  or  next  friend.    In  actions 

and  special  proceedings  whenever  any  of  the  parties  plaintiff  are 
infants,  idiots,  lunatics,  or  i^ersons  non  compos  mentis,  whether 
said  infants,  idiots,  lunatics  or  persons  non  compos  mentis,  be 
residents  or  nonresidents  of  this  state,  said  infants,  idiots,  luna- 
tics or  persons  non  compos  mentis  shall  appear  by  their  general  or 
testamentary  guardian,  if  they  have  any  within  the  state ;  but  if 
the  action  or  jiroceeding  be  against  such  guardian,  or  if  there  be  no 
such  guardian,  then  said  infants,  lunatics  or  persons  non  compos 
mentis  may  a])pear  by  their  next  friend:  Provided,  however,  that 
the  duty  of  the  state  solicitors  to  ]u-osecute  in  the  case  specified  in 
chapter  entitled  Guardian  shall  not  be  affected  by  the  provisions  of 
this  section. 

Code,  s.  180;   1893,  c.  5;  C.  C.  P.,  s.  58;   18701,  c.  233;   1871-2,  c.  95. 


406  CIVIL  PEOCEDUEE— FZ.  Parties.  Ch.  12 

406.  Infants,  etc.,  defend  by  guardian  ad  litem.   In  all  actions 

and  special  proceedings  whenever  any  of  the  defendants  are  infants, 
idiots,  lunatics,  or  persons  non  compos  mentis,  said  infants,  idiots, 
lunatics,  or  persons  non  compos  mentis,  shall  defend  by  their  gen- 
eral or  testamentary  guardian,  if  they  have  any  within  this  state, 
whether  said  infants,  idiots,  lunatics,  or  persons  non  compos  mentis, 
are  residents  or  nonresidents  of  this  state ;  and  if  said  infants,  idiots, 
lunatics,  or  persons  non  compos  mentis,  have  no  general  or  testa- 
mentary guardian  within  this  state,  and  any  of  the  defendants  in 
said  action  or  special  proceeding  shall  have  been  summoned,  then  it 
shall  be  lawful  for  the  court,  wherein  said  action  or  special  proceed- 
ing is  pending,  upon  motion  of  anj'  of  the  parties  to  the  said  action, 
or  special  proceeding,  to  appoint  some  discreet  person  to  act  as 
guardian  ad  litem,  to  defend  in  behalf  of  such  infants,  idiots,  luna- 
tics, or  persons  non  compos  mentis,  and  such  guardian  so  appointed 
shall,  if  the  cause  in  which  he  is  appointed  be  a  civil  action,  file 
his  answer  to  the  complaint  within  the  time  required  for  other 
defendants,  unless  such  time  be  extended  by  the  court  for  good  cause, 
and  if  the  cause  in  which  he  is  so  appointed  be  a  special  proceeding, 
a  copy  of  the  complaint,  with  the  summons,  shall  be  served  on  said 
guardian  ad  litem,  and  after  twenty  days'  notice  of  said  summons 
and  complaint  in  such  special  proceeding,  and  after  answer  filed  as 
above  prescribed  in  such  civil  action,  the  court  may  proceed  in  the 
caiTse  to  final  judgment,  and  decree  therein  in  the  same  manner  as 
if  there  had  been  personal  service  upon  the  said  infant,  idiot,  lunatic, 
or  person  non  compos  mentis,  defendants,  and  any  decree  or  judg- 
ment in  the  case  shall  conclude  the  infant,  idiot,  lunatic,  or  person 
non  compos  mentis,  defendants,  as  effectually  as  if  he  or  they  had 
been  personally  summoned. 

Code,  s.  181:  C.  C.  P.,  3.  59;  1870-1,  c.  233,  s.  5;   1871-2,  c.  95,  s.  2. 

Note.     See  Rule  17  of  Superior  Court. 

407.  Guardian  ad  litem  to  file  answer.  Whenever  any  guardian 
ad  litem  shall  be  appointed,  he  shall  file  an  answer  in  said  action 
or  special  proceeding,  admitting  or  denying  the  allegations  thereof; 
the  costs  and  expenses  of  which  said  answer,  in  all  applications  to 
sell  or  divide  the  real  estate  of  said  infants,  shall  be  paid  out  of  the 
proceeds  of  the  property,  or  in  case  of  a  division,  shall  be  charged 
upon  the  land,  if  the  sale  or  division  shall  be  ordered  by  the  court, 
and  if  not  ordered  in  any  other  manner  the  court  shall  direct. 

Code,   s.   182;    1870-1,  c.  233,   s.  4. 

408.  Married  women.  When  a  married  woman  is  a  party,  her 
husband  must  be  joined  with  her  except  that — 

1.   When  the  action  concerns  her  separate  property,  she  may  sue 


408  CIVIL  PROCEDURE— T/.  Parties.  Cli.  12 

2.  When  the  action  is  between  herself  and  her  husband,  she  may 
sue  or  be  sued  alone. 

And  in  no  case  need  she  prosecute  or  defend  by  a  guardian  or  next 
friend. 

Code,  s.  178;  C.  C.  P.,  s.  56. 

409.  Who  may  be  plaintiffs.  All  persons  having  an  interest  in 
the  subject  of  the  action,  and  in  obtaining  the  relief  demanded,  may 
be  joined  as  plaintiffs  except  as  otherwise  provided. 

Code,  s.   183;   C.  C.   P.,   s.   60. 

410.  Who  may  be  defendants.  Any  person  may  be  made  a 
defendant  who  has,  or  claims,  an  interest  in  the  controversy  adverse 
to  the  plaintiff,  or  who  is  a  necessary  party  to  a  complete  determina- 
tion or  settlement  of  the  questions  involved  therein ;  and  in  an  action 
to  recover  the  possession  of  real  estate,  the  landlord  and  tenant 
thereof  may  be  joined  as  defendants ;  and  any  person  claiming  title 
or  right  of  possession  to  I'eal  estate  may  be  made  party  plaintiff  or 
defendant,  as  the  case  may  require,  to  any  such  action. 

Code,  s.  184;  C.  C.  P.,  s.  61. 

411.  Several  parties,  how  classed;  action  by  one  for  a  class. 

Of  the  parties  to  the  action,  those  who  are  united  in  interest  must 
be  joined  as  plaintiff's  or  defendants;  but  if  the  consent  of  any 
one  who  should  have  been  joined  as  plaintiff  can  not  be  obtained,  he 
may  be  made  a  defendant,  the  reason  thereof  being  stated  in  the 
complaint ;  and  when  the  question  is  one  of  a  common  or  general 
interest  of  many  persons,  or  where  the  parties  may  be  very  numer- 
o\is,  and  it  may  be  impracticable  to  bring  them  all  liefore  the  court, 
one  or  more  may  sue  or  defend  for  the  benefit  of  the  whole. 
Code,  s.  185;  C.  C.  P.,  s.  62. 

412.  Persons  severally  liable,  suit  against.    Persons  severally 

liable  upon  the  same  obligation  or  instriuneut,  including  the  parties 
to  bills  of  exchange  and  promissory  notes,  may  all  or  any  of  them  be 
included  in  the  same  action  at  the  option  of  the  jdaintiff. 
Code,  s.  186;  C.  C.  P.,  s.  63. 

413.  Persons  jointly  liable,  suits  against.    In  all  cases  of  joint 

contracts  of  copartners  in  trade  or  others,  suit  may  be  brought  and 
prosecuted  on  the  same  against  all,  or  any  number  of  the  ])ersons 
making  saich  contracts. 

Code,  s.  187;  P,.  C,  c.  31,  s.  84;   1871-2,  e.  24,  s.   1. 

414.  New  parties  by  order  of  court;  interpleader.    Tlie  court 

either  between  llie  terms,  or  at  a  regular  term,  acccu-ditig  to  the  nature 

110 


414  CIVIL  PROCEDUEE— TT.  Parties.  Ch.   12 

of  the  controversy,  may  determine  any  controversy  before  it,  when 
it  can  be  done  without  prejudice  to  the  rights  of  others,  or  by  saving 
their  righ.ts;  but  when  a  complete  determination  of  the  controversy 
can  not  be  had  without  the  presence  of  other  parties,  the  court  must 
cause  them  to  be  brought  in.  And  when  in  an  action  for  the  recovery 
of  real  or  personal  property,  a  person  not  a  party  to  the  action,  but 
having  an  interest  in  tlie  subject  matter  thereof,  malies  application 
to  the  court  to  be  made  a  party,  it  may  order  him  to  be  brought  in 
by  the  proper  amendment.  A  defendant  against  whom  an  action 
is  pending  upon  a  contract  or  for  specific  real  or  personal  property, 
upon  proof  by  affidavit  that  a  person  not  a  party  to  the  action  makes 
a  demand  against  him  for  the  same  debt  or  property  without  collu- 
sion with  him,  may  at  any  time  before  answer  apply  to  the  court, 
upon  notice  to  that  person  and  fhe  adverse  party,  for  an  order  to 
substitute  that  person  in  his  place,  and  to  discharge  him  from  lia- 
bility to  either,  on  his  paying  into  court  the  amount  of  the  debt, 
or  delivering  the  possession  of  the  property  or  its  value  to  such 
person  as  the  court  shall  direct.  The  court,  in  its  discretion,  may 
make  such  an  order. 

Code,  e.  189 ;  C.  C.  P.,  s.  65. 

Note.     For  intervention  in  claim  and  delivery,  see  s.  800. 

For  intervention  in  attachment,   see  s.  789. 

415.  Abatement  of  actions,  l.  No  action  shall  abate  by  the 
death,  marriage  or  other  disability  of  a  party,  or  by  the  transfer  of 
any  interest  therein,  if  the  cause  of  action  survive  or  continue.  In 
case  of  death,  except  in  suits  for  penalties,  and  for  damages  merely 
vindictive,  marriage  or  other  disability  of  a  party,  the  court,  on 
motion  at  any  time  within  one  year  thereafter,  or  afterwards  on  a 
supplemental  complaint,  may  allow  the  action  to  be  continued,  by, 
or  against,  his  representative  or  successor  in  interest.  In  case  of 
any  other  transfer  of  interest,  the  action  shall  be  continued  in  the 
name  of  the  original  party,  or  the  court  may  allow  the  person  to 
whom  the  transfer  is  made,  to  be  substituted  in  the  action. 

2.  After  a  verdict  shall  be  rendered  in  any  action  for  a  wrong, 
such  action  shall  not  abate  by  the  death  of  a  party. 

3.  At  any  time  after  the  death,  marriage,  or  other  disability  of 
the  party  plaintifl^,  the  court  in  which  an  action  is  pending,  iipon 
notice  to  such  persons  as  it  may  direct,  and  upon  application  of  aay 
person  aggTieved,  may,  in  its  discretion,  order  that  the  action  be 
deemed  abated^  unless  the  same  be  continued  by  the  proper  parties, 
within  a  time  to  be  fixed  by  the  court,  not  less  than  six  months,  nor 
exceeding  one  year  from  the  granting  of  the  order. 

4.  i^o  action  against  a  receiver  of  a  corporation  shall  abate  by 
reason  of  his  death,  but,  upon  suggestion  of  the  facts  on  the  record, 


415  CIVIL  PROCEDURE— IT.  Partks.  Ch.   12 

shall  be  coutinued  against  his  successor,  or  agaiust  the  corporatiini 
in  case  no  new  receiver  be  appointed. 

Code,  s.  188:  1901.  c.  2.  s.  85;  C.  C.  P.,  s.  04;  R.  C.  c.  1,  s.  4;  c.  40.  s.  43. 

416.  Death  of  party  suggested  before  clerk.    Whenever  any 

party   to   any   action    in   the   superior   court    shall    die   pending   the 
action,  the  death  of  such  party  may  be  suggested  before  the  clerk 
of  the  superior  court  where  the  action  is  pending  during  vacation. 
1887,  c.  389. 

417.  Clerk  to  summon  party  succeeding  to  rights  or  liabilities; 

answer.  When  the  suggestion  of  the  death  of  a  party  has  been  made 
before  any  clerk,  it  shall  be  the  duty  of  such  clerk  to  issue  a  sum- 
mons to  the  party  who  succeeds  to  the  rights  or  liabilities  of  the 
defendant  commanding  him  to  appear  before  him  on  a  day  to  be 
named  in  said  summons,  which  shall  be  at  least  twenty  days  after 
the  service  thereof,  and  answer  the  complaint,  and  the  issue  joined 
by  the  filing  of  the  said  answer  shall  stand  for  trial  at  the  term 
of  the  superior  court  next  following. 
1887,  c.  389,  9.  2. 

418.  Clerk  to  notify  party  succeeding  to  rights  of  deceased 

plaintiff.   When  the  plaintiil  shall  die  and  the  suggestion  of  the  death 

of  a  party  is  made,  it  shall  be  the  duty  of  the  clerk  before  whom  tlie 

suggestion  is  made  to  issue  a  notice  to  the  party  succeeding  to  the 

rights  of  party  deceased  who  will  be  necessary  to  the  pro.secution 

of  the  action  to  final  judgment  to  appear  and  become  party  plaintiff, 

and  in  the  event  the  party  made  plaintiff  shall  file  an  amended  com- 

jjlaint,  then  the  defendant  shall  have  twenty  days  after  notice  of  the 

amended  complaint  being  filed  in  which  to  file  an  answer  thereto, 

and  the  issue  thus  made  up  .shall  stand  for  trial  at  the  succeeding 

term. 

1887,  c.  389,  s.  3. 

Note.     For  substitution  of  administrator  d.  1>.  n.,  sec  s.  154. 


Note.  State  is  plaintiff  in  actions  on  oflicial  bonds  and  securities,  see  ss. 
280,  281. 

VII.     Venue. 

.419.  Place  of  subject  of  action.  Actions  for  the  following  causes 
must  be  tried  in  the  county  in  which  the  subject  of  the  action,  or 
some  part  thereof,  is  situated,  subject  to  the  power  of  the  court  to 
change  the  place  of  trial,  in  the  cases  provided  by  law: 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or  interest 
therein,  or  for  the  determination  in  any  form  of  such  right  or  inter- 
est, and  for  injuries  to  real  property. 


419  CIVIL  PEOCEDUEE— T7/.   Venue.  Ch.  12 

2.  For  the  partition  of  real  property. 

3.  For  tlie  foreclosure  of  a  mortgage  of  real  property. 

4.  For  the  recovery  of  personal  property. 

Code,  s.   190;    1889.  e.  219;   C.  C.  P.,  s.  66. 

Note.     For  venue  in  partition  proceedings,  see  s.  2486. 

420.  Where  cause  of  action  arose.  Actions  for  the  following 

causes  must  be  tried  in  the  county  where  the  cause,  or  some  part 
thereof,  arose,  subject  to  the  like  power  of  the  court  to  change  the 
place  of  trial,  in  the  cases  provided  by  law : 

1.  For  the  recovery  of  a  penalty  or  forfeiture,  imposed  by  statute ; 
except  that,  when  it  is  imposed  for  an  offense  committed  on  a  sound, 
bay,  river,  or  other  body  of  water,  situated  in  two  or  more  counties, 
the  action  may  be  brought  in  any  county  bordering  on  such  soimd, 
bay,  river,  or  other  body  of  water,  and  opposite  to  the  place  where 
the  offense  was  committed. 

2.  Against  a  public  officer  or  person  especially  appointed  to  exe- 
cute his  duties,  for  an  act  done  by  him  by  virtue  of  his  office;  or 
against  a  person  who  by  his  command  or  in  his  aid,  shall  do  anything 
touching  the  duties  of  such  officer. 

Code,  s.   191;   C.  C.  P.,  s.  67. 

421.  Official  bonds,  executors  and  administrators.   All  actions 

upon  official  bonds  or  against  executors  and  administrators  in  their 
official  capacity  shall  be  instituted  in  the  county  where  the  bonds 
shall  have  been  given,  if  the  principal  or  any  of  the  sureties  on  the 
bond  is  in  the  county ;  if  not,  then  in  the  plaintiff's  county. 
Code,  s.  193;   1868-9,  e.  258. 

422.  Domestic  corporations.  For  the  purpose  of  suing  and 
Ix'iiig  suimI  thf  jirincipal  place  of  business  of  a  domestic  corporation 
shall  be  its  residence. 

1903,  c.  806. 

423.  Foreign  corporations.  An  action  against  a  corporation 
created  by  or  under  the  laws  of  any  other  state,  government,  or 
country,  may  be  brought  in  the  superior  court  of  any  county  in 
which  the  cause  of  action  arose,  or  in  which  it  usually  did  business, 
or  in  which  it  has  property,  or  in  which  the  plaintiffs,  or  either  of 
them,  shall  reside,  in  the  following  cases : 

1.  By  a  resident  of  this  state,  for  any  cause  of  action. 

2.  By  a  plaintiff,  not  a  resident  of  this  state,  when  the  cause  of 
action  shall  have  arisen,  or  the  subject  of  the  action  shall  be  situated 
within  this  state. 

Code,  s.  194:  C.  C.  P.,  s.  361 ;  1S76-7,  c.  170. 


424  CIVIL  PEOCEDURE— F/7.   Venue.  Ch.   12 

424.  Where  plaintiff  or  defendant  resides;  where  neither  is 

resident,  in  all  other  cases  the  action  shall  be  tried  in  the  county  in 
which  the  plaintiffs  or  the  defendants,  or  any  of  them,  shall  reside 
at  the  commencement  of  the  action ;  or  if  none  of  the  defendants  shall 
reside  in  the  state,  then  in  the  county  in  which  the  plaintiffs,  or  any 
of  them,  shall  reside ;  and  if  none  of  the  parties  shall  reside  within 
the  state,  then  the  same  may  be  tried  in  any  couiity  which  the 
plaintiff  shall  designate  in  his  summons  and  complaint,  siibject, 
however,  to  the  power  of  the  court  to  change  the  place  of  trial,  in 
the  cases  provided  bj'  statute :  Provided,  that  in  all  actions  against 
railroads  the  action  shall  be  tried  either  in  the  county  where  the  cause 
of  action  arose  or  in  the  county  where  the  plaintiff  resided  at  the  time 
the  cause  of  action  arose,  or  in  some  county  adjoining  the  county  in 
which  the  cause  of  action  arose,  subject,  however,  to  the  power  of  the 
court  to  change  the  place  of  trial  in  the  cases  provided  by  statute. 

Code,  s.  192;  C.  C.  P.,  s.  68;   1868-9,  ce.  59,  277;  1905.  c.  367. 

425.  Change  of.  If  the  county  designated  for  that  piu'pose  in 
the  summons  and  complaint  be  not  the  ]jroper  county,  the  action 
may,  notwithstanding,  be  tried  therein,  unless  the  defendant,  before 
the  time  of  answering  expires,  demand  in  writing  that  the  trial  be 
had  in  the  proper  county,  and  the  place  of  trial  be  thereupon  changed 
by  consent  of  parties,  or  by  order  of  the  court. 

The  court  may  change  the  place  of  trial  in  the  following  cases: 

1.  When  the  county  designated  for  that  jDurpose  is  not  the  proper 
county. 

2.  When  the  convenience  of  witnesses  and  the  ends  of  justice 
would  be  promoted  by  the  change. 

3.  When  the  judge  shall  have  been,  at  any  time,  interested  as 
party  or  counsel. 

Code,  s.  195;  C.  C.  P.,  s.  69;  R.  C  c.  31,  sr.  115.  118;   1870  1.  e.  20. 

426.  Removal  for  fair  trial.  In  all  civil  and  criminal  actions  in 
the  superior  and  criminal  courts,  in  which  it  shall  be  suggested  on 
oath,  or  by  affirmation,  on  behalf  of  the  state,  or  the  traverser  of 
the  bill  of  indictment,  or  of  the  plaintiff  or  defendant,  that  there 
are  probable  grounds  to  believe  that  a  fair  and  impartial  trial  can 
not  be  obtained  in  the  county  in  which  the  action  shall  be  pending, 
the  judge  shall  be  authorized  to  order  a  copy  of  tlic  record  of  said 
action  to  be  removed  to  some  adjacent  coimty  for  trial,  if  he  sliall 
be  of  the  opinion  that  a  fair  trial  can  not  be  had  in  said  county, 
after  hearing  all  the  testimony  which  may  be  offered  on  either  side 
by  affidavits. 

Code,  s.  196;   1879,  c.  45;   1899,  cc.  104,  .508;   1806,  c.  693.  s.  12. 


427  CIVIL  PROCEDUEE— IT/.   Venue.  Ch.  12 

427.  Affidavits  and  counter  affidavits;  shall  remove,  when.  Xo 

action,  •\vlietliei'  civil  or  criniiiia],  sliall  be  so  removed,  unless  the 
affidavit  shall  set  forth  particularly  and  in  detail  the  ground  of  the 
application.  And  it  shall  be  competent  for  the  other  side  to  contro- 
vert the  allegations  of  fact  in  said  application,  and  to  offer  counter 
affidavits  to  that  end.  And  the  judge  shall  order  the  removal  of 
any  such  action,  if  he  shall  be  satisfied  after  thorough  examination 
of  the  evidence  as  aforesaid  that  the  ends  of  justice  demand  it. 

Code,  s.   197;   1879,  c.  45;    1899,  c.  104,  s.  2. 

428.  Transcript  on  removal;  subsequent  proceedings.  When  a 

cause  shall  be  directed  to  be  removed,  the  clerk  shall  transmit  to  the 
court  to  which  the  same  is  removed  a  transcript  of  the  record  of 
the  case,  with  the  prosecution  bond,  bail  bond,  and  the  depositions, 
and  all  other  written  evidences  filed  therein ;  and  all  other  proceed- 
ings shall  be  had  in  the  county  to  which  the  place  of  trial  is  changed, 
imless  otherwise  provided  by  the  consent  of  the  parties  in  writing 
duly  filed,  or  by  order  of  court. 

Code,  ss.  195,  198;  R.  C,  c.  31,  s.  118;  1806,  c.  694,  s.  12;  1810,  c.  787; 
C.  C.  P.,  s.  69. 

VIII.     Summons. 

429.  Civil  actions  commenced  by.  Civil  actions  shall  be  com- 
menced by  issuing  a  summons ;  but  no  summons  need  issue  in  contro- 
versies submitted  without  action,  and  in  confessions  of  judgment 
without  action. 

Code,  s.  199;  C.  0.  P.,  s.  70. 

Note.     See  ss.  580,  80.3,  and  Hervey  v.  Edmunds.  68  N.  C.  243. 

430.  What  to  contain;  w/here  returnable.   The  summons  shall 

run  in  the  name  of  the  state,  be  signed  by  the  clerk  of  the  superior 
court  having  jurisdiction  to  try  the  action,  and  shall  be  directed  to 
the  sheriff  or  other  proper  officer  of  the  county  in  which  any  defend- 
ant resides  or  may  be  found.  It  shall  be  returnable  to  the  regular 
term  of  the  superior  court  of  the  county  from  which  it  issued ;  and 
shall  command  the  sheriff,  or  other  proper  officer,  to  summon  the 
defendant  to  appear  at  the  next  ensuing  term  of  the  siiperior  court 
and  answer  the  complaint  of  the  plaintiff;  and  shall  contain  a  notice 
stating  in  substance  that  if  the  defendant  shall  fail  to  answer  the 
complaint  within  the  time  specified,  the  plaintiff  will  apply  to  the 
court  for  the  relief  demanded  in  the  complaint;  and  shall  be  dated 
on  the  day  of  its  issue. 

Code,  ss.  200,  213;   C.  C.  P.,  74;    1876-7,  cc.  85.  241. 
Note.     See  s.  106. 


431  CIVIL  PROCEDURE— T7//.  Summons.  Ch.   12 

431.  When  attested  by  seal.  Every  summons  addressed  to  the 
sheriii"  or  other  officer  of  any  county,  other  than  that  from  which  it 
issued,  shall  be  attested  by  the  seal  of  the  court;  but  when  it  shall 
be  addressed  to  the  sheriff  or  other  officer  of  the  county  in  which  it 
issued,  it  shall  not  be  attested  by  the  seal  of  the  court. 

Code,  s.  203;   1876-7,  c.  85,  s.  4. 

432.  Issued  to  several  counties.  The  plaintiff  may  issue  a  sum- 
mons, directed  to  the  sheriff'  of  any  county  where  a  defendant  is 
most  likely  to  be  found,  noting  on  each  summons  that  it  is  issued  in 
the  same  action ;  and  when  the  said  svmimons  is  returned,  it  shall  be 
docketed  as  if  only  one  had  issued ;  and  if  any  defendant  shall  not 
be  served  with  such  process,  the  same  proceeding  shall  be  had  as 
in  other  cases  of  similar  process  not  executed. 

Code,  s.  204;   R.  C,  c.  31,  s.  44;   1789,  c.  314,  ss.  1,  2;   1831,  c.   14,  s.  2. 

433.  When  officer  shall  execute  and  return.   The  officer  to  whom 

the  summons  is  addressed  shall  note  on  it  the  day  of  its  delivery 
to  him,  and  shall  execute  it  at  least  ten  days  before  the  beginning 
of  the  term  to  which  it  shall  be  returnable,  and  shall  return  it  by  the 
first  day  of  the  term. 
Code,  s.  200;   1876-7,  c.  85. 

434.  When  issued  within  ten  days  of  term.   If  any  summons 

.shall  be  issued  within  less  than  ten  days  of  the  beginning  of  the 
next  term  of  the  superior  court  for  the  county  in  which  it  is  issued, 
it  shall  be  made  returnable  to  the  second  term  of  said  court  next 
after  the  date  of  its  issuing,  and  shall  be  executed  and  returned  by 
the  proper  officer  accordingly. 
Code,  s.  201 ;   1876-7,  c.  85,  s.  2. 

435.  Issued  more  than,  served  within,  ten  days  of  term.  When 

the  summons  shall  be  issued  more  than  ten  days  before  the  next 
succeeding  term-  of  the  superior  court  of  the  county  to  which  it  is 
returnable,  and  shall  be  executed  by  the  proper  officer  within  less 
than  ten  days  of  said  term,  it  shall  he  returned  as  if  executed  in 
proper  time,  and  the  case  placed  on  the  sinnmons  docket  and  con- 
tinued to  the  next  succeeding  term,  at  which  term  it  shall  be  treated 
in  all  respects  as  if  said  next  succeeding  term  had  been  the  return 
term  thereof.  But  the  parties  to  the  action  may,  by  agreement, 
make  up  the  pleadings  at  the  term  to  which  the  summons  is  return- 
able. Nothing  herein  contained  shall  be  construed  to  release  or 
discharge  the  sheriff  or  other  officer  from  any  liability  he  may 
incur  by  failing  to  execute  the  summons  in  due  time. 
Code,  s.  202;   1876-7,  e.  85,  s.  3. 


436  CIVIL  PKOCEDUEE— y///.  Summons.  Ch.   12 

436.  When  summons  returned  to  second  term.   Whenever  it 

shall  be  neces^arv  to  serve  suiniiions,  warrant  of  attachment,  or  other 
process  by  publication,  and  it  shall  appear  that  in  order  to  make 
publication  for  the  number  of  weeks  required  by  law  sufficient  time 
will  not  elapse  between  the  order  of  publication  and  the  term  of 
court  next  succeeding  the  order,  then,  in  all  such  cases,  it  shall  not 
be  necessary  to  make  the  summons,  warrant  of  attachment,  or  other 
process  returnable  to  the  term  of  court  next  succeeding,  but  it  shall 
be  lawful  for  the  judge  or  clerk  to  direct  that  the  summons,  warrant 
of  attachment,  or  other  process  shall  be  returnable  to  such  other  terra 
of  court,  thereafter  to  be  held,  as  will  allow  the  simimons,  warrant 
of  attachment,  or  other  process  to  be  published  for  the  number  of 
weeks  required  by  law  so  that  the  publication  may  be  completed 
before  the  term  of  court  to  which  such  summons,  warrant  of  attach- 
ment, or  other  process  shall  be  returnable. 
1903,  c.  169. 

437.  Alias  and  pluries.  When  the  defendant  in  a  civil  action  or 
special  proceeding  is  not  served  with  summons  within  the  time  within 
which  the  summons  is  returnable,  the  plaintiff  may  sue  out  an  alias 
or  pluries  summons,  returnable  in  the  same  manner  as  original  pro- 
cess. 

Code,  s.  205;   R.  C,  c.  31,  s.  52;   1777,  c.  115,  ss.  23,  71. 

438.  Discontinuance.  A  failure  to  keep  up  the  chain  of  sum- 
monses issued  against  a  party,  but  not  served,  by  means  of  an  alias 
or  i>luries  summons,  is  a  discontinviance  as  to  such  party;  and  if 
a  summons  is  served  after  a  break  in  the  chain,  it  is  a  new  action 
as  to  such  party,  begnin  when  such  summons  was  issued. 

See  Koonce  v.  Pelletier,  115  N.  C.  R.,  233. 

439.  Served  by  reading.  The  summons  shall  be  served  in  all 
cases,  except  as  hereinafter  provided,  by  the  sheriff  or  other  officer 
reading  the  same  to  the  party  or  parties  named  as  defendant,  and 
such  reading  shall  be  a  legal  and  sufficient  service. 

Code,  s.  214;   1876-7.  e.  241. 

Note.     For  statute  forbidding  service  on  Sunday,  see  s.  2837. 

440.  Served   by   copy;   corporations;    infants;    persons   non 

compos.   The  summons  shall  be  served  by  delivering  a  eojiv  thereof 
in  the  following  cases : 

1.  If  the  action  be  against  a  corporation,  to  the  president  or  other 
head  of  the  corporation,  secretary,  cashier,  treasurer,  director,  man- 
aging or  local  agent  thereof:  Provided,  that  any  person  receiving 
or  collecting  moneys  within  this  state  for,  or  on  behalf  of,  any  cor- 
poration of  this  or  any  other  state  or  government,  shall  be  deemed 

117 


440  CIVIL  PEOCEDURE— FZ/7.  Summons.  Ch.   12 

a  local  agent  for  the  purpose  of  this  section ;  but  such  service  can  be 
made  in  respect  to  a  foreign  corporation  only  when  it  has  property 
within  this  state,  or  the  cause  of  action  arose  therein,  or  when  the 
plaintiff  resides  in  the  state,  or  when  such  service  can  be  made  within 
the  state,  personally  upon  the  president,  treasurer  or  secretary 
thereof. 

Note.  For  service  on  foreign  corporations  by  service  on  local  process  agent, 
see  Corporations,  s.  1243,  and  Insurance. 

Foi'  service  on  corporation  for  forfeiture  of  charter,  see  Corporations,  s.  1199. 

2.  If  against  a  minor  under  the  age  of  fourteen  years,  to  such 
minor  personally,  and  also  to  his  father,  mother  or  guardian,  or  if 
there  be  none  within  the  state,  then  to  any  person  having  the  care 
and  control  of  such  minor,  or  with  whom  he  shall  reside,  or  in  whose 
service  he  shall  be  employed. 

3.  If  against  a  person  judicially  declared  to  be  of  unsound  mind, 
or  incapable  of  conducting  his  own  affairs  in  consequence  of  habitual 
drunkenness,  and  for  whom  a  committee  or  guardian  has  been 
appointed,  to  such  committee  and  to  the  defendant  personally:  Pro- 
vided, that  if  the  superintendent  of  an  insane  asylum,  or  the  acting 
superintendent  of  such  asylum,  shall  inform  the  sheriff  or  other 
officer  who  is  charged  with  the  duty  of  serving  a  summons  or  other 
judicial  process,  or  notice,  on  any  insane  person  confined  in  such 
asylum,  that  the  summons,  or  process,  or  notice,  can  not  be  served 
without  danger  of  injury  to  such  insane  person,  it  shall  be  suffi- 
cient for  such  officer  to  return  said  summons,  process,  or  notice, 
without  actual  service  on  the  insane  person,  but  with  an  endorsement 
that  it  was  not  personally  served  because  of  such  information ;  and 
when  an  insane  person  shall  be  confined  in  a  common  jail  it  shall  be 
sufficient  for  an  officer  charged  with  service  of  a  notice,  summons, 
or  other  judicial  process,  to  return  the  same  with  the  endorsement 
that  it  was  not  served  because  of  similar  information  as  to  the 
danger  of  service  on  such  insane  person  given  by  the  physician  of 
the  county  in  which  said  jail  is  situated. 

Code,  s.  217;   1889,  c.  89;  C.  C.  P.,  s.  82;  1874-5,  c.  ICS.   ' 

441 .  Irregular  service  on  infants,  etc.,  validated,  in  any  and  all 

civil  actions  and  special  proceedings  pending  on  the  fourteenth  day 
of  March,  one  thousand  eight  hundred  and  seventy-nine,  or  thereto- 
fore determined,  in  any  of  the  courts,  wherein  any  or  all  of  the 
defendants  were  infants,  idiots,  lunatics  or  persons  non  compos 
mentis,  on  whom  there  was  no  personal  service  of  the  summons,  the 
proceedings,  actions,  decrees  and  judgments  taken,  had  and  made 
by  such  courts  in  such  civil  actions  and  special  proceedings  shall  be 
valid,  effectual  and  binding  against  and  upon  such  infants,  idiots. 


441  CIVIL  PEOCEDURE— y///.  Summons.  Ch.   12 

lunatics  and  persons  non  compos  mentis,  and  their  rights  and  estates 
in  like  manner,  as  if  they  had  been  personally  served  with  a  sum- 
mons therein:  Provided,  that  this  section  shall  not  have  the  effect, 
nor  be  construed,  to  prevent  any  of  the  proceedings,  actions,  jiidg- 
ments  or  decrees  hereby  rendered  regular  and  confirmed,  from  being 
impeached  and  set  aside  for  fraud. 

Code,  s.  387;    1879,  c.   257;    1880,  c.  23. 

442.  Served  by  publication.  Where  the  person  on  whom  the  serv- 
ice of  the  summons  is  to  be  made  can  not,  after  due  diligence,  be 
found  within  the  state,  and  that  fact  appears  by  aiEdavit  to  the  satis- 
faction of  the  court,  or  to  a  judge  thereof,  and  it  in  like  manner 
appears  that  a  caiise  of  action  exists  against  the  defendant  in  respect 
to  whom  service  is  to  be  made,  or  that  he  is  a  proper  party  to  an 
action  relating  to  real  property  in  this  state,  such  coxirt  or  judge 
may  grant  an  order  that  the  service  be  made  by  publication  of  a 
notice  in  either  of  the  following  cases: 

1.  Where  the  defendant  is  a  foreign  corporation,  and  has  property 
within  the  state,  or  the  cause  of  action  arose  therein. 

2.  Where  the  defendant,  being  a  resident  of  this  state,  has  departed 
therefrom,  with  intent  to  defraud  his  creditors,  or  to  avoid  the  service 
of  a  summons,  or  keeps  himself  concealed  therein. 

3.  A\Tiere  he  is  not  a  resident  of  this  state,  but  has  property 
therein,  and  the  court  has  jurisdiction  of  the  subject  of  the  action. 

4.  Where  the  subject  of  the  action  is  real  or  personal  property  in 
this  state,  and  the  defendant  has,  or  claims  a  lien  or  interest,  actual 
or  contingent,  therein,  or  the  relief  demanded  consists  wholly  or 
partly  in  excluding  the  defendant  from  any  lien  or  interest  therein. 

5.  \^^iere  the  action  is  for  divorce,  and  in  all  cases  where  publica- 
tion is  made,  the  complaint  must  be  filed  before  the  expiration  of 
the  time  of  publication  ordered. 

6.  Where  the  stockholders  of  any  corporation  are  deemed  to  be 
necessary  parties  to  an  action  and  their  names  or  residences  are  un- 
known ;  or  where  the  names  or  residences  of  parties  interested  in  real 
estate  the  subject  of  an  action  are  unknown,  if  the  name  of  at  least 
one  of  the  parties  to  the  action  and  interested  in  the  subject  matter 
thereof  shall  be  known,  and  he  be  a  resident  of  the  state,  the  court 
having  jurisdiction  may,  upon  affidavit  that  after  due  diligence  the 
names  or  residences  of  such  parties  can  not  be  ascertained,  authorize 
service  by  publication. 

7.  Where  in  actions  for  the  foreclosure  of  mortgages  on  real  estate, 
if  any  party  having  any  interest  in,  or  lien  upon,  such  mortgaged 
premises,  is  unknown  to  the  plaintiff,  and  the  residence  of  such  party 
can  not,  with  reasonable  diligence,  be  ascertained  by  him,  and  such 
fact  shall  be  made  to  appear  by  affidavit. 


442  CIVIL  PROCEDUEE— TY/Z.  Summons.  Ch.  12 

8.  Where  no  officer  or  agent  of  a  domestic  corporation  upon  whom 
service  can  be  made  can,  after  due  diligence,  be  found  within  the 
state,  and  such  facts  be  made  to  appear  by  affidavit.  This  subsec- 
tion shall  also  apply  to  all  summonses,  orders  to  show  cause,  orders 
and  notices  issued  by  any  board  of  aldermen,  board  of  town  or 
county  commissioners  or  by  individuals. 

Code,  ss.  218,  221;  18S5,  c.  380;  1889,  cc.  108,  263;  1895,  c.  334. 

443.  Manner  of  publication.  The  order  must  direct  the  publica- 
tion in  any  one  or  two  newspapers  to  be  designated  as  most  likely 
to  give  notice  to  the  person  to  be  served,  and  for  such  length  of  time 
as  may  be  deemed  reasonable,  not  less  than  once  a  week  for  four 
weeks,  of  a  notice,  giving  the  title  of  the  action,  the  purpose  of  the 
same,  and  requiring  the  defendant  to  appear  and  answer,  or  demur  to 
the  complaint  at  a  time  and  j)lace  therein  mentioned ;  and  no  publi- 
cation of  the  summons,  nor  mailing  of  the  summons  and  complaint, 
shall  be  deemed  necessary.  The  cost  of  publishing  in  a  newspaper 
shall  not  exceed  one  dollar  and  fifty  cents  an  inch  of  solid  type,  and 
shall  in  no  case  exceed  six  dollars  for  the  notice. 

Code,  s.  219;    1903,  c.   134;   C.  C.  P.,  c.  84;    1876-7,  c.  241,  s.  3. 

444.  When  service  complete.  In  the  cases  in  which  service  by 
publication  is  allowed,  the  summons  shall  be  deemed  served  at  the 
expiration  of  the  time  prescribed  by  the  order  of  publication,  and 
the  party  shall  then  be  in  court. 

Code,  s.  227;  C.  C.  P.,  s.  88. 

445.  Jurisdiction  acquired  from  service.  From  the  time  of  serv- 
ice of  the  summons  in  a  civil  action,  or  the  allowance  of  a  provi- 
sional remedy,  the  court  is  deemed  to  have  acquired  jurisdiction,  and 
to  have  control  of  all  subsequent  proceedings. 

Code,  s.  229;   C.  C.  P.,  s.  90. 

446.  Proof  of  service.  Proof  of  the  service  of  the  sununons  or 
notice  must  be — 

1.  By  the  certificate  of  the  sheriff  or  other  proper  officer. 

2.  In  case  of  publication,  the  affidavit  of  the  printer,  or  of  his 
foreman  or  principal  clerk,  showing  the  same. 

3.  The  written  admission  of  the  defendant. 

Code,  8.  228;   C.  C.  P.,  s.  89. 

447.  Voluntary  appearance  by  defendant.  A  voluntary  appear- 
ance of  a  defendant  is  (■(i\ii\alent  to  personal  service  of  the  summons 
upon  him. 

Code,  s.  229;  C.  C.  P.,  s.  90. 

120 


448  CIVIL  PEOCEDURE— TV//.  Summom.  Ch.   12 

448.  Personal  service  on  nonresident.  When  the  place  of  resi- 
dence is  known  and  the  same  is  made  to  appear  by  affidavit,  in 
lieu  of  publication  in  a  newspaper  it  will  be  sufficient  to  mail  a 
copy  of  the  summons,  notice  or  other  process,  accompanied  by  a 
statement  as  to  the  nature  of  the  action  or  proceeding,  to  the  sheriff 
or  other  process  officer  of  the  county  and  state  where  the  defendant 
resides,  who  shall  serve  same  according  to  its  tenor.  The  process  offi- 
cer who  serves  the  papers  shall,  in  making  his  return,  use  a  form  of 
certificate  substantially  as  follows: 

State  of 

County  of 

I,    ,  clerk  of  the    court  of    count}-,   in  the 

state  of ,  which  court  is  a  court  of  record  having  a  seal,  which 

•is  hereto  attached,  do  certify  that ,  to  me  well  known  as  the 

sheriff  of  said  county  of ,  who  being  by  me  duly  sworn,  says 

that  as  such  sheriff  he  has  full  power  to  serve  any  and  all  legal  pro- 
cesses issuing  from  the  courts  of  said  state,  and  that  on  the  .  .  .  .day 
of  .  .  .  .,  190.  .,  he  served  the  summons  hereto  attached  by  reading 

and   delivering   a   copy   of  same   to    ,   the   defendant  therein 

named. 

,  sheriff, 

county. 

State  of 

Sworn  to  and  subscribed  before  me,  this day  of 

190.. 

,  clerk court. 

County  of    

[l.   s.]  State  of 

1891,  c.   120. 

449.  Defense  after  judgment  on  substituted  service.  The  de- 
fendant against  wlioni  publication  is  ordered,  or  wlio  is  served  under 
the  provisions  of  the  preceding  section,  or  his  representatives,  on 
application  and  sufficient  cause  sho-\\Ti  at  any  time  before  judgment, 
must  be  allowed  to  defend  the  action;  and,  except  in  an  action  for 
divorce,  the  defendant  against  whom  publication  is  ordered,  or  his 
representatives,  may  in  like  manner,  upon  good  cause  shown,  be 
allowed  to  defend  after  judgment,  or  at  any  time  within  one  year 
after  notice  thereof,  and  within  five  years  after  its  rendition,  on  such 
terms  as  may  be  just;  and  if  the  defense  be  successful  and  the  judg- 
ment or  any  part  thereof  shall  have  been  collected  or  otherwise 
enforced,  such  restitution  may  thereupon  be  compelled  as  the  court 
may  direct;  but  title  to  property  sold  under  such  judgment  to  a  pur- 
chaser in  good  faith  shall  not  be  thereby  affected. 

Code,  s.  220;  C.  C.  P.,  s.  8.1. 

Note.     Summoned  after  judgment,  see  s.  456. 


450       CIVIL  PEOCEDUEE— 7X.  Prosecution  Bonds.       Ch.   12 

IX.     Peosecution  Bonds. 

450.  Plaintiff's,  for  costs.  Before  issuing  the  summons  the 
clerk  shall  require  of  the  plaintiff  either  to  give  an  under- 
taking with  sufficient  surety  in  the  sum  of  two  hundred  dollars, 
with  the  condition  that  the  same  shall  be  void  if  the  plaintiff  shall 
pay  the  defendant  all  such  costs  as  the  defendant  shall  recover  of 
him  in  the  action;  or  to  deposit  a  like  sum  with  him  as  a  security  to 
the  defendant  for  such  costs,  and  in  case  of  such  deposit,  he  shall  give 
to  the  plaintiff  and  to  the  defendant  a  certificate  to  that  effect;  or 
to  file  with  him  a  written  authority  from  some  judge  or  clerk  of  a 
superior  court,  authorizing  the  plaintiff  to  sue  as  a  pauper. 

Code,  s.  209;   R.  C,  c.  31,  s.  40;   C.  C.  P.,  s.  71. 

Note.     For  bond  in  surety  company,  see  chapter  Bonds,  s.  272,  et  seq. 

For  mortgage  in  lieu  of  bond,  see  cliapter  Bonds,  ss.  265-270. 

451.  Suit  as  a  pauper.  Any  judge  or  clerk  of  the  superior  court 
may  authorize  any  person  to  sue  as  a  pauper  in  their  respective 
courts  when  he  shall  prove,  by  one  or  more  witnesses,  that  he  has 
a  good  cause  of  action,  and  shall  make  aflidavit  that  he  is  unable  to 
comply  with  the  last  section. 

Code,  s.  210;  C.  C.  P.,  s.  72;   1868-9,  c.  96. 

Note.     For  effect  on  costs,  see  chapter  Costs,  s.  1265. 

452.  Court  may  assign  counsel.  The  com-t  to  which  such  sum- 
mons is  made  returnable  may,  at  its  discretion,  assign  to  the  person 
suing  as  a  pauper  learned  counsel,  who  shall  prosecute  his  action. 

Code,  s.  211;  1868-9,  c.  96,  s.  2. 

453.  Defendant's,  for  costs  and  damages  in  actions  for  land. 

In  all  actions  for  the  recovery  of  real  property  or  for  the  possession 
thereof,  the  defendant,  before  he  is  permitted  to  plead,  answer  or 
demiir,  shall  execute  and  file  in  the  office  of  the  clerk  of  the  superior 
court  of  the  county  wherein  the  suit  is  pending  an  undertaking  with 
good  and  sufficient  surety,  in  an  amount  to  be  fixed  by  the  court,  not 
less  than  two  hundred  dollars,  to  be  void  upon  condition  that  the 
defendant  pay  to  the  plaintiff  all  such  costs  and  damages  as  the 
plaintiff  may  recover  in  the  action,  including  damages  for  the  loss 
of  rents  and  profits. 

Code,  s.  2.37;   1869-70,  c.   193. 

454.  Defense  without  bond,  when.  The  undertaking  prescribed 
in  the  preceding  section  shall  not  be  required  if  an  attorney  prac- 
ticing in  the  court  wherein  the  action  is  jiending  will  certify  to  the 
court  in  writing  that  he  has  examined  the  case  of  the  defendant  and 
is  of  the  opinion  that  the  plaintiff  is  not  entitled  to  recover;  and 


45-i       CIVIL  PEOCEDUEE— 7X.  Prosecution  Bonds.       Ch.   12 

if  the  defendant  will  also  file  an  affidavit  stating  that  he  is  not  worth 
the  amount  of  said  undertaking  in  any  property  whatsoever,  and  is 
unable  to  give  the  same. 
Code,  s.  237;   1869-70,  c.  193. 

X.     Joint  and  Several  Debtors. 

455.  When  some  only  of  defendants  are  served;   partners. 

Where  the  action  is  against  two  or  more  defendants,  and  the  sum- 
mons is  served  on  one  or  more  of  them,  but  not  on  all  of  thera,  the 
plaintiil  may  proceed  as  follows: 

1.  If  the  action  be  against  defendants  jointly  indebted  upon  con- 
tract, he  may  proceed  against  the  defendants  served,  imless  the  court 
otherwise  directs,  and  if  he  recover  judgTuent  it  may  be  entered 
against  all  the  defendants  thus  jointly  indebted,  so  far  only  as  that 
it  may  lie  enforced  against  the  joint  property  of  all  and  the  sepa- 
rate property  of  the  defendants  served,  and  if  they  are^  subject  to 
arrest,  against  the  persons  of  the  defendants  served;  or, 

2.  If  the  action  be  against  defendants  severally  liable,  he  may 
proceed  against  the  defendants  served,  in  the  same  manner  as  if 
they  were  the  only  defendants. 

3.  If  all  the  defendants  have  been  served,  judgment  may  be  taken 
against  any  or  either  of  them  severally,  when  the  plaintifF  would  be 
entitled  to  judgment  against  such  defendant  or  defendants  if  the 
action  had  been  against  them  or  any  of  them  alone. 

4.  If  the  name  of  one  or  more  partners  shall,  for  any  cause, 
have  been  omitted  in  any  action  in  which  judgment  shall  have  passed 
against  the  defendants  named  in  the  summons,  and  such  omission 
shall  not  have  been  joleaded  in  such  action,  the  plaintiff,  in  case  the 
judgment  therein  shall  remain  unsatisfied,  may  by  action  recover 
of  such  partner  separately,  upon  proving  his  joint  liability,  notwith- 
standing he  may  not  have  been  named  in  the  original  action ;  but 
the  plaintiff  shall  have  satisfaction  of  only  one  judgment  rendered 
for  the  same  cause  of  action. 

Code,  s.  222;  C.  C.  P..  s.  87. 
Note.     See  ante  ss.  411-414. 

456.  Summoned  after  judgment,  when.  When  a  jndiiment  shall 

be  recovered  against  one  or  more  of  several  persons  jointly  indebted 
upon  a  contract  by  proceeding,  as  provided  in  the  preceding  section, 
those  who  were  not  originally  summoned  to  answer  the  complaint 
may  be  summoned  to  show  cause  why  they  should  not  be  bound  by 
the  judgment,  in  the  same  manner  as  if  they  had  been  originally 
summoned. 

Code,  s.  223;   C.  C.   P.,  ss.  87,  318. 


457  CIVIL  PROCEDURE— Z.  Joint  and  Several  Debtors.  Ch.   12 

457.  Defense  by  party  summoned  after  judgment.  Any  party 

so  summoned  may  answer  within  the  time  specified  denying  the 
judgment,  or  setting  up  any  defense  thereto  which  may  have  arisen 
subsequently  to  such  judgment;  and  may  make  any  defense  which 
he  might  have  made  to  the  action  if  the  summons  had  been  served 
on  him  at  the  time  when  the  same  was  originally  commenced  and 
such  defense  had  been  then  interposed  to  such  action. 

Code,  s.  224;  C.  C.  P.,  s.  322. 

Note.     See  s.  449. 

458.  Pleadings  and  proceedings  same  as  in  action.  The  party 

issuing  the  sunamons  may  demur  or  reply  to  tlie  answer,  and  the 
party  summoned  may  demur  to  the  reply;  and  the  issues  may  be 
tried  and  judgment  may  be  given  in  the  same  manner  as  in  an  action 
and  enforced  by  execution  if  necessary. 
Code,  s.  225;   C.  C.  P.,  s.  323. 

459.  Pleadings  verified  as  In  actions.   The  answer  and  re])ly 

shall  be  verified  in  the  like  cases  and  manner  and  be  subject  to  the 
same  rules  as  the  answer  and  reply  in  an  action. 

Code,  s,  22C;   C.  C.   P.,  s.  324. 

XI.     Lis  Pendens. 

460.  Notice  of,  filed  in  county  where  land  lies.   In  an  action 

affecting  the  title  to  real  property,  the  plaintiff,  at  the  time  of  filing 
the  complaint  or  at  any  time  afterwards  or  whenever  a  warrant  of 
attachment  shall  be  issued,  or  at  any  time  afterwards,  the  plaintiff 
or  a  defendant  when  he  sets  up  an  affirmative  cause  of  action  in  his 
answer  and  demands  substantive  relief  at  the  time  of  filing  his 
answer  or  at  any  time  afterwards,  if  the  same  be  intended  to  affect 
real  estate,  may  file  with  the  clerk  of  each  county  in  which  the 
property  is  situated  a  notice  of  the  pendency  of  the  action,  contain- 
ing the  names  of  the  parties,  the  object  of  the  action,  and  the  descrip- 
tion of  the  property  in  that  county  affected  thereby ;  and  if  the  action 
be  for  the  foreclosure  of  a  mortgage,  such  notice  must  be  filed  twenty 
days  before  judgment  and  must  contain  the  date  of  the  mortgage, 
the  parties  thereto,  and  the  time  and  ]ilace  of  registering  the  same. 
Code,  s.  220:   C.  C.  P.,  s.  90. 

461.  Notice  ineffectual  unless  action  is  prosecuted.  The  notice 

of  lis  pendens  shall  be  of  no  avail  unless  it  sliall  ho  followed  by  the 
first  publication  of  notice  of  the  summons  or  by  an  order  therefor, 
or  by  the  personal  service  on  the  defendant  within  sixty  days  after 
such  filing. 

Code,  3.  220;   C.  C.  P..  s.  00. 


402  CIVIL  PROCEDURE— AT.  Lis  Pendens.  Ch.   12 

462.  Effect  of,  on  subsequent  purchasers.  From  the  tiling  of 

tlie  notice  of  lis  pendens  only  shall  the  pendency  of  the  action  be 
constructive  notice  to  a  purchaser  or  incumbrancer  of  the  property 
aifected  thereby ;  and  every  person  whose  conveyance  or  incumbrance 
is  subsequently  executed  or  subsequently  registered,  shall  be  deemed 
.a  subsequent  purchaser  or  incumbrancer,  and  shall  be  bound  by  all 
proceedings  taken  after  the  filing  of  such  notice  to  the  same  extent 
as  if  he  were  made  a  party  to  the  action.  For  the  purposes  of  this 
section  an  action  shall  be  deemed  to  be  pending  from  the  time  of 
filing  such  notice. 

Code,  s.  229;  C.  C.  P.,  s.  90. 

463.  Notice  cancelled,  when  and  how.  The  court  in  which  the 

said  action  was  commenced  may,  in  its  discretion,  at  any  time  after 
the  action  shall  be  settled,  discontinued  or  abated,  on  application  of 
any  person  aggrieved,  and  on  good  cause  shown,  and  on  such  notice 
as  shall  be  directed  or  approved  by  the  court,  order  the  notice  author- 
ized by  this  subchapter  to  be  cancelled  of  record,  by  the  clerk  of  any 
county  in  whose  oifice  the  same  may  have  been  filed  or  recorded ;  and 
such  cancellation  shall  be  made  by  an  endorsement  to  that  effect  on 
the  margin  of  the  record,  which  shall  refer  to  the  order. 
Code,  s.  229;  C.  C.  P.,  s.  90. 

464.  Lis  pendens  in  Buncombe.  Any  party  to  an  action  desiring 
to  claim  the  benefit  of  a  notice  of  lis  pendens  in  Buncombe  county, 
whether  given  formally  under  this  section  or  in  the  pleadings  filed 
in  the  case,  shall  cause  such  notice  to  be  cross-indexed  by  the  clerk 
of  the  superior  court  in  a  docket  to  be  kept  by  him,  to  be  called 
"Record  of  Lis  Pendens,"  which  index  shall  contain  the  names  of 
the  parties  to  the  action,  where  such  notice,  whether  formal  or  in  the 
pleadings  is  filed,  the  object  of  the  action,  the  date  of  indexing  and 
a  sufficient  description  of  the  land  to  be  affected  to  enable  any  person 
to  locate  said  lands.  From  the  time  of  cross-indexing  only  shall  the 
pendency  of  the  action  be  actual  or  constructive  notice  to  subsequent 
purchasers  or  incumbrancers.  The  word  '"filing"  in  the  jjreceding 
sections  of  this  subchapter  when  referring  to  actions  or  proceedings 
in  Buncombe  county  shall  read  "cross-indexing."  The  clerk  shall 
be  entitled  to  a  fee  of  twenty-five  cents  for  indexing  said  notice,  to  be 
paid  as  are  other  costs  in  the  pending  action. 

1903,  e.  472. 

XII.       COJIPLAINT. 

465.  The  first  pleading.  The  first  pleading  on  the  part  of  the 
plaintiff  is  the  complaint. 

Code,   s.   232;   C.  C.  P.,   s.  92. 


466  CIVIL  PROCEDURE— A'/7.   Complainl.  Ch.   1l' 

466.  Time  of  filing.  The  plaiutiff  shall  file  his  complaint  in  the 
clerk's  oflice  on  or  before  the  third  day  of  the  term  to  which  the  action 
is  brought,  otherwise  the  suit  mav,  on  motion,  be  dismissed  at  the 
cost  of  the  plaintiff. 

Code,  ss.  20G,  238;   1868-9,  c.  76,  s.  3;   1870-1,  c.  42,  s.  3. 

467.  Contents.    The  complaint  shall  contain— 

1.  The  title  of  the  cause,  specifying  the  name  of  the  court  in  which 
the  action  is  brought,  the  name  of  the  county  in  which  the  trial  is 
required  to  be  had,  and  the  names  of  the  parties  to  the  action,  plain- 
tiff and  defendant. 

2.  A  plain  and  concise  statement  of  the  facts  constituting  a  cause 
of  action,  without  iranecessary  repetition ;  and  each  material  allega- 
tion shall  be  distinctly  numbered. 

3.  A  demand  of  the  relief  to  which  the  plaintiff'  supposes  himself 
entitled.  If  the  recovery  of  money  be  demanded,  the  amount 
thereof  must  be  stated. 

Code,  s.  233;  C.  C.  P.,  s.  93. 

468.  In  action  to  recover  purchase  money  of  land.  In  actions 

for  the  recovery  of  a  debt  contracted  for  the  purchase  of  land,  it 
shall  be  the  duty  of  the  plaintiff'  to  set  forth  in  his  complaint  that  the 
consideration  of  the  debt  sued  on  was  the  purchase  money  of  certain 
land,  describing  said  land  in  an  intelligible  manner,  such  as  the  num- 
ber of  acres,  how  bounded,  and  where  situated. 
Code,  s.  234;   1879,  c.  217. 

469.  What  causes  of  action  may  be  joined.  The  plaintiff  may 

unite  in  the  same  complaint  several  causes  of  action,  whether  they 
be  such  as  have  been  heretofore  denominated  legal  or  equitable,  or 
both,  where  they  all  arise  out  of — 

1.  The  same  transaction;  or  transaction  connected  with  the  same 
subject  of  action. 

2.  Contract,  express  or  implied ;  or, 

3.  Injuries  with  or  without  force  to  person  and  property,  or  to 
either;  or, 

4.  Injuries  to  character ;  or, 

5.  Claims  to  recover  real  property,  with  or  without  danxages  for 
the  withholding  thereof;  and  the  rents  and  ])rofits  of  the  same;  or, 

0.  Claims  to  recover  personal  property,  with  or  without  damages 
for  the  withholding  thereof;  or, 

7.  Claims  against  a  trustee,  by  virtue  of  a  ooiitnict,  or  liy  opera- 
tion of  law. 

I5ut  the  causes  of  action  so  united  must  all  belong  to  one  of  these 
classes,  and  except  in  actions  for  the  foreclosure  of  mortgages,  must 


469  CIVIL  PROCEDUKE— X//.   Complaint.  Cb.   12 

affect  all  the  parties  to  the  action,  and  not  require  different  places 
of  trial,  and  must  be  separately  stated.  In  actions  to  foreclose  mort- 
gages, the  court  shall  have  power  to  adjudge  and  direct  the  payment 
by  the  mortgagor  of  any  residue  of  the  mortgage  debt  that  may 
remain  unsatisfied  after  a  sale  of  the  mortgaged  premises,  in  cases 
in  which  the  mortgagor  shall  be  personally  liable  for  the  debt  secured 
by  such  mortgage ;  and  if  the  mortgage  debt  be  secured  by  the  cove- 
nant or  obligation  of  any  person  other  than  the  mortgagor,  the  plain- 
tiff may  make  such  person  a  party  to  the  action,  and  the  court  may 
adjudge  payment  of  the  residue  of  such  debt  remaining  unsatisfied 
after  a  sale  of  the  mortgaged  premises,  against  such  other  person,  and 
may  enforce  such  judgment  as  in  other  cases. 
Code,  s.  267;  C.  C.  P.,  s.  126. 


Note.     Must  show  partj-  in  interest,  see  ss.  282.  400. 

XIII.     Defendant's  Pleadings. 

470.  Demurrer  or  answer.  The  only  pleading  on  the  part  of  the 
defendant  is  either  a  demurrer  or  an  answer. 

Code,  s.  238;  C.  C.  P.,  s.  94. 

471.  Demurrer  and  answer.  The  defendant  may  demur  lo  one 
or  more  of  several  causes  of  action  stated  in  the  complaint,  and 
answer  to  the  residue. 

Code,  s.  246;  C.  C.  P.,  s.  103. 

472.  Sham   and   irrelevant   defenses.    Sham  and  irrelevant 

answers  and  defenses  may  be  stricken  out  on  motion,  and  upon  such 
terms  as  the  court  may  in  its  discretion  impose. 

Code,  s.  247;  C.  C.  P.,  s.  104. 

Note.     See  s.  560. 

473.  Time  for.  The  defendant  shall  appear  and  demur  or  answer 
at  the  same  term  to  which  the  summons  shall  be  returnable,  other- 
wise the  plaintiff  may  have  judgment  by  default. 

Code,  s.  207;   1870-1,  c.  42,  s.  4. 

XIV.     Demurkee. 

474.  Grounds  for.  The  defendant  may  demur  to  the  complaint 
when  it  shall  appear  upon  the  face  thereof,  either — 

1.  That  the  court  has  no  jurisdiction  of  the  person  of  the  de- 
fendant, or  of  the  subject  of  the  action ;  or, 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue;  or, 

3.  That  there  is  another  action  pending  between  the  same  parties 
for  tlie  same  cause ;  or, 

127 


474  CIVIL  PEOCEDURE— ATT'.  Demurrer.  Ch.   12 

4.  That  there  is  a  defect  of  parties  plaintiff  or  defendant ;  or, 

5.  That  several  causes  of  action  have  been  improperly  nnited ;  or, 

6.  That  the  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action. 

Code,   s.   239;    C.   C.   P.,   s.   95. 

475.  Must  specify  grounds  of  objection.  The  demurrer  shall  dis- 
tinctly specify  the  grounds  of  objection  to  the  complaint.  Unless 
it  does  so,  it  may  be  disregarded.  It  may  be  taken  to  the  whole  com- 
plaint, or  to  any  of  the  alleged  causes  of  action  stated  therein. 

Code,  s.  240;  C.  C.  P.,  s.  96. 

476.  Sustained  for  misjoinder,  action  divided.  If  the  demurrer 

be  allowed  for  tlie  reason  that  several  causes  of  action  have  been  im- 
properly united,  the  judge  shall,  upon  such  terms  as  may  be  just, 
order  the  action  to  be  divided  into  as  many  actions  as  may  be  neces- 
sary to  the  proper  determination  of  the  causes  of  action  therein  men- 
tioned. 

Code,  s.  272;   C.  C.   P.,  s.   131. 

477.  Objection  not  appearing  in  complaint.  When  any  of  the 

matters  enumerated  as  grounds  of  demurrer  do  not  appear  on  the 
face  of  the  complaint,  the  objection  may  be  taken  by  answer. 
Code,  s.  241;  C.  C.  P.,  s.  98. 

478.  Objection  waived.  If  no  such  objection  be  taken  either  by 
demurrer  or  answer,  the  defendant  shall  be  deemed  to  have  waived 
the  same,  excepting  only  the  objection  to  the  jurisdiction  of  the 
court,  and  the  objection  that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action. 

Code,  s.  242;   C.  C.  P.,  s.  99. 

XV.     Answer. 

479.  Contains  what.   The  answer  of  the  defendant  must  contain — 

1.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant,  or  of  any  knowledge  or 
information  thereof,   sufficient  to  form   a  belief. 

2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise  language,  without  rei)etition. 

Code,  s.  24.-?;   C.  C.  P.,  s.   100. 

480.  Debt  for  purchase  money  of  land  denied.   If  the  defend 

ant  shall  deny  in  his  answer  that  the  obligation  sued  on  was  for  tlic 
purchase  money  of  the  land  described  in  the  complaint,  it  shall  br 
the  duty  of  the  court  to  sulmiil  tli(>  issue  so  joined  to  tlie  jury. 
Code,  8.  235;   1879,  c.  217. 


,481  CIVIL  PEOCEDURE— ZF.  Answer.  Ch.   12 

481.  Counterclaim.  The  counterclaim  mentioned  in  section  four 
himdred  and  seventy-nine  must  be  one  existing  in  favor  of  a  defend- 
ant and  against  a  plaintiff  between  whom  a  several  judgment  might 
be  had  in  the  action,  and  arising  out  of  one  of  the  following  causes 
of  action: 

1.  A  caiise  of  action  arising  out  of  the  contract  or  transaction 
set  forth  in  the  complaint  as  the  foundation  of  the  plaintiff's  claim, 
or  connected  with  the  subject  of  the  action. 

2.  In  an  action  arising  on  contract,  any  other  cause  of  action  aris- 
ing also  on  contract,  and  existing  at  the  commencement  of  the  action. 

Code,  s.  244;  C.  C.  P.,  s.  101. 

482.  Several  defenses.  The  defendant  may  set  forth  by  answer 
as  many  defenses  and  counterclaims  as  he  may  have,  whether  they 
be  such  as  have  been  theretofore  denominated  legal,  equitable,  or 
both.  They  must  each  be  separately  stated  and  numbered,  and  refer 
to  the  cause  of  action  which  they  are  intended  to  answer  in  such 
manner  that  they  may  be  intelligibly  distinguished. 

Code,  s.  245;  C.  C.  P.,  s.  102. 

Note.     Statute  of  limitations  pleaded  by  answer  only,  see  s.  360. 

483.  Contributory  negligence  pleaded  and  proved.  In  all  actions 

to  recover  damages  by  reason  of  the  negligence  of  the  defendant, 
where  contributory  negligence  is  relied  upon  as  a  defense,  it  shall 
be  set  up  in  the  answer  and  proved  on  the  trial. 
1887,  0.  33. 

XVI.     Reply. 

484.  When  filed;  cause  at  issue.  The  plaintiff  shall  join  issue 
on  the  denuirrer  or  reply  to  the  answer  at  the  same  term  to  which 
such  demurrer  or  answer  may  be  filed ;  and  the  issues,  whether  of 
law  or  of  fact,  shall  stand  for  trial  at  the  next  term  succeeding  the 
terra  at  which  the  pleadings  are  completed :  Provided,  that  where 
an  action  is  instituted  upon  a  bill,  note,  bill  of  exchange,  liquidated 
and  settled  account,  or  for  divorce,  and  summons  in  such  action  shall 
be  served  on  the  defendant  at  least  thirty  days  before  the  term  of 
cottrt  to  which  such  summons  shall  be  returnable,  and  a  copy  of  the 
complaint  filed  in  the  clerk's  office  at  least  thirty  days  before  such 
term  of  court,  if  civil  cases  can  be  tried  at  such,  then  and  in  such  case 
such  action  shall  stand  for  trial  at  such  first  term  of  court. 

Code,  s.  208;   1870-1,  c.  42,  s.  5;  1001,  c.  G'2(i. 

485.  What  to  contain;  demurrer  to  answer.  When  the  answer 

contains  new  matter  constituting  a  cdunterclaini,  the  plaintiff  may 
reply  to  such  new  matter,  denying  generally  or  specificall}'  each 
allegation  controverted  by  him  or  any  knowledge  or  information 
thereof  sufficient  to  form  a  belief;  and  he  may  allege,  in  ordinary 

Rev.  Vol.  I— 5  129 


485  CIVIL  PEOCEDURE— ZF/.  Eeply.  Ch.  12 

and  concise  language,  without  repetition,  any  new  matter  not  in- 
consistent with  the  complaint,  constituting  a  defense  to  such  new 
matter  in  the  answer ;  and  the  plaintiff  may  in  all  cases  demur  to  an 
ansM'er  containing  new  matter,  where,  upon  its  face,  it  does  not  con- 
stitute a  counterclaim  or  defense ;  and  the  plaintiff  may  demur  to 
one  or  more  of  such  defenses  or  counterclaims,  and  reply  to  the 
residue  of  the  counterclaim.  And  in  other  eases,  when  an  answer 
contains  new  matter  constituting  a  defense  by  way  of  avoidance, 
the  court  may  in  its  discretion,  on  the  defendant's  motion,  require 
a  reply  to  such  new  matter;  and  in  that  case,  the  reply  shall  be  sub- 
ject to  the  same  rules  as  a  reply  to  a  counterclaim. 
Code,  s.  248;  C.  C.  P.,  s.  105. 

486.  Demurrer  to  reply.  If  a  reply  of  the  plaintiff  to  any  defense 
set  up  by  the  answer  of  the  defendant  be  insufficient,  the  defendant 
may  demur  thereto,  and  shall  state  the  grounds  thereof. 

Code,  s.  250;  C.  C.  P.,  s.  107. 

XVII.     Pleading,  General  Provisions. 

487.  Forms  of.  The  forms  of  pleading  in  civil  actions  in  courts 
of  record,  and  the  rules  by  which  the  sufficiency  of  the  pleadings  is 
to  be  determined,  are  those  prescribed  by  this  chapter. 

Code,  s.  231;  C.  C.  P.,  s.  91. 

488.  Subscribed;  verified,  when.  Every  pleading  in  a  court  of 
record  must  be  subscribed  by  the  party  or  his  attorney;  and  when 
any  pleading  is  verified,  every  subsequent  pleading,  except  a  demur- 
rer, must  be  verified  also. 

Code,  s.  257;  C.  C.  P.,  s.  116. 

489.  Verification.  The  verification  must  be  in  substance  that  the 
same  is  true  to  the  knowledge  of  the  person  making  it,  except  as 
to  those  matters  stated  on  information  and  belief,  and  as  to  those 
matters  he  believes  it  to  be  true;  and  must;  be  by  affidavit  of  tiie 
party,  or  if  there  be  several  parties  united  in  interest,  and  pleading- 
together,  by  one  at  least  of  such  parties  acquainted  with  the  fads, 
if  such  party  be  within  the  county  where  the  attorney  resides,  and 
capable  of  making  the  affidavit. 

Code,  s.  258;  C.  C.  P.,  s.  117;   1SG8-9,  c.  150,  s.  7. 

490.  Verification  by  agent  or  attorney.  Tlie  affidavit  may  also 

be  made  by  the  agent  or  attorney,  if  the  action  or  defense  be  foundc(! 
upon  a  written  instrument  for  the  payment  of  money  only,  and  sudi 
instrument  be  in  the  possession  of  the  agent  or  attorney,  or  if  all 
the  material  allegations  of  the  pleading  be  within  the  personal  knowl- 


4y0   CIVIL  PKOCEDURE— ZF7/.  Pleading,  Gen.  Prov.   Ch.   12 

edge  of  the  agent  or  attorney.  When  the  pleading  is  verified  by  any 
other  person  than  the  party,  he  shall  set  forth  in  the  affidavit  his 
knowledge,  or  the  grounds  of  his  belief  on  the  subject,  and  the  rea- 
sons why  it  is  not  made  by  the  party. 

Code,  s.   26S;   C.   C.  P.,  s.   117;    1868-9,   c.   159,   s.   7. 

491.  Verification  by  corporation;  when  state  is  party.  When  a 

corporation  is  a  party  the  verification  may  be  made  by  any  officer, 
or  managing  or  local  agent  thereof  upon  whom  summons  might  be 
served ;  and  when  the  state  or  any  officer  thereof  in  its  behalf  is  a 
party,  the  verification  may  be  made  by  any  person  acquainted  with 
the  facts. 

Code,  s.  2.')8;   1901,  e.  610;  C.  C.  P.,  s.  117;   1868-9,  o.  159,  s.  7. 

492.  Verification  before  what  officer.  Any  officer  competent  to 

take  the  aekuowledgnient  of  deeds,  and  any  judge  or  clerk  of  the 
superior  court,  notary  public,  in  or  out  of  the  state,  or  justice  of  the 
peace,  shall  be  competent  to  take  affidavits  for  the  verification  of 
pleadings,  in  any  court  or  county  in  the  state,  and  for  general  pur- 
poses. 

Code,  s.  258;    1891,  e.   140;   C.  C.   P.,   s.   117;    1868-9,  c.   159,   s.   7. 

493.  Verification    omitted,   when;   pleadings   incompetent    in 

criminal  prosecutions.  The  verification  may  be  omitted  when  an 
admission  of  the  truth  of  the  allegation  might  subject  the  party  to 
prosecution  for  felony.  And  no  pleading  can  be  used  in  a  criminal 
prosecution  against  the  party  as  proof  of  a  fact  admitted  or  alleged 
in  such  pleading. 

Code,  s.  258;   C.  C.  P.,  s.  117;    1868-9,  c.  159,  s.  7. 

494.  Items  of  account;  particulars  furnished,  when.   It  shall 

not  be  necessary  for  a  party  to  set  forth  in  a  pleading  the  items  of 
an  account  therein  alleged ;  but  he  shall  deliver  to  the  adverse  party, 
within  ten  days  after  a  demand  thereof  in  writing,  a  copy  of  the 
account,  which,  if  the  pleading  is  verified,  must  be  verified  by  his 
own  oath,  or  that  of  his  agent  or  attorney,  if  within  the  personal 
knowledge  of  such  agent  or  attorney,  to  the  eifect  that  he  believes 
it  to  be  true,  or  be  precluded  from  giving  evidence  thereof.  The 
court  or  the  judge  thereof  may  order  a  further  account  when  the 
one  delivered  is  defective ;  and  the  court  may,  in  all  cases,  order  a 
bill  of  particulars  of  the  claim  of  either  party  to  be  furnished. 

Code,   s.   259;    C.   C.   P.,  s.    118. 

495.  Pleadings  construed.  In  the  construction  of  a  pleading  for 
the  purpose  of  determining  its  effect  its  allegations  shall  be  liberally 
construed  with  a  view  to  substantial  justice  between  the  ]iartics. 

Code,  s.  260;  C.  C.  P.,  s.  119. 

131 


496   CIVIL  PROCEDUKP:— A'T77.  Pleading,  Gen.  Prov.   Ch.   12 

496.  Irrelevant,  redundant;  indefinite,  uncertain.   If  irrelevant 

or  redundant  matter  be  inserted  in  a  pleading,  it  may  be  stricken  o\it, 
on  motion  of  any  person  aggrieved  thereby,  but  this  motion  must  be 
made  before  answer  or  demurrer,  or  before  an  extension  of  time  to 
jjlead  is  gi'antcd.  And  when  the  allegations  of  a  pleading  are  so 
indefinite  or  uncertain  that  the  precise  nature  of  the  charge  or 
defense  is  not  apparent,  the  court  may  require  the  pleading  to  be 
made  definite  and  certain  by  amendment. 
Code,  s.  261 ;  C.  C.  P.,  s.  120. 

497.  Judgments  pleaded;  burden  of  proof.  In  pleading  a  judg- 
ment or  other  determination  of  a  court  or  of  an  officer  of  special 
jurisdiction,  it  shall  not  be  necessary  to  state  the  facts  conferring 
jurisdiction,  but  such  judgment  or  determination  may  be  stated  to 
have  been  duly  given  or  made.  If  such  allegation  be  controverted, 
the  party  pleading  shall  be  bound  to  establish,  on  the  trial,  the  facts 
conferring  jurisdiction. 

Code,  s.  262;  C.  C.  P.,  s.  121. 

498.  Conditions  precedent  pleaded;  burden  of  proof.  In  plead- 
ing the  performance  of  conditions  precedent  in  a  contract,  it  shall 
not  be  necessary  to  state  the  facts  showing  such  performance ;  but 
it  may  be  stated  generally  that  the  party  duly  performed  all  the  con- 
ditions on  his  part;  and  if  such  allegation  be  controverted,  the  party 
pleading  shall  be  bound  to  establish,  on  the  trial,  the  facts  showing 
such  performance. 

Code,  s.  26.3;   C.  C.  P.,  s.  122. 

499.  Instrument  for  payment  of  money  pleaded.  In  an  action 

or  defense  founded  upon  an  instrument  for  the  payment  of  money 
only,  it  shall  be  sufficient  for  the  party  pleading  to  give  a  copy  of 
the  instrument,  and  to  state  that  there  is  due  to  him  thereon,  from 
the  adverse  party,  a  specified  sum  which  he  claims. 

Code,  s.  263:   C.  C.  P..  s.   122. 

500.  Private  statutes  pleaded.  In  pleading  a  private  statute  or 
right  derived  therefrom  it  shall  be  sufficient  to  refer  to  such  statut<' 
by  its  title  or  the  day  of  its  ratification,  and  the  eo\irt  shall  there 
upon  take  judicial  notice  thereof. 

Code,  s.  264;   C.  C.  P.,  s.  123. 

501.  Libel  and  slander,  complaint;  onus.  In  an  action  for  libel 

or  slander  it  shall  imt  be  necessary  to  state  in  the  com]>laint  any 
extrinsic  facts  for  the  purpose  of  showing  the  application  to  the 
plaintiff  of  the  defamatory  matter  out  of  which  the  cause  of  action 
arose;  but  it  shall  be  sufficient  to  state  generally  that  the  same  was 


501    CIVIL  PROCEDURE— ZF//.  Pleading,  Gen.  Prov.   Ch.  12 

published  or  spoken  concerning  the  plaintiff;  and  if  such  allegation 
be  controverted,  the  plaintiff  shall  be  bound  to  establish,  on  trial, 
that  it  was  so  published  or  spoken. 

Code,  s.  265;   C.  C.  P.,s.   124. 
Xote.     See  s.  2012  et  seq. 

502.  Libel  and  slander,  answer.  In  the  actions  mentioned  in  the 
preceding  section,  the  defendant  may  in  his  answer  allege  both  the 
truth  of  the  matter  charged  as  defamatory,  and  any  mitigating  cir- 
cumstances to  reduce  the  amount  of  damages ;  and  whether  he  prove 
the  justification  or  not,  he  may  give  in  evidence  the  mitigating  cir- 
cumstances. 

Code,  s.  2G6;  C.  C.  P.,  s.  125. 
Note.     See  s.  2012  et  seq. 

503.  Allegations  not  denied,  deemed  true.  Every  material  alle- 
gation of  the  complaint  not  controverted  by  the  answer,  and  every 

I  material  allegation  of  new  matter  in  the  answer,  constituting  a 
counterclaim,  not  controverted  by  the  reply  shall  for  the  purposes 
of  the  action,  be  taken  as  true.  But  the  allegation  of  new  matter  in 
the  answer,  not  relating  to  a  counterclaim,  or  of  new  matter  in  reply, 
is  to  be  deemed  controverted  by  the  adverse  party  as  upon  a  direct 
denial  or  avoidance,  as  the  case  may  require. 
Code,  s.  268;  C.  C.  P.,  s.  127. 

504.  Pleading  lost,  copy  used.  If  an  original  pleading  or  paper 
be  lost  or  withheld  by  any  person,  the  court  may  aiithorize  a  copy 
thereof  to  be  filed  and  used  instead  of  the  original. 

Code,  s.  600;  C.  C.  P.,  s.  357. 

XVIII.     Amendments. 

505.  As  of  course,  when.  Any  pleading  may  be  once  amended 
of  course,  without  costs,  and  -without  prejudice  to  the  proceedings 
already  had,  at  any  time  before  the  period  for  answering  it  expires; 
or  it  can  be  so  amended  at  any  time,  unless  it  be  made  to  appear  to 
the  court  that  it  was  done  for  the  purpose  of  delay,  and  the  plaintiff 
or  defendant  will  thereby  lose  the  benefit  of  a  term  for  which  the 
cause  is,  or  may  be,  docketed  for  trial ;  and  if  it  appear  to  the  court 
or  judge  that  such  amendment  was  made  for  such  purpose,  the  same 
may  be  stricken  out,  and  such  terms  imposed  as  to  the  court  or  judge 
may  seem  just. 

Code,   s.   272;    C.  C.   P..   s.    131. 

506.  Upon  demurrer  sustained.  After  the  decision  of  a  demur- 
rer, the  judge  shall,  if  it  appear  that  the  demurrer  was  interposed 


506         CIVIL  PKOCEDURE— XTV//.  Av^endwents.         Ch.   12 

in  good  faith,  allow  the  party  to  plead  over  upon  such  terms  as  may 
be  just. 

Code,  s.  272;   C.  C.  P.,  s.   131;    1871-2,  c.   173. 

507.  To  pleading,  process  or  proceeding,  wlien.  The  judge  or 

court  may,  before  and  after  judg-ment,  in  furtherance  of  justice,  and 
on  such  terms  as  may  be  proper,  amend  any  pleading,  process  or  pro- 
ceeding, by  adding  or  striking  out  the  name  of  any  party;  or  by 
correcting  a  mistake  in  the  name  of  a  party,  or  a  mistake  in  any  other 
respect;  or  by  inserting  other  allegations  material  to  the  ease;  or 
when  the  amendment  does  not  change  substantially  the  claim  or 
defense,  by  conforming  the  pleading  or  proceeding  to  the  fact  proved. 
Code,  s.  273;  C.  C.  P..  s.   132. 

508.  Effect  of  substantial.    When  the  complaint  is  so  amended 

as  to  change  the  nature  of  the  action  and  the  character  of  the  relief 
demanded,  the  judgment  rendered  shall  not  operate  as  an  estoppel 
upon  any  person  acquiring  an  interest  in  the  property  in  controversy 
prior  to  the  allowance  of  such  amendment. 
1901,  c.  486. 

509.  Unsubstantial  defects  disregarded.    The  court  or  judge 

thereof  shall,  in  every  stage  of  the  action,  disregard  any  error  or 
defect  in  the  pleadings  or  proceedings  which  shall  not  affect  the 
substantial  rights  of  the  adverse  party;  and  no  judgment  shall  be 
reversed  or  affected  by  reason  of  such  error  or  defect. 
Code,  s.  276;  R.  C,  c.  3,  ss.  5,  6  ;  C.  C.  P.,  s.  135. 

510.  When  plaintiff  ignorant  of  defendant's  name;  true  name 

inserted  when  known.  AVhen  the  plaintiff  shall  be  ignorant  of  tlio 
name  of  a  defendant  such  defendant  may  be  designated  in  any  plead- 
ing or  proceeding  by  any  name;  and  when  his  true  name  shall  be 
discovered,  the  pleading  or  proceeding  may  be  amended  accordingly. 
Code,  s.  275;  C.  C.  P..  s.   134. 

511.  Supplemental  pleadings.  The  plaintiff  and  defendant  re- 
spectively may  be  allowed  on  motion  to  make  a  supplemental  com- 
plaint, answer  or  reply,  alleging  facts  material  to  the  case  occurring 
after  the  former  complaint,  answer  or  reply,  or  of  which  the  party 
was  igiiorant  when  his  former  pleading  was  made,  and  either  party 
may  set  up  by  a  supplemental  pleading,  the  judgment  or  decree  of 
any  court  of  competent  jurisdiction,  rendered  since  the  commence- 
ment of  such  action,  determining  the  matter  in  controversy  in  said 
action,  or  any  part  thereof,  and  if  said  judgment  be  set  up  by  th(> 
plaintiff,   the   same   shall   be   without   prejudice   to   any   provisional 


511         CIVIL  PEOCEDURE— Z7///.  Amendments.         Ch.   12 

remedy  theretofore  issued  or  other  proceedings  had  in  said  action 
on  his  behalf. 

Code,  s.  277;  C.  C.  P.,  s.  136. 

512.  Time  for  pleading  enlarged;  proceedings  made  conform- 
able to  law.  The  judge  may  liliewise,  in  his  discretion,  and  upon 
siTch  terms  as  may  be  just,  allow  an  answer  or  reply  to  be  made, 
or  other  act  to  be  done,  after  the  time  limited,  or  by  an  order 
to  enlarge  such  time ;  and  whenever  any  proceeding  taken  by  a  party 
fails  to  conform  to  law  in  any  respect,  the  judge  may,  in  like  man- 
ner and  upon  like  terms,  pennit  an  amendment  of  such  proceeding, 
so  as  to  make  it  conformable  thereto. 

Code,  s.  274;  C.  C.  P.,  s.  133. 

513.  Mistake,  surprise,  excusable  neglect.    The  judge  shall, 

upon  such  terms  as  may  be  just,  at  any  time  within  one  year  after 
notice  thereof,  relieve  a  party  from  a  judgment,  order,  verdict  or 
other  proceeding  taken  against  him  through  his  mistake,  inadvert- 
ence, surprise  or  excusable  neglect,  and  may  supply  an  omission  in 
any  proceeding. 

Code,  s.  274;   1893.  e.  81;  C.  C.  P.,  s.   133. 

514.  Orders  without  notice,  vacated.   An  order  made  out  of 

court,  without  notice  to  the  adverse  party,  may  be  vacated  or  modi- 
fied without  notice  by  the  judge  who  made  it,  or  may  be  vacated 
or  modified  on  notice,  in  the  manner  in  which  other  motions  are 
made. 

Code,  s.  546;  C.  C.  P.,  s.  297. 

XIX.     Variance  Between  Pleading  and  Proof. 

515.  Material;  amendment  when.  No  variance  between  the  alle- 
gation in  a  pleading  and  the  pr(X)f  shall  be  deemed  material,  unless 
it  has  actually  misled  the  adverse  party  to  his  prejudice  in  main- 
taining his  action  upon  the  merits.  Whenever  it  shall  be  alleged 
that  a  party  has  been  so  misled,  that  fact  shall  be  proved  to  the  satis- 
faction of  the  court,  and  in  what  respect  he  had  been  misled ;  and 
thereupon  the  judge  may  order  the  pleading  to  be  amended  upon 
such  terms  as  shall  be  just. 

Code,  s.  269;  C.  C.  P.,  s.  128. 

516.  Immaterial.  Where  the  variance  is  not  material  as  pro- 
vided in  the  preceding  section,  the  judge  may  direct  the  fact  to  be 
found  according  to  the  evidence,  or  may  order  an  immediate  amend- 
ment without  costs. 

Code,  s.  270;  C.  C.  P.,  s.  129. 


517  CIVIL  PROCEDURE— A7A'.    Variance,  etc.  Ch.   12 

517.  Failure  of  proof.  Where,  however,  the  allegation  of  the 
cause  of  action  or  defense  to  which  the  proof  is  directed  is  unproved, 
not  in  some  particular  or  particulars  only,  but  in  its  entire  scope 
and  meaning,  it  shall  not  be  deemed  a  case  of  variance,  but  a  failure 
of  proof. 

Code,  s.  271;  C.  C.  P.,  s.  130. 

XX.     Refeeence. 

518.  By  consent.  All  or  any  of  the  issues  in  the  action,  whether 
of  fact  or  of  law,  or  both,  may  be  referred,  upon  the  written  consent 
of  the  parties,  except  in  actions  to  annul  a  marriage,  or  for  divorce 
and  separation. 

Code,  s.  420;   C.  C.  P.,  9.  244. 

519.  Compulsory.  Where  the  parties  do  not  consent,  the  court 
may,  upon  the  application  of  either,  or  of  its  own  motion,  direct  a 
reference  in  the  following  cases: 

1.  Where  the  trial  of  an  issue  of  fact  shall  require  the  examina- 
tion of  a  long  account  on  either  side ;  in  which  case  the  referee  may 
be  directed  to  hear  and  decide  the  whole  issue,  or  to  report  upon  any 
specific  question  of  fact  involved  therein ;  or, 

2.  W^here  the  taking  of  an  account  shall  be  necessary  for  the  infor- 
mation of  the  court,  before  judgment,  or  for  carrying  a  judgment  or 
order  into  effect;  or, 

3.  When  the  case  involves  a  complicated  question  of  boundary, 
or  one  which  requires  a  personal  vicAv  of  the  premises ;  or, 

4.  Where  a  question  of  fact  other  than  upon  the  pleadings  shall 
arise,  upon  motion  or  otherwise,  in  any  stage  of  the  action ;  or, 

5".  Where  the  issues  of  fact  and  questions  of  fact  arise  in  an  action 
of  which  the  courts  of  equity  of  the  state  had  exclusive  jurisdiction 
prior  to  the  adoption  of  the  constitution  of  one  thousand  eight  hun- 
dred and  sixty-eight,  and  in  which  the  matter  or  amount  in  dispute 
is  not  less  than  the  sum  or  value  of  five  hundred  dollars. 

The  compulsory  reference  under  this  section  shall  not  deprive 
either  party  of  his  constitutional  right  to  a  trial  of  the  is.sues  of  fact 
arising  on  the  pleadings,  by  a  jury,  but  such  trial  shall  be  had  only 
upon  the  written  evidence  taken  before  the  referee. 

Code,  s.  421;   1897,  c.  237,  ss.  1,  2;  C.  C.  P.,  s.  245. 

520.  Referees,  how  chosen;  qualifications.  In  all  cases  of  ref- 
erence the  jiarties  as  to  whom  issues  arc  joined  in  the  action  (excejit 
when  the  defendant  is  an  infant  or  an  absentee)  may  .agree  in  writing 
upon  a  person  or  persons,  not  exceeding  three,  and  a  reference  shall 
be  ordered  to  iiim  or  them,  and  to  no  otlier  person  or  ])ersons.      And 


520  CIVIL  PEOCEDUEE— A'X.  lieference.  Ch.  12 

if  such  parties  do  not  agree,  the  court  shall  appoint  one  or  more 
referees,  not  more  than  three,  who  shall  be  free  from  exception. 
And  no  person  shall  be  appointed  referee  to  whom  all  parties  in 
the  action  shall  object.  And  no  judge  or  justice  of  any  court  shall 
sit  as  referee  in  any  action  pending  in  the  court  of  which  he  is  judge 
or  justice,  and  not  already  referred,  unless  the  parties  otherwise 
stipulate. 

Code,  s.  423;  C.  C.  P.,  s.  247. 

521.  Referees  may  administer  oaths.  Every  referee  shall  have 
power  to  administer  oaths  in  any  proceeding  before  him,  and  shall 
have  generally  the  power  vested  in  a  referee  by  law. 

Code,  s.  599;   C.  C.   P.,  s.  356. 

522.  Conduct  of  trial;  amendments;  contempt  punished.  The 

trial  by  referees  shall  be  conducted  in  the  same  manner  as  a  trial 
by  the  court.  They  shall  have  the  same  power  to  grant  adjourn- 
ments and  to  allow  amendments  to  any  pleadings  and  to  the  sum- 
mons, as  the  court  upon  such  trial,  upon  the  same  terms  and  with 
like  effect.  They  shall  have  the  same  power  to  preserve  order  and 
punish  all  violations  thereof  upon  such  trial,  and  to^  compel  the 
attendance  of  witnesses  before  them  by  attachment  and  to  punish 
them  as  for  contempt  for  nonattendance  or  refusal  to  be  sworn  or 
to  testify,  as  is  possessed  by  the  court. 

Code,  s.  422;   C.  C.  P.,  s.   246. 

523.  Testimony  reduced  to  writing.   The  testimony  of  all  the 

witnesses  on  both  sides  shall  be  reduced  to  writing  by  the  referee, 
or  under  his  direction,  and  signed  by  the  witnesses,  and  the  evidence 
so  taken  and  signed  shall  be  filed  in  the  cause,  and  constitute  a 
part  of  the  record. 
1897,  c.  237,  s.  3. 

524.  Report,  when  and  to  whom  made;  review  of;  judgment  on. 

The  referee  shall  make  and  deliver  a  report  within  such  time  as  may 
be  ordered  by  the  court.  The  report  of  the  referee  shall  be  made 
to  the  clerk  of  the  court  in  which  the  action  is  pending;  either 
party,  during  the  term  or  upon  ten  days'  notice  to  the  adverse  party 
out  of  term,  may  move  the  judge  to  review  such  report,  and  set  aside, 
modify  or  confirm  the  same  in  whole  or  in  part,  and  no  judgment 
shall  be  entered  on  any  reference  except  by  order  of  the  judge. 
Code,  s.  423;  C.  C.  P.,  s.  247. 

525.  Report,  what  to  contain;  exceptions;  effect  of  special 

verdict,  when.  The  referee  must  state  the  facts  found  and  the  con- 
clusions of  law  separately;  and  his  decision  must  be  given,  and  may 


525  CIVIL  PROCEDUEE— AM',  lieference.  Ch.   12 

be  excepted  to  and  reviewed  in  like  manner,  and  with  like  effect 
in  all  respects  as  in  cases  of  appeal ;  and  he  may  in  like  manner 
settle  a  case  or  exceptions.  The  report  of  the  referee  upon  the 
whole  issne  shall  stand  as  the  decision  of  the  conrt,  and  judgment 
may  be  entered  thereon  upon  application  to  the  judge.  When  the 
reference  is  to  report  the  facts,  the  report  shall  have  the  effect  of  a 
special  verdict. 

Code,  s.  422;  C.  C.  P.,  s.  24G. 

XXI.     Tkial. 

526.  Defined.  A  trial  is  the  judicial  examination  of  the  issues 
between  the  parties,  whether  they  be  issues  of  law  or  of  fact. 

Code,  s.  397;  C.  C.  P.,  s.  223. 

527.  How  issue  tried.  An  issue  of  law  must  be  tried  by  the 
judge  or  court,  unless  it  be  referred.  An  issue  of  fact  must  be 
tried  by  a  jury,  unless  a  trial  by  jviry  be  waived,  or  a  reference  be 
ordered.  Every  other  issue  is  triable  by  the  court,  or  the  JTidge 
thereof,  who,  however,  may  order  the  whole  issue,  or  any  specific 
question  of  fact  involved  therein,  to  be  tried  by  a  jury,  or  may 
refer  it.  And  when  a  compulsory  reference  is  ordered  either  party 
has  the  right  to  have  the  issues  of  fact  tried  by  a  jury. 

Code,   ss.   398,   399;    C.   C.   P.,  ss.   224,  225.  \ 

Note.     For  compulsory  reference,  see  s.  519. 

528.  Of  issues  of  fact.  Every  issue  of  fact  joined  on  the  plead- 
ings, and  inquiry  of  damages  required  to  be  tried  by  a  jury,  shall 
be  tried  at  the  term  of  the  court  next  ensuing  such  joinder  of  issue 
or  order  for  inquiry:  Provided,  such  issue  shall  have  been  joined 
or  order  for  inquiry  made,  more  than  thirty  days  before  such  term, 
but  if  not,  they  shall  be  tried  at  the  second  term  after  such  joinder 
or  order. 

Code,  s.  400;  C.  C.  P.,  s.  220. 

529.  Issues  of  fact  before  the  clerk;  bond  for  cost.  All  issues 

of  fact  joined  before  the  clerk  shall  be  transferred  to  the  superior 
court  for  trial  at  the  next  succeeding  term  of  such  court;  and  in  case 
of  such  transfer  neither  party  sliall  lie  required  to  give  an  under- 
taking for  costs. 

530.  Continuance  before  term;  affidavit  for.  Any  party  to  an 

action  may  apply  to  tlic  court  in  wliich  it  is  pending,  or  to  the 
judge  thci'eof,  after  three  days'  notice  in  writing  to  the  adverse 
party,  to  have  the  trial  deferred  to  a  term  subsequent  to  that  in  whicli 
it  is  regularly  triable;  such  a])])licatioii  must  be  made  tliirty  days 


,-,;!()  CIVIL  PROCEDURE— XA7.  Trial.  Cli.   12 

before  the  trial  term,  and  must  be  on  affidavit.  The  court  or  judge 
may  defer  the  trial  as  asked  for,  on  siich  terms  as  shall  be  just,  if 
satisfied — 

1.  That  the  applicant  has  used  due  diligence  to  have  his  case 
ready  for  trial;  and, 

2.  That  by  reason  of  circumstances  beyond  his  control,  which  he 
shall  set  forth,  he  can  not  have  a  fair  trial  at  the  regular  trial  term ; 
if  the  application  is  made  by  reason  of  the  expected  absence  of  a 
witness,  it  shall  state  the  name  and  residence  of  the  witness,  the 
facts  expected  to  be  proved  by  him,  and  the  grounds  for  the  expec- 
tation of  his  nonattendance,  and  that  the  applicant  expects  to  pro- 
cure his  evidence  at  or  before  some  named  subsequent  term.  The 
applicant  shall  in  all  cases  pay  the  costs  of  the  application. 

Code,  s.  401;   C.  C.  P.,  s.  227. 

531.  Continuance  in  term.  The  judge  at  any  time  during  the 
term  at  which  an  action  is  triable,  may  postpone  the  trial  on  the 
application  of  either  party,  and  on  such  terms  as  shall  be  just,  if 
satisfied — 

1.  That  the  applicant  has  used  due  diligence  to  be  ready  for  trial. 

2.  That  he  can  not  have  a  fair  trial  at  that  term,  by  reason  of 
circumstances  stated,  and  if  the  groimd  of  application  be  the  non- 
attendance  of  a  witness,  the  affidavit  shall  contain  the  particulars 
required  by  subdivision  two  of  the  preceding  section.  Unless  the 
applicant  shall  also  set  forth  in  his  affidavit  that  the  facts  upon 
which  his  application  is  grounded  occurred  or  came  to  his  knowledge 
too  late  to  allow  him  to  apply  as  prescribed  in  the  preceding  section, 
and  that  his  application  is  made  as  soon  as  it  reasonably  could  be 
after  the  knowledge  of  such  facts,  the  postponement  shall  not  be 
granted,  except  on  the  terms  of  the  payment  of  the  costs  in  the  action 
for  the  term. 

Code,  s.  402;  C.  C.  P.,  s.  228;  R.  C,  e.  31,  s.  57. 

532.  Counter  affidavits  as  to  continuance.  It  shall  be  compe- 
tent in  all  civil  cases  only  for  the  opposing  side  to  controvert  the 
allegations  of  fact  in  applications  for  continuance,  and  to  offer 
counter  affidavits  to  that  end.  And  the  judge  shall  not  allow  such 
continuance  unless  he  shall  be  satisfied,  after  thorough  examina- 
tion of  the  evidence  as  aforesaid,  that  the  ends  of  justice  demand  it. 

1885,  c.   304. 

533.  Order  of  business.  The  criminal  calendar  shall  be  first 
disposed  of,  unless,  by  consent  of  counsel,  or  for  reasons  satisfactory 
to  the  judge,  particular  criminal  actions  may  be  deferred.  The 
issues  on  the  civil  calendar  shall  be  disposed  of  in  the  following 


533  CIVIL  PEOCEDURE— ZXZ.  Trial.  Ch.  12 

order,  unless,  for  the  convenience  of  parties  or  the  disjjatch  of  busi- 
ness, the  court  shall  otherwise  direct: 

1.  Issues  of  fact  to  be  tried  by  a  jury. 

2.  Issues  of  fact  to  be  tried  by  the  court. 

3.  Issues  of  law. 

Code,  s.  403 ;  C.  C.  P.,  s.  229. 

534.  Separate  trials,  when.  A  separate  trial  between  a  plain- 
tiff and  any  of  the  several  defendants  may  be  allowed  by  the  court, 
whenever,  in  its  opinion,  justice  will  thereby  be  promoted. 

Code,  s.  407;  C.  C.  P.,  s.  230. 

535.  Judge  to  explain  law;  express  no  opinion  on  facts.  No 

judge,  in  giving  a  charge  to  the  petit  jury,  either  in  a  civil  or  a 
criminal  action,  shall  give  an  opinion  whether  a  fact  is  fully  or 
sufficiently  proven,  such  matter  being  the  true  office  and  province 
of  the  jury ;  but  he  shall  state  in  a  plain  and  correct  manner  the  evi- 
dence given  in  the  case  and  declare  and  explain  the  law  arising 
thereon. 

Code,  s.  413;  C.  C.  P.,  s.  237;  R.  C,  c.  31,  s.  130;   1796,  c.  452. 

536.  Instructions  in  writing,  when.  Evei-y  judge,  at  the  request 
of  any  party  to  an  action  on  trial,  made  at  or  befoi-e  the  close  of 
the  evidence,  before  instructing  the  jury  on  the  law,  shall  put  his 
instructions  in  writing,  and  read  them  to  the  jury;  he  shall  then 
sign  and  file  them  with  the  clerk  as  a  part  of  the  record  of  the 
action. 

Code,  s.  414;   C.  C.  P.,  s.  238. 

537.  Written  instructions  in  jury  room,  when.    Whenever  a 

judge  shall  put  his  instructions  to  the  jui'y  in  writing  either  of 
his  own  will  or  at  the  request  of  any  party  to  an  action  on  trial,  he 
shall,  at  the  request  of  either  party  to  the  action,  allow  the  jury 
to  take  his  instructions  with  them  on  their  retirement,  and  the 
jury  shall  return  said  instructions  with  their  verdict  to  the  co\irt. 

1S85,  c.   137. 

538.  Requests  for  instructions.  Counsel  praying  of  the  judge 
instructions  to  the  jury,  shall  put  their  request  in  writing  entitled 
of  the  cause,  and  sign  them;  otherwise  the  judge  may  disregard 
them.     They  shall  be  filed  with  the  clerk  as  a  jiart  of  tlie  record. 

Code,  8.  41.";;   C.  0.  P.,  s.  239. 

539.  Demurrer  to  evidence.    When  on  trlni  of  an  issue  of  fact 

in  a  civil  action,  or  si)ecial  proceeding,  the  plaintiff  .shall  have 
produced  his  evidence  and  rested  his  case,  the  defendant  may  move 


531)  CIVIL  PROCEDUEE— .YX7.  Trial.  Cli.  12 

to  dismiss  the  action,  or  for  judgment,  as  in  case  of  nonsuit.  If 
the  motion  is  allowed  the  plaintiff  may  except  and  ajjpeal  to  the 
sujireme  court.  If  the  motion  is  refused  the  defendant  may  except, 
and  if  the  defendant  introduces  no  evidence  the  jury  shall  pass 
upon  the  issues  in  the  action,  and  the  defendant  shall  have  the 
benefit  of  his  exception  on  appeal  to  the  supreme  court.  But  after 
the  motion  is  refused  he  may  waive  his  exception  and  then  intro- 
duce his  evidence  just  as  if  he  had  not  made  the  motion.  Hut  he 
may  again  move  to  dismiss  after  all  the  evidence  on  both  sides  is 
in.  If  the  motion  is  then  refused,  upon  consideration  of  all  the 
evidence,  he  may  except,  and  after  the  jury  shall  have  rendered  its 
verdict,  he  shall  have  the  benefit  of  such  latter  exception  on  appeal 
to  the  supreme  court. 

1897,  c.   109:    1899,  c.    131;    1901,  e.  594. 

540.  Jury  trial  waived,  how.  Trial  by  jury  may  be  waived  by 
tlio  several  parties  to  an  issue  of  fact,  in  actions  on  contract,  and 
with  the  assent  of  the  court  in  other  actions  in  the  manner  fol- 
lowing : 

1.  By  failing  to  appear  at  the  trial. 

2.  By  written  consent,  in  person  or  by  attorney,  filed  with  the 
clerk. 

3.  By  oral  consent,  entered  in  the  minutes. 
Code,  s.  41G;   C.  C.  P.,  s.  240. 

Note.     See  subchapter  herein.  Controversy  Without  Action,  ss.  803-805. 

541.  Findings  of  fact  and  conclusions  of  law  by  judge.   Upon 

the  trial  of  an  issue  of  fact  by  the  court,  its  decision  shall  be  given 
in  writing,  and  shall  contain  a  statement  of  the  facts  foimd,  and 
tlie  conclusions  of  law  separately;  and  upon  a  trial  of  an  issue  of 
law,  the  decision  shall  be  made  in  the  same  manner,  stating  the 
conclusions  of  law.  Such  decision  shall  be  filed  with  the  clerk 
during  the  court  at  which  the  trial  takes  place.  Judgment  upon 
the  decision  shall  be  entered  accordingly. 
Code,  s.  417;  C.  C.  P.,  s.  241. 

542.  Exceptions,  when  and  how  tal<en.  i.  For  the  purposes  of 

an  appeal,  either  party  may  except  to  a  decision  on  a  matter  of  law 
arising  upon  such  trial  within  ten  days  after  the  judgment,  in  the 
same  manner  and  with  the  same  effect  as  upon  a  trial  by  jury: 
Provided,  that  where  the  decision  does  not  authorize  a  final  judg- 
ment, but  directs  further  proceedings  before  a  referee  or  otherwise, 
I'ither  party  may  except  thereto,  and  make  a  case  or  exception  as 
aliove  provided  in  case  of  an  appeal. 

2.  And  either  party  desiring  a  review,  upon  the  evidence  appear- 
ing on  the  trial  of  the  questions  of  law,  may  at  any  time  within  ten 

141 


542  CIVIL  PROCEDUEE— XA7.   Trial.  Cli.   12 

days  after  the  judgment,  or  within  such  time  as  may  be  prescribed 
by  tlie  rules  of  the  court,  make  a  case  or  exceptions  in  like  manner 
as  upon  a  trial  by  jury,  except  that  the  judge,  in  settling  the  case 
must  briefly  specify  the  facts  found  by  him,  and  his  conchisions 
of  law. 

Code,  s.  418;  C.  C.  P.,  s.  242. 

543.  Proceedings  upon  judgment  on  issue  of  law.  On  a  judg- 
ment for  the  plaintiff  upon  nn  issue  of  law,  the  jdaintiff  may  pro- 
ceed in  the  manner  jjrescribed  by  the  first  two  subdivisions  of  sec- 
tion numbered  five  hundred  and  fifty-six,  ixpon  failure  of  the  defend- 
ant to  answer,  where  the  summons  was  personally  served.  If  judg- 
ment be  for  the  defendant,  upon  an  issue  of  law,  and  if  taking 
of  an  account  or  the  prooi  of  any  fact  be  necessary  to  enable  the  court 
to  complete  the  judginent,  a  reference  or  assessment  by  jury  may  be 
ordered,  as  provided  in  section  niimbered  five  hundred  and  fifty- 
seven. 

Code,  s.  419:  C.  C.  P.,  s.  243. 

XXII.      Issues. 

544.  Defined.  Issues  arise  upon  the  pleadings,  when  a  material 
fact  or  conclusion  of  law  is  maintained  by  the  one  party  and  con- 
troverted by  the  other.      They  are  of  two  kinds: 

1.  Of  law;  and, 

2.  Of  fact. 

Code,  s.  391;   C.  C.  P.,  s.  219. 

545.  Of  law.  An  issue  of  law  arises  upon  a  demurrer  to  the 
complaint,   answer  or  replj',  or  to  some  part  thereof. 

Code,  s.  392;   C.  C.  P.,  s.  220. 

546.  Of  fact.    An  issue  of  fact  arises — 

1.  Upon  a  material  allegation  in  the  complaint  controverted  by 
the  answer ;  or, 

2.  Upon  ucw  matter  in  the  answer,  controverted  by  the  reply;  or, 

3.  Upon  new  matter  in  the  reply,  except  an  issue  of  law  is  joined 
thereon. 

Code,   s.   .393;   C.   C.   P.,   s.   221. 

547.  Which  to  be  first  tried.  Issues  both  of  law  and  of  fact 
may  arise  upon  different  parts  of  the  pleadings  in  tlie  same  action. 
In  such  ca.ses  the  issues  of  law  must  ho  first  tried,  unless  the  coui't 
otherwise  directs. 

Code,  s.  394;  C.  C.  P.,  s.  222. 

548.  When  and  by  whom  made  up.   Tlie  issues  arising  upon 

the  ])leadings,  material   In  be  tried,  shall  Ix'  made  up  by  the  attor- 

142 


:,4S  CIVIL  PROCEDUKE— XA7/.  Issues.  Ch.  12 

iiivs  appearing  in  the  action,   and  reduced  to  writing,  or  by  the 
jmlge  presiding,  before  or  during  the  trial. 

(  nde,   s.   395. 

549.  Form.  Issues  shall  be  framed  in  concise  and  direct  terras, 
and  prolixity  and  confusion  must  be  avoided,  by  not  having  too 
iiiany  issues. 

(ode,  s.  396. 

XXIII.     Verdict. 

550.  General  and  special.  A  general  verdict  is  that  by  which 
flic  jury  pronounce  generally  upon  all  or  any  of  the  issues,  either 
iiL  favor  of  the  plaintiif  or  defendant.  A  special  verdict  is  that 
liv  \\-hich  the  jury  find  the  facts  only,  leaving  the  judgment  to  the 

rulirt. 

Code.   s.  408;    C.  C.   P.,  s.   232. 

551.  Character  of,  for  different  actions.  In  an  action  for  the 

rictjvery  of  specific  personal  property,  if  the  property  has  not  been 
delivered  to  the  plaintifi^,  or  the  defendant  by  his  answer  claims  a 
return  thereof,  the  jury  shall  assess  the  value  of  the  property,  if  their 
^•iTdict  be  in  favor  of  the  plaintiff;  or  if  they  find  in  favor  of  the 
di ■fondant,  and  that  he  is  entitled  to  a  return  thereof,  they  may  at 
ilu'  same  time  assess  the  damages,  if  any  are  claimed  in  the  com- 
I'laint  or  answer,  which  the  prevailing  party  has  sustained  by  reason 
111'  tlie  detention  or  taking  and  withholding  such  property.  In  every 
iiiiion  for  the  recovery  of  money  only,  or  specific  real  property,  the 
JMfv,  in  their  discretion,  may  render  a  general  or  special  verdict. 
Ill  all  other  cases,  the  court  may  direct  the  jury  to  find  a  special 
verdict  in  writing,  upon  all  or  any  of  the  issues ;  and  in  all  cases 
may  instruct  them  if  they  render  a  general  verdict,  to  find  upon 
particular  questions -of  fact,  to  be  stated  in  writing,  and  may  direct 
a  written  finding  thereon.  The  special  verdict  or  finding  shall  be 
filed  with  the  clerk,  and  entered  upon  the  minutes. 
Code,  s.  409;  C.  C.  P.,  s.  233. 

552.  Special  controls  general.  Where  a  special  finding  of  facts 
shall  be  inconsistent  with  the  general  verdict,  the  former  shall  con- 
tiol  the  latter,  and  the  court  shall  give  judgment  accordingly. 

Code,  s.  410;  C.  C.  P.,  s.  234. 

553.  Jury  to  assess  damages,  when;  counterclaim.  When  a  ver- 

<li('t  is  found  for  the  plaintiff  in  an  action  for  the  recovery  of  money, 
or  for  the  defendant  when  a  coiuiterclaim  for  the  recovery  of  money  is 
e-l.ihlished,  beyond  the  amount  of  the  plaintiff's  claim  as  estab- 
1,  the  jury  must  also  assess  the  amount  of  the  recovery;  they 


i-lierl, 


143 


553  CIVIL  PEOCEDURE— XA7//.   Verdict.  Ch.   12 

may  also,  under  the  direction  of  the  court,  assess  the  amount  of  the 
recovery  when  the  court  gives  jiidgment  for  the  phiintiii  on  the 
answer.  If  a  counterclaim,  established  at  the  trial,  exceed  the  plain- 
tiff's demand  so  established,  judgment  for  the  defendant  must  be 
given  for  the  excess ;  or  if  it  appear  that  the  defendant  is  entitled  to 
any  other  affirmative  relief,  judgment  must  be  given  accordingly. 

Code,  s.  411;   C.  C.  P.,  s.  235. 

554.  Entry  of;  motion  for  new  trial;  exceptions,  when  and 

how  taken,  l.  Upon  receiving  a  verdict,  the  clerk  shall  make  an 
entry  in  his  minutes,  specifying  the  time  and  place  of  the  trial, 
the  names  of  the  jurors  and  witnesses,  the  verdict,  and  either  the 
judgment  rendered  thereon,  or  an  order  that  the  cause  be  reserved 
for  argniment  or  further  consideration.  If  a  different  direction 
be  not  given  by  the  court,  the  clerk  must  enter  judgment  in  con- 
formity with  the  verdict. 

3.  If  an  exception  be  taken  upon  the  trial,  it  must  be  reduced 
to  writing  at  the  time  with  so  much  of  the  evidence  or  siibject  mat- 
ter as  may  be  material  to  the  exception  taken ;  the  same  shall  be 
entered  in  the  judge's  minutes  and  be  filed  with  the  clerk  as  a  part 
of  the  case  upon  appeal. 

3.  If  there  shall  be  error,  either  in  the  refusal  of  the  judge  to 
grant  a  prayer  for  instructions,  or  in  granting  a  prayer,  or  in  his 
instructions  generally,  the  same  shall  be  deemed  excepted  to  with- 
out the  filing  of  any  formal  objections. 

4.  The  judge  who  tries  the  cause  may,  in  his  discretion,  entertain 
a  motion,  to  be  made  on  his  minutes,  to  set  aside  a  verdict  and 
grant  a  new  trial  upon  exceptions,  or  for  insufficient  evidence,  or  for 
excessive  damages ;  but  such  motion  can  only  be  heard  at  the  same 
term  at  which  the  trial  is  had.  When  such  motion  is  heard  and 
decided  \ipon  the  minutes  of  the  judge,  and  an  appeal  is  taken 
from  the  decision,  a  case  or  exceptions  must  be  settled  in  the  usual 
form,  upon  which  the  argiunent  of  the  appeal  must  be  had. 

Codo,  s.  412;  C.  C.  P.,  s.  236. 

XXIV.     Judgment. 

555.  Defined.  A  judgment  is  either  interlocutory,  or  the  fimil 
determination  of  the  rights  of  the  parties  in  the  action. 

Codo,  s.  3S4;   C.   C.   P.,  s.  210. 

556.  By  default  final,  when.  .ludgnunt  by  default  linal  may  be 
had  on  failure  of  defendant  to  answer,  as  follows: 

1.  AVherc  complaint  sots  forth  tmv  or  more  causes  of  action,  each 
consisting  of  tlic  lircacli  of  an  express  or  im]>li('(]   contract  to  ])ay, 


55G  CIVIL  PROCEDUEE— XZ77.  Judgment.  Ch.   13 

absolutely  or  upon  a  contingency,  a  sum  or  siuns  of  money  fixed  by 
the  terms  of  the  contract,  or  capable  of  being  ascertained  therefrom 
by  computation.  Upon  proof  of  personal  service  of  summons,  or  of 
service  of  summons  by  publication,  on  one  or  more  of  the  defend- 
ants, and  upon  the  complaint  being  verified,  judgment  shall  be 
entered  at  the  return  terra  for  the  amount  mentioned  in  the  com- 
plaint, against  the  defendant  or  defendants,  or  against  one  or  more 
of  several  defendants. 

2.  Where  the  defendant,  by  his  answer  in  such  action,  shall  not 
deny  the  plaintiff's  claim,  but  shall  set  up  a  counterclaim,  amount- 
ing to  less  than  the  plaintiff's  claim,  judgment  may  be  had  by  the 
plaintiff  for  the  excess  of  said  claim  over  the  said  counterclaim,  in 
like  manner  in  any  such  action,  iipon  the  plaintiff's  filing  with  the 
court  a  statement  admitting  such  counterclaim,  which  statement 
shall  be  annexed  to  and  be  a  part  of  the  judgment  roll. 

3.  In  actions  where  the  service  of  the  summons  was  by  publica- 
tion, the  plaintiff  may,  in  like  manner,  apply  for  judgment,  and 
the  court  must  thereupon  require  proof  to  be  made  of  the  demand 
mentioned  in  the  complaint,  and  if  the  defendant  be  not  a  resident 
of  the  state,  must  require  the  plaintiff  or  his  agent  to  be  examined 
on  oath  respecting  any  payments  that  have  been  made  to  the  plain- 
tiff, or  to  any  one  for  his  iise  on  account  of  such  demand,  and  may 
render  judgnxent  for  the  amount  which  he  is  entitled  to  recover. 
Before  rendering  judgment  the  court  may  in  its  discretion  require 
the  plaintiff  to  cause  to  be  filed  satisfactory  security  to  abide  the 
order  of  the  court  touching  the  restitution  of  any  estate  or  effects 
which  may  be  directed  by  such  judgment  to  be  transferred  or 
delivered,  or  the  restitution  of  any  money  that  may  be  collected 
under  and  by  virtue  of  said  judgment,  in  case  the  defendant  or  his 
representatives  shall  apply  and  be  admitted  to  defend  the  action, 
and  shall  succeed  in  such  defense. 

4.  In  actions  for  the  recovery  of  real  property,  or  for  the  posses- 
sion thereof,  upon  the  failure  of  the  defendant  to  file  the  under- 
taking required  by  law,  or  upon  faihire  of  his  sureties  to  justify 
according  to  law,  unless  the  defendant  is  excused  from  giving  such 
undertaking  before  answering. 

Code,  ss.  385,  390;  C.  C.  P..  s.  217;  1870-1,  c.  42;  1869-70,  c.  193,  s.  4. 
Note.     On  what  judgment  clerk  calculates  interest,  see  ss.  1955,  1956. 

557.  By  default  and  inquiry.  In  all  other  actions,  except  those 
mentioned  in  the  preceding  section,  when  the  defendant  shall  fail 
to  answer,  and  upon  a  like  proof,  judgment  by  default  and  inquiry 
may  be  had  at  the  return  term,  and  inquiry  shall  be  executed  at 
the  next  succeeding  term.  If  the  taking  of  an  intricate  or  long 
account  be  necessary  to  execute  properly  the  inquiry,  the  court,  at 

Rev.  Vol.  1—6  145 


557  CIVIL  PEOCEDURE— XX/r.  Judgment.  Ch.  12 

the  return  term,  may  order  the  accoimt  to  be  taken  by  the  clerk 
of  the  court  or  some  other  fit  ])erson,  and  the  referee  shall  make 
his  report  at  the  next  succeeding  term;  in  all  other  cases,  the 
inquiry  shall  be  executed  by  a  jury,  unless  by  consent  the  court  is 
to  try  the  facts  as  well  as  the  law. 
Code,  s.  386. 

558.  By  default  for  defendant,  when.  If  the  answer  contain  a 

statement  of  new  matter  constituting  a  counterclaim,  and  the  plain- 
tiff fail  to  reply  or  demur  thereto,  the  defendant  may  move  for 
such  judgment  as  he  is  entitled  to  upon  such  statement;  and  if  the 
case  require  it,  an  order  for  an  inquiry  of  damages,  by  a  jury 
may  be  made. 

Code,  s.  249;  C.  C.  P.,  s.  106. 

559.  Rendered  in  vacation,  when.  In  all  cases  where  the  supe- 
rior court  in  vacaticin  has  jurisdiction,  and  all  of  the  parties  unite 
in  the  proceedings,  they  may  apply  for  relief  to  the  superior  court 
in  vacation,  or  in  term  time,  at  their  election. 

Code,  s.  230;    1871-2.  c.   3. 

560.  On  frivolous  pleading.  If  a  demurrer,  ansMer  or  reply  be 
frivolous,  the  party  prejudiced  thereby  may  apply  to  the  court 
or  to  the  judge  thereof  for  judginent  thereon,  and  judgment  may  be 
given  accordingly. 

Code,  s.  388;  C.  C.  P.,  s.  218. 

561.  Stands  until  reversed.  Every  judgment  given  in  a  court 
of  record  having  jurisdiction  of  the  subject,  shall  be,  and  continue 
in  force  until  reversed  according  to  law. 

Code,  s.  935;  P.  C,  c.  31,  s.  103;  4  Hen.  YV.,  c.  23. 

562.  Applicable  to  justice's  courts.  This  subchapter  shall  apply, 
as  near  as  may  be,  to  proceedings  in  courts  of  justices  of  the  peace. 

Code,  s.  389. 

563.  For  whom  and  against  whom  given;  failure  to  prose- 
cute; married  women,  l.  Judgment  may  be  given  for  or  against 
one  or  more  of  several  plaintiffs,  and  for  or  against  one  or  more  of 
several  defeiulants;  and  it  may  determine  the  ultinuitc  rights  of  the 
parties  on  each  side,  as  between   themselves. 

2.  And  it  may  grant  to  the  defendant  any  affirmative  relief  to 
which  he  may  be  entitled. 

3.  In  an  action  against  several  defendants,  the  court  may,  in  its 
discretion,  render  judgment  against  one  or  more  of  tiiem,  leaving 
the  action  to  proceed  against  the  others,  whenever  a  several  judg- 
ment may  be  proper. 

140 


563  CIVIL  PROCEDURE— XX/T'.  Judgment.  Ch.   12 

4.  The  court  may  also  dismiss  the  complaint,  with  costs  in  favor 
of  one  or  more  defendants,  in  case  of  unreasonable  neglect  on  the 
part  of  the  plaintiff  to  serve  the  summons  on  other  defendants,  or 
to  proceed  in  the  cause  against  the  defendant  or  defendants  served. 
In  an  action  brought  by  or  against  a  married  woman,  judgment 
may  be  given  against  her  as  well  for  costs  as  for  damages,  or  both 
for  such  costs  and  for  such  damages,  in  the  same  manner  as  against 
other  persons,  to  be  levied  and  collected  of  her  separate  estate,  and 
not  otherwise. 

Code,  s.  424;   C.  C.  P.,  s.  248. 

564.  How  entered,  party  dying  after  verdict.    In  no  action 

shall  the  death  of  either  party  between  the  verdict  and  the  judg- 
ment be  alleged  for  error,  if  such  judgment  be  entered  within  two 
terms  after  the  verdict. 

Code,  s.  938;  R.  C,  c.  31,  s.  112;  17  Charles  II.,  c.  8. 

565.  Limited   by  demand   in   complaint,   when.    The   relief 

granted  to  the  plaintiff,  if  there  be  no  answer,  can  not  exceed  that 
which  he  shall  have  demanded  in  his  complaint;  but  in  any  other 
case  the  court  may  grant  him  any  relief  consistent  with  the  case 
made  by  the  complaint  and  embraced  within  the  issue. 
Code,  s.  425;  C.  0.  P.,  s.  249. 

566.  Legal  title  with  covenants  passed  by,  when.    In  any 

action  wherein  the  court  shall  declare  that  a  party  is  entitled  to 
the  possession  of  property,  real  or  personal,  the  legal  title  whereof 
may  be  in  another  or  others,  parties  to  the  suit,  and  the  court  shall 
order  a  conveyance  of  such  legal  title  to  him  so  declai*ed  to  be 
entitled,  or  where,  for  any  cause,  the  court  shall  order  that  one  of 
the  parties  holding  property  in  trust  shall  convey  the  legal  title 
therein  to  be  held  in  trust  to  another  jjerson  although  not  a  party, 
the  court,  after  declaring  the  right  and  ordering  the  conveyance, 
shall  have  power  also,  to  be  used  in  its  discretion,  to  declare  in  the 
order  then  made,  or  in  any  made  in  the  progress  of  the  cause,  that 
the  effect  thereof  shall  be  to  transfer  to  the  party  to  whom  the 
conveyance  is  directed  to  be  made,  the  legal  title  of  the  said  prop- 
erty, to  be  held  in  the  same  plight,  condition  and  estate  as  though 
the  conveyance  ordered  was  in  fact  executed;  and  shall  bind  and 
entitle  the  parties  ordered  to  execute  or  to  take  benefit  of  the  con- 
veyance, in  and  to  all  such  provisions,  conditions  and  covenants 
as  may  be  adjudged  to  attend  the  conveyance,  in  the  same  man- 
ner and  to  the  same  extent  as  the  conveyance  would  if  the  same 
were  executed  according  to  the  order.  And  any  party  taking  benefit 
under  the  judgment  may  have  the  same  redress -at  law  on  account 


566  CIVIL  PKOCEDURE— ZX/T.  Judgment.  Ch.  12 

of  the  matter  adjudged  as  he  might  on  the  conveyance,  if  the 
same  had  been  executed. 

Code,  s.  420;  R.  C,  c.  32,  s.  24;  1850,  c.  107;  1874-5,  c.  17. 

567.  Regarded  as  a  deed  and  registered,  when.  Every  judg- 
ment, in  which  the  transfer  of  title  shall  be  so  declared,  shall  be 
regarded  as  a  deed  of  conveyance,  executed  in  due  form  and  by 
capable  persons,  notwithstanding  the  want  of  capacity  in  any  per- 
son ordered  to  convey,  and  shall  be  registered  in  the  proper  county, 
under  the  same  rules  and  regulations  as  may  be  prescribed  for  con- 
veyances of  similar  property  executed  by  the  party ;  and  all  laws 
which  may  be  passed  for  extending  the  time  for  registration  of 
deeds  shall  be  deemed  to  include  such  judgments,  provided  the  con- 
veyance, if  actually  executed,  would  be  so  included. 

Code,  s.  427;  R.  C,  c.  32,  s.  25;  1850,  c.  107,  s.  2;  1874-5,  c.  17,  s.  2. 

568.  How  registered.  The  party  desiring  registration  of  such 
judgment  shall  produce  to  the  register  a  copy  thereof,  certified  by 
the  clerk  of  the  court  in  which  it  is  enrolled,  under  the  seal  of  the 
court,  and  the  register  shall  record  both  the  judgment  and  cer- 
tificate. 

Code,  s.  429;  R.  C,  c.  32,  s.  27;  1850,  c.  107,  s.  4;  1874-5,  c.  17,  s.  4. 

569.  Certified  registered  copy  evidence.  In  all  legal  proceed- 
ings, touching  the  right  of  parties  derived  under  such  judgment, 
a  certified  copy  thereof  from  the  register's  books  shall  be  evidence 
of  its  existence  and  of  the  matters  therein  contained,  as  fully  as  if 
the  same  were  proved  by  a  perfect  transcript  of  the  whole  case. 

Code,  s.  428;  R.  C,  c.  32,  s.  26;  1850,  c.  107,  s.  3;  1874-5,  c.  17,  s.  3. 

570.  In  action  for  recovery  of  personal  property,  in  an  action 

to  recover  the  possession  of  personal  property,  judgment  for  the 
plaintiff  may  be  for  the  possession,  or  for  the  recovery  of  posses- 
sion, or  for  the  value  thereof,  in  case  a  delivery  can  not  be  had, 
and  the  damages  for  the  detention.  If  the  property  has  been  de- 
livered to  the  plaintiff,  and  the  defendant  claims  a  return  thereof, 
judgment  for  the  defendant  may  be  for  a  return  of  the  property, 
or  for  the  value  thereof  in  case  a  return  can  not  be  had,  and  dam- 
ages for  taking  and  withholding  the  same. 
Code,  s.  431;  C.  C.  P.,  s.  251. 

571.  What  judge  approves  judgments.  In  all  eases  where  a 

judgment,  decree  or  order  of  the  superior  court  is  required  to  be 
approved  by  a  judge,  it  shall  be  approved  by  the  judge  having 
jurisdiction  of  receivers  and  injunctions. 

Code,  s.  432;  1876-7,  c.  223,  s.  3;  1879,  c.  63;  1881,  c.  51. 

Note.     For  judge  approving  when  infants  are  petitioners,  see  s.  720. 

148 


572  CIVIL  PEOCEDURE— ZA7T'.  Judgment.  Ch.  12 

572.  Judgment  roll.  Unless  the  party  or  his  attorney  shall  fur- 
nish a  judgment  roll,  the  clerk,  immediately  after  entering  the 
judgment,  shall  attach  together  and  file  the  following  papers  which 
shall  constitute  the  judgment  roll : 

1.  In  case  the  comj^laint  be  not  answered  by  any  defendant,  the 
summons  and  compjlaint,  or  cojjies  thereof,  jjroof  of  service,  and  that 
no  answer  has  been  received,  the  report,  if  any,  and  a  copy  of  the 
judgment. 

2.  In  all  other  cases,  the  summons,  pleadings,  or  copies  thereof, 
and  a  copy  of  the  judgment,  with  any  verdict  or  report,  the  offer 
of  the  defendant,  exceptions,  case,  and  all  orders  and  papers  in  any 
way  involving  the  merits  and  necessarily  affecting  the  judgment. 

Code,  s.  434;  C.  C.  P.,  s.  253. 

573.  Docketed  and  indexed;  all  of  same  term  as  of  first  day. 

Every  judgment  of  the  superior  court,  affecting  the  right  to  real  prop- 
erty, and  any  judgment  requiring  in  whole  or  in  part  the  payment 
of  money,  shall  be  entered  by  the  clerk  of  said  superior  court  on  the 
judgment  docket  of  said  court.  The  entry  shall  contain  the  names 
of  the  parties,  and  the  relief  granted,  date  of  judgment  and  date  of 
docketing;  and  the  clerk  shall  keep  a  cross-index  of  the  whole,  with 
the  dates  and  nmnbers  thereof.  All  judgments  rendered  in  any 
county  by  the  superior  court  thereof,  during  a  term  of  the  court,  and 
docketed  during  the  same  term,  or  within  ten  days  thereafter,  shall 
be  held  and  deemed  to  have  been  rendered  and  docketed  on  the  first 
day  of  said  term. 

Code,  s.  433;  C.  C.  P.,  s.  252;  Supr.  Ct.  Rule  VIII. 

574.  When,  where  and  how  docketed;  lien.  Upon  filing  a  judg- 
ment roll  upon  a  judgment  affecting  the  title  of  real  property,  or 
directing  in  whole  or  in  part  the  payment  of  money,  it  shall  be 
docketed  on  the  judgment  docket  of  the  superior  court  of  the  county 
where  the  judgment  roll  was  filed,  and  may  be  docketed  on  the  judg- 
ment docket  of  the  superior  court  of  any  other  county  upon  the 
filing  with  the  clerk  thereof  a  transcript  of  the  original  docket,  and 
shall  be  a  lien  on  the  real  property  in  the  county  where  the  same  is 
docketed,  of  every  person  against  whom  any  such  judgment  shall 
be  rendered,  and  which  he  may  have  at  the  time  of  the  docketing 
thereof  in  the  county  in  which  such  real  property  is  situated,  or 
which  he  shall  acquire  at  any  time  thereafter,  for  ten  years  from  the 
date  of  the  rendition  of  the  judgment.  But  the  time  during  which 
the  i^arty  recovering  or  owning  such  judgment  shall  be,  or  shall  have 
been,  restrained  from  proceeding  thereon  by  an  order  of  injunc- 
tion, or  other  order,  or  by  the  operation  of  any  appeal,  or  by  a  statu- 
tory prohibition,  shall  not  constitute  any  part  of  the  ten  years  afore- 


574  CIVIL  PEOCEDUEE— XA7T'.  Judgment.  Ch.   12 

said,  as  against  the  defendant  in  snch  judgment,  or  the  party  obtain- 
ing snch  orders  or  making  such  appeal,  or  any  other  person  who  is 
not  a  purchaser,  creditor  or  mortgagee  in  good  faith. 

Code,  s.  435;  C.  C.  P.,  s.  254. 

Note.  Statute  of  limitation  does  not  run  against  judgment  when  homestead 
allotted,  see  s.  685. 

575.  Of  supreme  court  docketed  in  superior  court;  lien;  tran- 
script. It  shall  be  the  duty  of  the  clerk  of  the  supreme  court,  on 
application  of  the  party  obtaining  judgment  in  said  court,  directing 
in  whole  or  in  part  the  payment  of  money,  or  affecting  the  title  to 
real  estate,  or  on  the  like  application  of  the  attorney  of  record  of 
said  party,  to  certify  under  his  hand  and  the  seal  of  said  court  a 
transcript  of  said  judgment,  setting  forth  the  title  of  said  court,  the 
names  of  the  parties  thereto,  the  relief  granted,  that  said  judgment 
was  so  rendered  by  said  court,  the  amount  and  date  of  said  judgment, 
what  part  thereof  bears  interest  and  from  what  time ;  and  said  clerk 
shall  send  such  certificate  and  transcript  to  the  clerks  of  the  superior 
court  of  such  counties  as  he  may  be  directed ;  and  the  clerk  of  the 
sujierior  court  receiving  the  said  certificate  and  transcript  shall 
docket  the  same  in  like  manner  as  judgment  rolls  of  the  superior 
court  may  be  docketed.  And  when  so  docketed,  the  lien  of  said 
judgment  shall  be  the  same  in  all  respects,  be  subject  to  the  same 
restrictions  and  qualifications,  and  the  time  shall  be  reckoned  as  is 
provided  and  prescribed  in  the  preceding  sections  for  judgments  of 
the  superior  court,  so  far  as  the  same  may  be  applicable.  The  party 
desiring  the  certificate  and  transcript  provided  for  in  this  section, 
may  obtain  the  same  at  any  time  after  such  jitdgment  has  been  ren- 
dered, unless  the  sujDreme  court  shall  otherwise  direct. 

Code,  s.  436;   1881,  c.  75,  ss.  1,  4. 

576.  Federal  court  judgments  docketed;  lien.  Judgments  and 

decrees  I'endered  in  the  circuit  and  district  courts  of  the  United 
States  within  this  state  may  be  docketed  on  the  judgtnent  dockets  of 
the  superior  courts  in  the  several  counties  of  this  state  for  the  pur- 
pose of  creating  liens  of  such  judgments  and  decrees  upon  property 
within  the  county  where  the  same  may  be  so  docketed  in  like  manner 
as  the  judgments  of  said  superior  courts  may  be  docketed,  for  the 
purpose  of  creating  liens  upon  property,  but  in  no  other  manner, 
extent  or  order  than  as  contemplated,  provided  and  intended  by  the 
act  of  Congress  entitled  "An  act  to  regulate  the  liens  of  judgments 
and  decrees  of  the  courts  of  the  United  States,"  approved  August 
first,  one  thousand  eight  hundred  and  eighty-eight.  And  it  shall  be 
the  duty  of  the  clerks  of  the  said  superior  courts,  Avhen  a  judgment 
roll  of  said  circuit  and  district  courts  shall  be  filed  with  him,  to 
docket  the  same  as  judgments  of  the  said  superior  courts  are  required 
to  be  docketed. 

1889,  c.  430.  150 


577  CIVIL  PROCEDURE— XX7F.  Judgment.  Ch.  12 

577.  Judgment  paid  to  clerk;  docket  credited;  transcript  to 

other  counties.  The  party  agaiust  whom  any  judiiinent  lor  the  pay- 
ment of  money  may  be  rendered,  by  any  court  of  record,  may  pay 
the  whole,  or  any  part  thereof,  to  the  clerk  of  the  court  in  which  the 
same  may  have  been  rendered,  at  any  time  thereafter,  although  no 
execution  may  have  issued  on  such  judgment;  and  such  payment  of 
money  shall  be  good  and  available  to  the  party  making  the  same, 
and  the  clerk  shall  enter  the  payment  on  the  judgment  docket  of  the 
court,  and  immediately  forward  a  certificate  thereof  to  the  clerk  of 
the  superior  coiirt  of  each  county,  to  whom  a  transcript  of  said  judg- 
ment has  been  sent,  and  the  clerk  of  such  superior  court  shall  enter 
the  same  on  the  judgment  docket  of  such  court  and  file  the  orginal 
with  the  judgment  roll  in  the  action. 

Code,  s.  438^  R.  C,  c.  31,  s.  127;   1823,  c.  1212. 

578.  Clerk  to  pay  money  to  party  entitled.  The  clerk,  to  whom 

money  shall  be  paid  as  aforesaid,  shall  pay  the  same  to  the  party 
entitled  to  receive  it,  under  the  same  rules  and  penalties  as  if  the 
money  had  been  paid  into  his  office  by  virtue  of  an  .execution. 
Code,  s.  439;  E.  C,  c.  31,  s.  128;  1823,  c.  1212,  s.  2. 

579.  Credits  upon  judgments.  Where  any  payment  has  been 
made  on  any  judgment  docketed  in  the  office  of  the  clerk  of  the 
superior  court,  and  no  entry  thereof  has  been  made  on  the  judgment 
docket,  or  where  any  docketed  judgment  appealed  from  has  been 
reversed  or  modified  on  appeal  and  no  entry  thereof  has  been  made 
on  such  docket,  any  jjerson  interested  therein  may  move  in  the  cause 
before  the  clerk,  upon  affidavit  after  notice  to  all  persons  interested, 
to  have  such  credit,  reversal  or  modification  entered;  and  upon  the 
hearing  before  the  clerk  he  may  hear  affidavits,  oral  testimony,  deposi- 
tions and  any  other  competent  evidence,  and  shall  render  his  judg- 
ment ;  from  which  any  party  may  appeal  in  the  same  manner  as  in 
appeals  in  special  proceedings.  On  the  trial  of  any  issue  of  fact  on 
such  appeal  either  party  may  demand  a  jury  trial,  which  shall  be 
had  upon  the  evidence  before  the  clerk,  which  he  shall  reduce  to 
^v^iting.  On  a  final  judgment  ordering  any  such  credit,  reversal  or 
modification,  transcript  thereof  shall  be  sent  by  the  clerk  of  the  supe- 
rior court  to  each  county  in  which  the  original  judgment  has  been 
docketed,  and  the  clerk  of  such  county  shall  enter  the  same  on  the 
judgTuent  docket  of  his  county  opposite  such  judgment  and  file  the 
transcript.  No  final  process  shall  issue  on  any  such  judgment  after 
affidavit  filed  in  the  cause  until  the  motion  for  credit,  reversal  or 
modification  shall  have  been  finally  disposed  of. 

1903,  c.  558. 


NoTK.     For    form    of   judgment    for   purchase-money    of    land,    see    subchapter 
Execution,  s.  627. 

For  estoppel  of  judgment  after  amendment,  see  s.  508. 

l.ol 


580   CIVIL  PROCEDURE— -YXr.  Judgment  Confessed.    Ch.   12 

XXY.     Judgment  Confessed. 

580.  When  and  for  what.  A  judgment  by  confession  may  be 
entered  without  action  either  in  or  out  of  term,  cither  for  money 
due  or  to  become  due,  or  to  secure  any  person  against  contingent 
liability  on  behalf  of  the  defendant,  or  both,  in  the  manner  pre- 
scribed by  this  subchapter. 

Code,  s.  570;   C.  C.  P.,  s.   325. 

581.  Debtor  to  make  verified  statement.  A  statement  in  writing 

must  be  made,  sigTied  by  the  defendant,  and  verified  by  his  oath,  to 
the  following  effect: 

1.  It  must  state  the  amoimt  for  which  judgment  may  be  entered, 
and  authorize  the  entry  of  judgment  therefor. 

2.  If  it  be  for  money  due,  or  to  become  due,  it  must  state  con- 
cisely the  facts  out  of  which  it  arose,  and  must  show  that  the  sum 
confessed  therefor  is  justly  due,  or  to  become  due. 

3.  If  it  be  for  the  purpose  of  securing  the  plaintiff  against  a 
contingent  liability,  it  must  state  concisely  the  facts  constituting 
the  liability,  and  must  show  that  the  sum  confessed  therefor  does 
not  exceed  the  same. 

Code,  3.  571;   C.  C.  P.,  s.  326. 

582.  Judgment;  costs;  execution;  when  due  by  instalments. 

The  statement  may  be  filed  with  the  clerk  of  the  superior  court  of 
the  county  in  which  the  defendant  resides,  or  if  he  does  not  reside 
in  the  state,  of  some  county  in  which  he  has  property.  The  clerk 
shall  indorse  upon  it  and  enter  on  his  judgment  docket  a  judgment 
of  the  court  for  the  amount  confessed,  with  three  dollars  costs, 
together  with  disbursements.  The  statement  and  affidavit,  with  the 
judgment  indorsed,  shall  thenceforth  become  the  judgment  roll. 
Executions  may  be  issued  and  enforced  thereon  in  the  same  man- 
ner as  upon  judgments  in  other  cases  in  such  courts.  When  the 
debt  for  which  the  judgment  is  recovered  is  not  all  due,  or  is  paya- 
ble in  instalments,  and  the  instalments  are  not  all  due,  the  execu- 
tion may  issue  upon  such  judgment  for  the  collection  of  such  instal- 
ments as  have  become  due,  and  shall  be  in  the  usual  form;  but  shall 
have  indorsed  thereon,  by  the  attorney  or  person  issuing  the  same,  a 
direction  to  the  sheriff'  to  collect  the  amount  due  on  s\ich  judgment, 
with  interest  and  costs,  which  amount  shall  be  stated,  with  interest 
thereon,  and  costs  of  said  judgment.  JSTotwithstanding  the  issue 
and  collection  of  such  execution,  the  judgment  shall  remain  as 
security  for  the  instalments  thereafter  to  become  dtic;  and  when- 
ever any  further  instalment  becomes  due,  execution  may,  in  like 
manner,  be  issued  for  the  collection  and  enforcement  of  the  same. 

Code,  s.  572;  C.  C.  P.,  s.  327. 

152 


583  CIVIL  PROCEDUEE— A'XT7.  Appeal.  Cb.  12 

XXVI.     Appeal. 

583.  Writs  of  error  abolished.  Writs  of  error  in  civil  actions 
are  abolished ;  and  tbe  only  mode  of  reviemng  a  judgment,  or  order, 
in  civil  action,  sball  be  that  prescribed  by  this  chapter. 

Code,  s.  544;  C.  C.  P.,  s.  296. 

584.  Certiorari,  recordari  and  supersedeas.  Writs  of  certio- 
rari, recordari  and  supersedeas  are  hereby  authorized  as  heretofore 
in  use.  The  vs^rits  of  certiorari  and  recordari,  when  used  as  substi- 
tutes for  an  appeal,  may  issue  when  ordered  upon  the  applicant 
filing  a  wi'itten  undertaking  for  the  costs  only;  but  the  supersedeas, 
to  suspend  execution,  shall  not  issue  until  an  undertaking  is  filed, 
or  a  deposit  made  to  secure  the  judgment  sought  to  be  vacated,  as 
in  cases  of  appeal  where  the  execution  is  stayed. 

Code,   s.  545;    1874-5,  c.   109. 

585.  Who  may  appeal.  Any  party  aggi-ieved  may  appeal  in  the 
cases  prescribed  in  this  chapter. 

Code,  s.  547;  C.  C.  P.,  s.  298. 

586.  From  clerk  to  judge.  Appeals  shall  lie  to  the  judge  of  the 
superior  court  having  jurisdiction,  either  in  term  time  or  vacation, 
from  judgments  of  the  clerk  of  the  superior  court  in  all  matters  of 
law.  In  case  of  such  transfer  or  appeal  neither  party  shall  be 
required  to  give  an  undertaking  for  costs ;  and  the  clerk  shall  trans- 
mit, on  such  transfer  or  appeal,  to  the  superior  court,  or  to  the  judge 
thereof,  the  pleadings,  or  other  papers,  on  which  the  issues  of  fact  or 
of  law  arise.  An  appeal  must  be  taken  within  ten. days  after  the 
entry  of  the  order  or  judgment  of  the  clerk.  But  an  appeal  can  only 
be  •  taken  by  a  party  aggTieved,  who  appeared  and  moved  for,  or 
opposed  the  order  or  judgment  appealed  from,  or  who,  being  entitled 
to  be  heard  thereon,  had  no  opportunity  of  being  heard,  which  fact 
may  be  shown  by  affidavit  or  other  proof. 

Code,  s.  116. 

587.  In  what  oases  taken.  An  appeal  may  be  taken  from  every 
judicial  order  or  determination  of  a  judge  of  a  superior  court,  upon 
or  involving  a  matter  of  law  or  legal  inference,  whether  made  in  or 
out  of  term,  which  affects  a  substantial  right  claimed  in  any  action 
or  proceeding;  or  which  in  effect  determines  the  action,  and  pre- 
vents a  judgment  from  which  an  appeal  might  be  taken ;  or  discon- 
tinues the  action,  or  grants  or  refuses  a  new  trial. 

Code,  s.  548;  C.  C.  P.,  s.  299;  1818,  c.  962,  s.  4. 

Note.  For  appeal  in  creditors'  proceeding  against  personal  representative, 
see  s.  119. 


588  CIVIL  PROCEDURE— A'-Y  17.  Appeal  CL  12 

588.  From  judge  in  special  proceedings,    .biv  party,  within  ten 

daj's  after  notice  of  such  judgment,  may  appeal  to  the  supreme 
court  of  the  state  from  such  judgment,  ujion  any  matter  of  law  or 
legal  inference  therein,  under  the  regitlations  provided  for  appeals 
in  other  cases.  But  execution  shall  not  be  suspended  until  the 
tmdertakings  required  by  law  shall  have  been  given.  If  issues, 
both  of  law  and  of  fact,  or  issues  of  fact  only,  are  raised  before 
the  clerk  of  the  superior  court,  he  shall  transfer  the  case  to  the  civil 
issiie  docket  for  trial  of  the  issues  at  the  ensuing  term  of  the  supe- 
rior court. 

Code,  s.  256;  C.  C.  P.,  s.  115. 

589.  Interlocutory  orders  reviewed  on  appeal  from  judgment. 

Upon  an  appeal  from  a  judginent,  the  court  may  review  any  inter- 
mediate order  involving  the  merits  and  necessarily  affecting  the 
judgment. 

Code,  s.  562;   C.  C.  P.,  s.  313. 

590.  When  taken;  execution  stayed,  when.  The  appeal  must  be 

taken  from  a  judgment  rendered  out  of  term  within  ten  days  after 
notice  thereof,  and  from  a  judgment  rendered  in  term  within  ten 
days  after  its  rendition,  unless  the  record  shows  an  appeal  taken  at 
the  trial,  which  shall  be  sufficient,  but  execution  shall  not  be  sus- 
pended until  the  giving  by  the  appellant  of  the  undertakings  herein- 
after required. 

Code,  s.  549;    1889,  c.   161;   C.  C.  P.,  s.  300. 

591.  Entered  on  docket;  case  on  appeal,  how  stated  and  set- 
tled; penalty  on  judge  failing  to  settle.  Witliiu  the  time  prescribed 

in  the  preceding  section,  the  appellant  shall  cause  his  appeal  to  be 
entered  by  the  clerk  on  the  judgment  docket,  and  notice  thereof  to  be 
given  to  the  adverse  party  unless  the  record  shows  an  appeal  taken 
or  prayed  at  the  trial,  which  shall  be  sufficient.  He  shall  cause  to 
be  prepared  a  concise  statement  of  the  case,  embodying  the  instruc- 
tions of  the  judge  as  signed  by  him,  if  there  be  an  exception  thereto, 
and  the  requests  of  the  counsel  of  the  parties  for  instructions  if 
there  be  any  exception  on  account  of  the  granting  or  withholding 
thereof,  and  stating  separately  in  articles  numbered,  the  errors 
alleged.  A  copy  of  this  statement  shall  be  served  on  the  respondent 
within  fifteen  days  from  the  cuti-y  of  the  appeal  taken  ;  within  ten 
days  after  such  service  the  respondent  shall  return  the  copy  with 
his  approval  or  specific  amendments  indorsed  or  attached ;  if  the 
case  be  approved  by  the  respondent,  it  shall  be  filed  with  the  clerk 
as  a  part  of  the  record ;  if  not  returned  with  objections  within  the 
time  prescribed,  it  shall  be  deemed  approved ;  if  returned  with  objec- 


591  CIVIL  PEOCEDURE— XXFZ.  Appeal  Ch.  12 

tions  as  prescribed,  the  appellant  shall  immediately  request  the 
judge  to  fix  a  time  and  place  for  settling  the  case  before  him;  and 
the  judge  shall  forthwith  notify  the  attorneys  of  the  parties  to 
appear  before  him  for  that  purpose  at  a  certain  time  and  place, 
within  the  judicial  district,  which  time  shall  not  be  more  than 
twenty  days  from  the  receipt  of  such  reqiTSst;  and  at  the  time  and 
place  stated,  the  judge  shall  settle  and  sign  the  case,  and  deliver  a 
copy  to  the  attorney  of  each  party,  or  if  the  attorneys  be  not  present, 
file  a  copy  in  the  oifice  of  the  clerk  of  the  court:  Provided,  that  if 
the  judge  shall  have  left  the  district  before  the  notice  of  disagTee- 
ment,  he  may  settle  the  case  without  returning  to  the  district.  In 
settling  the  case,  the  written  instructions  signed  by  the  judge,  and 
the  written  requests  for  instructions  signed  by  the  counsel,  and 
the  written  exceptions  shall  be  deemed  conclusive  as  to  what  such 
instructions,  requests  and  exceptions  were.  If  a  copy  of  the  case 
settled  was  delivered  to  the  appellant,  he  shall  within  five  days 
thereafter  file  the  same  with  the  clerk,  and  in  case  he  fails  to  do  so, 
the  respondent  may  file  his  copy.  The  judge  shall  settle  the  case  on 
appeal  within  sixty  days  after  the  termination  of  a  special  term  or 
after  the  courts  of  the  district  shall  have  ended,  and  if  the  judge 
in  the  meantime  shall  have  gone  out  of  office,  he  shall  settle  the  case 
as  if  he  were  still  in  office,  and  any  judge  failing  to  comply  with 
this  section  shall  be  liable  to  a  penalty  of  five  hundred  dollars,  for 
the  use  of  any  person  who  will  sue  for  the  same. 
Code,  s.  550;  1889,  c.  161;  C.  C.  P.,  s.  301;  1905,  c.  448. 

592.  Clerk  to  prepare  transcript.  The  clerk  on  receiving  a  copy 
of  the  case  settled,  as  required  in  the  preceding  section,  shall  make 
a  copy  of  the  judgment  roll  and  of  the  case,  and  within  twenty 
days  transmit  the  same,  duly  certified  to  the  clerk  of  the  supreme 
court.  The  clerk,  except  in  cases  where  parties  are  allowed  to 
appeal  without  giving  an  undertaking  on  appeal,  shall  not  be  re- 
quired to  make  the  copy  of  the  record  in  the  case  for  the  supreme 
court  imtil  the  appellant  shall  have  given  the  undertaking  on  appeal 
or  made  the  deposit  required. 

Code,  s.  551;   1889,  c.  135;  C.  C.  P.,  s.  302. 

593.  Undertaking  on  appeal;  filed  in  supreme  court,  when.  To 

render  an  appeal  effectual  for  any  purpose  in  any  civil  cause  or 
special  proceeding,  a  written  undertaking  miist  be  executed  on  the 
part  of  the  appellant,  with  good  and  sufficient  surety,  in  such  sum 
as  may  be  ordered  by  the  court,  not  to  exceed  the  siun  of  two  hun- 
dred and  fifty  dollars,  to  the  effect  that  the  appellant  will  pay  all 
costs  which  may  be  awarded  against  him  on  the  appeal ;  or  such  sum 
as  may  be  ordered  by  the  court  must  be  deposited  with  the  clerk  by 


593  CIVIL  PEOCEDUKE— ZXrZ.  Appeal  Ch.  12 

whom  the  judgment  or  order  was  entered,  to  abide  the  event  of  the 
appeal ;  such  undertaking  or  deposit  may  be  waived  by  a  written  con- 
sent on  the  part  of  the  respondent.  jSTo  appeal  shall  be  dismissed 
in  the  supreme  court  on  the  ground  that  the  undertaking  on  appeal 
was  not  filed  earlier  or  the  deposit  made  earlier,  if  the  undertaking 
shall  be  filed  or  such  deposit  made  before  the  record  of  the  case  is 
transmitted  by  the  clerk  of  the  superior  court  to  the  supreme  court. 
And  when  no  undertaking  on  appeal  has  been  filed,  or  deposit  made 
before  the  record  of  the  case  is  transmitted  to  the  supreme  court,  the 
supreme  court  shall,  upon  good  cause  being  shown,  on  such  terms 
as  may  be  just,  allow  the  appellant  to  file  an  undertaking  or  make 
the  deposit. 

Code,  s.  552;  18S9,  e.  135,  s.  2;  C.  C.  P.,  s.  303;   1871-2,  c.  31. 

594.  Justification  of  sureties.  An  undertaking  upon  an  appeal 
must  be  accompanied  by  the  aifidavit  of  one  of  the  sureties  that  he  is 
worth  double  the  amount  specified  therein.  The  respondent  may, 
however,  except  to  the  sufficiency  of  the  sureties  within  ten  days  after 
the  notice  of  the  appeal ;  and  unless  they  or  other  sureties  justify 
within  ten  days  thereafter,  the  appeal  shall  be  regarded  as  if  no 
ixndertaking  had  been  given.  The  justification  shall  be  \ipon  a 
notice  of  not  less  than  five  days. 

Code,  s.  560;   C.  C.  P.,  s.  310;    1887,  c.   121. 

595.  Undertaking  to  be  filed  witii  clerl<.  The  undertaking  must 

be  filed  with  the  clerk  with  whom  the  judgment  or  order  appealed 
from  was  entered.  This  chapter  as  to  the  security  to  be  given  upon 
appeals,  and  as  to  the  stay  of  proceedings,  shall  apply  to  all  appeals 
taken  to  the  supreme  court. 

Code,  s.  561;  C.  C.  P.,  s.  312. 

596.  Notice  of  motion  to  dismiss  for  irregularity;  new  bond  or 

deposit.  Before  the  appellee  shall  be  permitted  to  move  to  dismiss 
an  appeal,  either  for  any  irregularity  in  the  undertaking  on  appeal, 
or  for  failure  of  the  sureties  to  justify,  he  shall  give  written  notice 
to  the  appellant  of  such  motion  to  dismiss  at  least  twenty  days  before 
the  district  from  which  the  cause  is  sent  up  is  called,  which  shall 
state  the  grounds  upon  which  the  motion  is  based.  In  all  such 
cases  at  least  five  days  before  the  district  from  wliich  the  cause  is 
sent  up  is  called,  the  appellant  may  file  with  the  clerk  of  the  supreme 
court  a  new  bond  justified  according  to  law.  The  penalty  in  the 
new  bond  sluill  be  the  same  in  amount  as  the  penalty  in  the  original 
bond,  or  in  lieu  of  filing  such  new  bond  the  appellant  may  deposit 
with  the  clerk  of  the  supreme  court  a  sura  of  money  equal  to  the 
penalty   in   the   original   bond.      When   a   new   bond    has   been   thus 


596  CIVIL  PROCEDURE— XXFJ.  Appeal.  Ch.  12 

filed  or  deposit  made  the  cause  shall  stand  as  if  the  bond  had  been 
duly  given  or  deposit  duly  made  in  the  coiirt  below. 

1887.   c.    121. 

597.  Appeals  in  forma  pauperis.  When  any  party  to  a  civil 
action  tried  and  determined  in  the  superior  court  shall,  at  the  time 
of  trial,  desire  an  appeal  from  the  judgment  rendered  in  said  action 
to  the  supreme  court,  and  shall  be  unable,  by  reason  of  his  poverty, 
to  make  the  deposit  or  to  give  the  security  required  by  law  for  said 
appeal,  it  shall  be  the  duty  of  the  judge  or  clerk  of  said  superior 
court  to  make  an  order  allowing  said  party  to  appeal  from  said 
judgment  to  the  supreme  court  as  in  other  cases  of  appeal,  without 
giving  security  therefor :  Provided,  that  the  party  desiring  to  appeal 
from  said  judgment  shall  within  five  days  make  affidavit  that  he 
is  unable  by  reason  of  his  poverty  to  give  the  security  required  by 
law  for  said  appeal,  and  that  said  party  is  advised  by  counsel  learned 
in  the  law  that  there  is  error  in  matter  of  law  in  the  decision  of  the 
superior  court  in  said  action :  Provided  further,  that  said  affidavit 
shall  be  accompanied  by  a  written  statement  from  a  practicing 
attorney  of  said  superior  court  that  he  has  examined  the  affiant's 
case,  and  that  he  is  of  opinion  that  the  decision  of  the  superior 
court,  in  said  action,  is  contrary  to  law :  Provided,  that  the  appeal 
when  passed  upon  and  granted  by  the  clerk  shall  be  within  ten 
days  from  the  expiration  by  law  of  said  term  of  court. 

Code,  s.  553;   1889,  e.  161;   1873-4,  c.  60. 

598.  Undertaking  to  stay  proceedings,  money  demand;  perish- 
able property  sold.  If  the  appeal  be  from  a  judgment  directing 
the  i^ayment  of  money,  it  shall  not  stay  the  execution  of  the  judg- 
ment unless  a  written  undertaking  be  executed  on  the  part  of  the 
appellant,  by  one  or  more  sureties,  to  the  effect  that  if  the  judgment 
appealed  from,  or  any  part  thereof,  be  affirmed,  or  .the  appeal  be 
dismissed,  the  appellant  will  pay  the  amount  directed  to  be  paid 
by  the  judgment,  or  the  part  of  such  amount  as  to  which  the  judg- 
ment shall  be  affirmed,  if  it  be  affirmed  only  in  part,  and  all  dam- 
ages which  shall  be  awarded  against  the  appellant  upon  the  appeal. 
Whenever  it  shall  be  satisfactorily  made  to  appear  to  the  court  that 
since  the  execution  of  the  iindertaking  the  sureties  have  become 
insolvent,  the  court  may,  by  rule  or  order,  require  the  appellant 
to  execute,  file  and  serve  a  new  undertaking,  as  above ;  and  in  case 
of  neglect  to  execute  such  undertaking  within  twenty  days  after 
the  service  of  a  copy  of  the  rule  or  order  requiring  such  new  under- 
taking, the  appeal  may,  on  motion  to  the  court,  be  dismissed  with 
costs.  Whenever  it  shall  be  necessary  for  a  party  to  any  action  or 
proceeding  to  give  a  bond  or  an  undertaking  with  surety  or  sure- 


598  CIVIL  PEOCEDURE— XXTV.  Ajypeal.  Ch.  12 

ties,  he  may,  iu  lieu  thereof,  deposit  with  the  officer  into  court  as 
the  case  may  require,  money  to  the  amount  for  which  such  bond 
or  undertaking  is  to  be  given.  The  co\irt  in  which  such  action  or 
proceeding  is  pending  may  direct  what  disposition  shall  be  made 
of  such  money  pending  the  action  or  pi'oceeding.  In  any  ease 
where,  by  this  section,  the  money  is  to  be  deposited  with  an  officer, 
a  judge  of  the  court  at  any  time,  upon  the  application  of  either 
party,  may,  before  such  deposit  is  made,  order  it  to  be  deposited  in 
covirt  instead  of  with  such  officer;  and  a  deposit  made,  pursuant  to 
such  order,  shall  be  of  the  same  effect  as  if  made  with  such  officer. 
The  perfecting  of  an  appeal  by  giving  the  undertaking  mentioned 
in  this  section  shall  stay  proceedings  in  the  court  below  upon 
the  judgment  appealed  from ;  except  when  the  sale  of  jierishable 
property  is  directed,  the  court  below  may  order  the  proiDerty  to 
be  sold  and  the  proceeds  thereof  to  be  deposited  or  invested,  to 
abide  the  judgment  of  the  appellate  court. 
Code,  s.  554;  C.  C.  P.,  ss.  304,  311. 

599.  Property  deposited  in  court  to  stay  proceedings,  when. 

If  the  judgment  appealed  from  direct  the  assignment  or  dcliverv 
of  documents  or  personal  property,  the  execution  of  the  judgment 
shall  not  be  stayed  by  appeal,  unless  the  things  required  to  be 
assigTied  or  delivered  be  brought  into  court,  or  jilaced  in  the  cus- 
tody of  such  officer  or  receiver  as  the  court  shall  appoint,  or  unless 
an  undertaking  be  entered  into  on  the  part  of  the  appellant,  by  at 
least  two  sureties,  and  in  such  amount  as  the  court  or  a  judge 
thereof  shall  direct,  to  the  effect  that  the  appellant  will  obey  the 
order  of  the  appellate  court  upon  the  appeal. 
Code,  s.  555;  C.  C.  P.,  s.  305. 

600.  Conveyance  executed  to  stay  proceedings,  when.  If  the 

judgiuent  appealed  from  direct  the  execution  of  a  conveyance  or 
other  instrument,  the  execution  of  the  judgment  .shall  not  be  stayed 
by  the  appeal  until  the  instrument  shall  have  been  executed  and 
deposited  with  the  clerk  with  whom  the  judgment  is  entered,  to 
abide  the  judgment  of  the  appellate  court. 
Code,  s.  556;  C.  C.  P.,  s.  306. 

601.  Proceedings  stayed  in  possessory  action  and  foreclos- 
ure, how.  If  the  judgment  appealed  from  direct  the  sale  or  deliv- 
ery of  possession  of  real  property,  the  execution  of  the  same  shall 
not  be  stayed,  unless  a  written  undertaking  be  executed  on  the 
part  of  the  appellant,  with  one  or  more  sureties,  to  the  effect  that, 
during  the  possession  of  such  property  by  the  appellant,  he  will 
not  commit,  or  suffer  to  be  committed,  any  waste  thereon,  and  that 


601  CIVIL  PEOCEDURE— XXF7.  Appeal.  Ch.  12 

if  the  judgment  be  affirmed  he  will  pay  the  value  of  the  use  and 
occuijation  of  the  property,  from  the  time  of  the  appeal  until  the 
delivery  of  possession  thereof,  pursuant  to  the  judgment,  not  ex- 
ceeding a  sum  to  be  fixed  by  a  judge  of  the  court  by  which  judg- 
ment was  rendered,  and  which  shall  be  specified  in  the  undertaking. 
When  the  judg-ment  is  for  the  sale  of  mortgaged  j^remises,  and  the 
payment  of  a  deficiency  arising  upon  the  sale,  the  undertaking  shall 
also  provide  for  the  payment  of  such  deficiency. 
Code,  s.  557;  C.  C.  P.,  s.  307. 

602.  Extent  of  stay;  security  limited  for  fiduciaries.   \Yhen- 

ever  an  appeal  is  perfected  as  provided  by  this  chapter  it  stays  all 
further  proceedings  in  the  court  below  upon  the  judgment  appealed 
from,  or  ujDon  the  matter  embraced  therein ;  but  the  court  below 
may  proceed  upon  any  other  matter  included  in  the  action  and  not 
affected  by  the  judginent  appealed  from.  And  the  court  below 
may,  in  its  discretion,  dispense  M-ith  or  limit  the  security  required, 
when  the  appellant  is  an  executor,  administrator,  trustee,  or  other 
person  acting  in  another's  right;  and  may  also  limit  such  security 
to  an  amoimt  not  more  than  fifty  thousand  dollars,  where  it  would 
otherwise  exceed  that  sum. 
Code,  s.  558;  C.  C.  P.,  s.  308. 

603.  Undertal<ing   in  one  instrument  or  several;  served   on 

appellee.  The  undertakings  may  be  in  one  instrument  or  several, 
at  the  option  of  the  appellant;  and  a  copy,  including  the  names 
and  residences  of  the  sureties,  must  be  served  on  the  adverse  party, 
with  the  notice  of  appeal,  unless  the  required  deposit  is  made,  and 
notice  thereof  given. 

Code,  s.  559;   C.  C.  P.,  s.  309. 

604.  Judgment  not  vacated  by  stay  of  proceedings.  The  stay 

of  proceedings  provided  for  in  this  chapter  shall  not  be  construed 
to  vacate  the  judgment  appealed  from,  but  in  all  cases  said  judg- 
ment shall  remain  in  full  force  and  effect,  and  the  lien  of  said 
judgment  shall  remain  unimpaired  notwithstanding  the  giving  of 
the  undertaking  or  making  the  deposit  required  in  this  chapter 
until  the  judgment  appealed  from  is  reversed  or  modified  by  the 
supreme  court. 
1887,  e.  192. 

605.  Judgment  on  appeal   and  on  undertakings;  restitution. 

Upon  an  appeal  from  a  judgment  or  order,  the  appellate  court 
may  reverse,  affirm  or  modify  the  judgment  or  order  appealed 
from,  in  the  respect  mentioned  in  the  notice  of  appeal,  and  as 
to  any  or  all  of  the  parties,  and  may,  if  necessary  or  projier,  order 


605  CIVIL  PKOCEDUEE— XXT7.  Appfal.  Ch.  12 

a  new  trial.  When  the  judginent  is  reversed  or  modified,  the  ap- 
pellate court  may  make  complete  restitution  of  all  property  and 
rights  lost  by  the  erroneous  judginent.  Undertakings  for  the  prose- 
cution of  appeals  and  on  writs  of  certiorari  shall  make  a  part  of  the 
record  sent  up  to  the  supreme  court  on  which  judginent  may  be 
entered  against  the  apiDellant  or  person  prosecuting  the  writ  of  cer- 
tiorari and  his  sureties,  in  all  cases  where  judgment  shnll  be  rendered 
against  the  appellant  or  person  prosecuting  said  writ. 

Code,  s.  563;  C.  C.  P.,  s.  314;  R.  C,  c.  4,  s.  10;  1785,  c.  233,  s.  2;  1810,  c.  793; 
1831,  c.  46,  s.  2. 

Note.  See  s.  1542  et  seq. 

606.  Plaintiff's  cost  bond  on  appeal  from  justice.    ^Vhen  any 

defendant  shall  appeal  from  the  judgment  of  a  justice  of  the  peace 
to  the  superior  court,  or  when  the  judgment  of  such  justice  shall 
be  removed  by  the  defendant,  by  recordari  or  otherwise,  to  a  siiperior 
court,  the  court  having  cognizance  of  such  appeal  or  recordari  may, 
upon  sufficient  cause  shown  by  affidavit,  compel  the  plaintiff  to  give 
an  undertaking,  with  sufficient  surety,  for  payment  of  the  costs  of 
the  suit,  in  the  event  of  his  failing  to  prosecute  the  same  with  effect. 
Code,  s.  564;  R.  C,  c.  31,  s.  104;  1831,  c.  29. 

607.  Appeal  from  justice  heard  de  novo;  judgment  by  default, 

when;  appeal  dismissed.  When  an  appeal  shall  be  taken  from  the 
judgment  of  a  justice  of  the  peace  to  a  superior  court,  the  same  shall 
be  reheard  by  the  court;  whereupon  an  issue  shall  be  made  up  and 
tried  by  a  jury  at  the  first  term  to  which  it  is  returned,  unless  con- 
tinued ;  and  judgment  shall  be  given  therein  against  the  party  cast 
and  his  sureties.  And  when  the  defendant  shall  make  default,  the 
plaintiff  in  actions  instituted  on  a  single  bond,  a  covenant  for  the 
payment  of  money,  bill  of  exchange,  promissory  note,  or  a  signed 
account,  shall  have  judgment,  and  in  other  cases  may  have  his 
inquiry  of  damages  executed  forthwith  by  a  jury:  Provided,  that 
if  the  appellant  shall  fail  to  have  his  appeal  docketed  as  required 
by  law,  the  appellee  may,  at  the  term  of  said  coiirt  next  succeeding 
the  term  to  which  the  appeal  is  taken,  have  the  case  placed  \ipon  the 
docket,  and  upon  motion  the  judgment  of  the  justice  shall  be  affirmed 
and  judgment  rendered  against  the  appellant  accordingly,  and  for 
the  costs  of  appeal  and  against  his  sureties  upon  the  undertaking, 
if  there  be  any,  according  to  the  conditions  thereof:  Provided  fur- 
ther, that  nothing  herein  shall  be  construed  to  prevent  the  granting 
the  writ  of  recordari  in  cases  now  allowed  by  law. 

Code.  s.  505;  1880,  c.  443;  R.  C,  c.  31,  s.  105;  1777,  c.  11.5.  R.  G3 :  1704.  c.  414. 

608.  Clerk  to  docket  appeal  from  justice  for  trial  de  novo. 

When  the  return  is  made  the  clerk  of  the  appellate  court  sliall  docket 


608  CIVIL  PROCEDURE— XX r/.  Appeal.  Ch.  12 

the  case  on  his  trial  docket  for  a  new  trial  of  the  whole  matter  at  the 
ensiling  term  of  said  court. 

Code,  s.   880;   C.   C.   P.,  s.  5.30;    1876-7,  c.   2.51,   s.   S. 

609.  Appeal  from  justice  heard  on  original  papers.  The  appeal 

shall,  in  all  cases,  be  heard  on  the  original  papers,  and  no  copy 
thereof  need  be  furnished  for  the  use  of  the  appellate  court. 

Code,  s.  881;  C.  C.  P.,  s.  540. 

610.  Appeal  from  the  clerk.  Any  party  may  appeal  from  any 
decision  of  the  clerk  of  the  superior  court  on  an  issue  of  law  or  legal 
inference  to  the  judge  without  undertaking. 

Code,  s.  252;  C.  C.  P.,  s.   100. 

611.  When  taken;  who  may  take.    An  appeal  must  be  taken 

within  ten  days  after  the  entry  of  the  order  or  judgment  of  the  court ; 
but  an  appeal  can  only  be  taken  by  a  party  aggrieved,  who  appeared 
and  moved  for  or  opposed  the  order  or  judgment  appealed  from,  or 
who  being  entitled  to  be  heard  thereon,  had  no  notice  or  opportunity 
to  be  heard ;  which  fact  may  be  shown  by  affidavit  or  other  proof. 

Code,  s.  2.53 ;  C.  C.  P.,  s.  492. 

612.  Duty  of  clerk  on  appeal  prayed.  On  such  appeal  the  clerk, 

within  three  days  thereafter,  shall  prepare  a  statement  of  the  case,  of 
liis  decision  and  of  the  appeal  and  shall  sign  the  same;  he  shall, 
within  the  time  aforesaid,  exhibit  such  statement  to  the  parties  or 
their  attorneys  on  request ;  if  such  statement  is  satisfactory,  the  par- 
ties or  their  attorneys  shall  sign  the  same ;  if  either  party  object  to 
the  statement  as  partial  or  erroneous,  he  may  put  his  objections  in 
writing,  and  the  clerk  shall  attach  such  writing  to  his  statement,  and 
within  two  days  thereafter  he  shall  send  such  statement,  together 
with  the  objections,  and  copies  of  all  necessary  papers,  by  mail  or 
otherwi.se,  to  the  judge  residing  in  the  district,  or  in  his  absence  to 
the  judge  holding  the  courts  of  the  district,  fox  his  decision. 
Code,  s.  254;  C.  C.  P.,  s.  110. 

613.  Duty  of  judge  on  appeal.  It  shall  be  the  duty  of  the  judge 
on  receiving  a  statement  of  appeal  from  the  clerk,  or  the  copy  of 
the  record  of  an  issue  of  law,  to  decide  the  questions  presented 
within  ten  days.  But  if  he  shall  have  been  informed  in  writing, 
by  the  attorney  of  either  party,  that  he  desires  to  be  heard  on  the 
questions,  the  judge  shall  fix  a  time  and  place  for  such  hearing,  and 
give  the  attorneys  of  both  parties  reasonable  notice  thereof.  He 
shall  transmit  his  decision  in  writing,  endorsed  on,  or  attached  to, 
the  record  to  the  clerk  of  the  court,  who  shall  immediately  acknowl- 
edge the  receipt  thereof,  and  within  three  days  after  such  receipt, 

Rov.  Vol.1— 7  101 


613  CIVIL  PROCEDURE— XXT'/.  Apijeal  Ch.  12 

• 

notify  the  attorneys  of  the  parties  of  the  decision  and  on  request  and 
the  payment  of  his  leyal  fees,  give  them  a  copy  thereof,  and  the 
parties  receiving  such  notice  may  proceed  thereafter  according  to 
law. 

Code,  s.  255;  C.  C.  P.,  s.  113. 

614.  Judge   determines   entire   controversy;    may   recommit. 

Whenever  any  civil  action  or  special  proceeding  hegini  before  the  clerk 
of  any  superior  court  shall  be  for  any  gTound  whatever  sent  to  the 
superior  court  before  the  judge,  the  judge  shall  have  jurisdiction: 
and  it  shall  be  his  duty,  upon  the  request  of  either  party,  to  proceed 
to  hear  and  determine  all  matters  in  controversy,  in  such  action,  unless 
it  shall  ai^pear  to  him  that  justice  would  be  more  cheaply  and  speedily 
administered  by  sending  the  action  back  to  be  pi'oceeded  in  before  the 
clerk,  in  which  case  he  may  do  so. 
1887,  c.  276. 

XXVII.      Execution. 

615.  Judgment  enforced  by.  \^^iere  a  judgment  requires  the 
pa_\anent  of  money  or  the  delivery  of  real  or  jjersonal  property  the 
same  may  be  enforced  in  those  respects  by  execution,  as  provided  in 
this  subchapter.  Where  it  requires  the  performance  of  any  other  act  a 
certified  coj^y  of  the  judgment  may  be  served  upon  the  party  against 
whom  it  is  given,  or  upon  the  person  or  officer,  who  is  required  tliereby 
or  by  law  to  obey  the  same,  and  his  obedience  thereto  enforced.  If 
he  refuse,  he  may  be  punished  by  the  court  as  for  contempt. 

Code,   s.  441;   C.   0.  P.,  s.   257. 

616.  Kinds  of;  signed  by  clerk;  sealed,  when.   There  shall  be 

three  kinds  of  execution :  one  against  the  ]iroperty  of  tlie  judgment 
debtor,  another  against  his  person,  and  the  third  for  the  delivery 
of  the  possession  of  real  or  personal  property,  or  such  delivery  with 
damages  for  M'ithholding  the  same.  They  shall  be  deemed  the  pro- 
cess of  the  court,  and  shall  be  subscribed  by  the  cleric,  and  when 
to  run  out  of  his  county,  must  be  sealed  with  the  seal  of  his  co\irt. 
Code,  s.  442;  C.  C.  P.,  s.  258. 

617.  Against  married  woman.  xVn  execution  may  issue  against 
a  married  woman,  and  it  shall  direct  the  levy  and  collection  of  the 
amount  of  the  judgment  against  her  fi'om  her  separate  property, 
and  not  otherwise. 

Code,  s.  443;  C.  C.  P.,  s.  259. 

618.  Clerk  to  issue,  in  six  weeks;  alias;  penalty.  Tlic  clerks  of 

the  superior  court  shall  issue  executions  on  all  judgments  rendered 


618  CIVIL  PROCEDURE— ZXI7/.  Execution.  Ch.   12 

in  their  respective  courts,  unless  otherwise  directed  by  the  plaintiff 
therein,  within  six  weeks  of  the  rendition  of  the  judgment,  and 
shall  endorse  upon  the  record  the  date  of  such  issue;  and  if  the 
executions  issued  are  not.  returned  satisfied  to  the  courts  to  which 
they  are  made  returnable,  the  clerks  shall  issue  alias  executions, 
within  six  weeks  thereafter,  unless  otherwise  instructed  as  afore- 
said. And  every  clerk  who  shall  fail  to  comply  with  the  require- 
ments of  this  section  shall  be  liable  to  be  amerced  in  the  sum  of 
one  hundred  dollars  for  the  benefit  of  the  party  aggrieved,  under 
the  same  rules  that  are  provided  by  law  for  amercing  sheriffs,  and 
shall  be  further  liable  to  the  party  injured  by  suit  upon  his  bond. 
Code,  s.  470;  R.  C,  c.  45,  s.  29;   1850,  e.  17,  ss.  1,  2,  3. 

619.  Within  three  years  as  of  course.    The  party  in  whose 

fa^'or  judgment  has  been  heretofore  or  shall  hereafter  be  given,  and 
in  case  of  his  death,  his  jjersonal  representatives  duly  appointed, 
may  at  any  time  within  three  years  after  the  entry  of  judgment 
proceed  to  enforce  the  same,  hj  execution,  as  provided  in  this 
subchapter. 

Code,  s.  437;  C.  C.  P.,  s.  255. 

620.  After  three  years,  by  leave  obtained  after  notice.     After 

the  lapse  of  three  years  from  the  entry  of  judgment  on  the  judg- 
ment docket,  an  execution  can  be  issued  only  by  leave  of  the  court, 
upon  motion,  with  personal  notice  to  the  adverse  party,  iinless  he 
be  absent  or  nonresident,  or  can  not  be  found  to  make  such  service, 
in  which  case  such  service  may  be  made  by  publication,  or  in  such 
other  manner  as  the  court  shall  direct.  Such  leave  shall  not  be 
given  unless  it  be  established  by  the  oath  of  the  party,  or  by  other 
satisfactory  proof,  that  the  judgment,  or  some  part  thereof,  remains 
unsatisfied  and  due.  But  the  leave  shall  not  be  necessary  when 
execution  has  been  issued  on  the  judgment  Avithin  the  three  years 
next  preceding  the  suing  for  execution,  and  return  thereof  unsatis- 
fied in  whole  or  in  part. 

Code,  s.  440;   C.  C.  P.,  s.  25G. 

621.  Stay  of,  pending  appeal.  Whenever  an  appeal  from  any 
judgment  shall  be  pending,  and  the  undertaking  requisite  to  stay 
execution  on  such  judgment  shall  have  been  given,  and  the  appeal 
perfected,  the  court  in  which  such  judgment  was.  recovered  may,  on 
special  motion,  after  notice  to  the  person  owning  the  judgment, 
on  such  terms  as  they  shall  see  fit,  direct  an  entry  to  be  made  by 
the  clerk  on  the  docket  of  such  judginent,  that  the  same  is  seciired 
on  appeal,  and  no  execution  shall  issue  wpon  such  judgment  during 
the  pendency  of  the  appeal. 

Code,   s.   435;    1887,   c.    192;    C.   C.   P.,   s.   254. 


622  CIVIL  PROCEDURE— XA'T/Z.  Execution.  Ch.   12 

622.  To  what  counties  issued;  land  sold  where;  title  passed. 

When  the  execution  is  against  the  jiJrojjerty  of  the  judgment  debtor 
it  may  be  issued  to  the  sheriff  of  any  county  where  the  judgment 
is  docketed.  No  execution  shall  issue  from  the  superior  court  upon 
any  judgment  until  such  judgment  shall  be  docketed  in  the  county  to 
which  the  execution  shall  be  issued.  When  it  requires  the  delivery  of 
real  or  personal  property  it  must  be  issued  to  the  sheriff  of  the  county 
where  the  proi^erty,  or  some  part  thereof,  is  situated.  Executions 
may  be  issued  at  the  same  time  to  different  counties.  Real  property 
adjudged  to  be  sold  must  be  sold  in  the  county  where  it  lies,  by  the 
sheriff"  of  the  county  or  by  a  referee  appointed  by  the  court  for 
that  purpose ;  and  thereupon  the  sheriff  or  referee  m\ist  execute 
a  conveyance  to  the  purchaser,  which  conveyance  shall  be  effectual 
to  pass  the  rights  and  interests  of  the  parties  adjudged  to  be  sold. 
Code,  s.  443;  C.  C.  P.,  s.  259;  1871-2,  c.  74;  1881,  c.  75;  1905,  c.  412. 

623.  Issued  from  and  returned  to  court  of  rendition.  Execu- 
tions and  other  process  for  the  enforcement  of  judgments,  shall 
issue  only  from  the  court  in  which  the  judgment  for  the  enforce- 
ment of  such  execution,  other  final  process,  or  any  of  them  may 
issue,  was  rendered ;  and  the  returns  of  executions  or  other  final 
process  shall  be  made  to  the  court  of  the  county  from  which  the 
same  issued. 

Code,  s.  444;   1871-2,  c.  74;   1881,  c.  75. 

624.  When  tested;  to  what  term  returnable.  Executions  shall 

be  tested  as  of  the  term  next  before  the  day  on  which  they  were 
issued,  and  shall  be  returnable  to  the  next  term  of  the  court  begin- 
ning not  less  than  forty  days  after  the  issuing  thereof,  and  no  exe- 
cution against  property  shall  issue  until  the  end  of  the  term  during 
which  the  judgment  was  rendered. 

Code,  s.  449;   1903,  c.  544;    1870-1,  c.  42,  s.  7;   1873-4,  c.  7. 

625.  Against  the  person,  when.  If  the  action  be  one  in  which 
the  defendant  might  have  been  arrested,  an  execution  against  the 
person  of  the  judgment  debtor  may  be  issued  to  any  county  within 
the  state,  after  the  return  of  an  execution  against  his  property  irasat- 
isfied  in  whole  or  in  part.  But  no  execution  shall  issue  against  the 
person  of  a  jiidgiuent  debtor,  unless  an  order  of  arrest  has  been 
served,  as  provided  in  the  subchapter  Arrest  and  Bail,  or  unless  the 
complaint  contains  a  statement  of  facts  showing  one  or  more  of  the 
causes  of  arrest  reqTiired  by  law,  \vhether  such  statement  of  facts 
be  necessary  to  the  cause  of  action  or  not. 

Code,  s.  447;   1891,  c.  541.  s.  2;  C.  C.  P.,  s.  2G0. 
Note.     See  s.  727. 


626  CIVIL  PROCEDUEE— ZZF//.  Execution.  Ch.   12 

626.  Defendant  dying   in   execution;   new  execution   against 

property.  Parties,  at  whose  suit  the  body  of  any  person  shall  be 
taken  in  execution  for  any  judgment  recovered,  their  executors  or 
administrators  may,  after  the  death  of  the  person  so  taken  and  dying 
in  execution,  have  new  execution  against  the  property  of  the  person 
deceased,  as  they  might  have  had  if  such  person  had  never  been  in 
execution. 

Code,  s.  469;  R.  C,  c.  45,  s.  28;  21  James  I.,  s.  24. 

627.  Form  of  execution.  The  execution  must  be  directed  to  the 
sheriff,  or  coroner  when  the  sheriff'  is  a  party  or  interested,  sub- 
scribed by  the  clerk  of  the  court,  and  must  intelligibly  refer  to  the 
judgment,  stating  the  county  where  the  judgment  roll  or  transcript 
is  filed,  the  names  of  the  parties,  the  amount  of  the  judgment,  if  it 
be  for  money,  and  the  amount  actually  due  thereon,  and  the  time 
of  docketing  in  the  county  to  which  the  execution  is  issued,  and 
shall  require  the  ofiicer  substantially  as  follows : 

Against  property — no  lien  on  personal  property  until  levy.  If  it 
be  against  the  property  of  the  judgment  debtor,  it  shall  require  the 
ofiicer  to  satisfy  the  judgment  out  of  the  personal  property  of  such 
debtor;  and  if  sufiicient  personal  property  can  not  be  found,  out  of 
the  real  property  belonging  to  him  on  the  day  when  the  judgment 
was  docketed  in  the  county,  or  at  any  time  thereafter ;  but  no  execu- 
tion against  the  property  of  a  judgment  debtor  shall  be  a  lien  on 
the  personal  property  of  such  debtor,  as  against  any  bona  fide  pur- 
chaser from  him  for  value,  or  as  against  any  other  execution,  except 
from  the  levy  thereof. 

Against  property  in  hands  of  personal  representative.  If  it  be 
against  real  or  personal  property  in  the  hands  of  personal  represen- 
tatives, heirs,  devisees,  legatees,  tenants  of  real  property  or  trustees 
it  shall  require  the  officer  to  satisfy  the  judgment  out  of  such 
property. 

Against  the  person.  If  it  be  against  the  person  of  the  judgment 
debtor,  it  shall  require  the  officer  to  arrest  such  debtor,  and  commit 
him  to  the  jail  of  the  county  until  he  shall  pay  the  judgment  or  be 
discharged  according  to  law. 

For  delivery  of  specifi.c  property.  If  it  be  for  the  delivery  of 
the  possession  of  real  or  personal  property,  it  shall  require  the  offi- 
cer to  deliver  the  possession  of  the  same,  particularly  describing  it, 
to  the  party  entitled  thereto,  and  may  at  the  same  time  require  the 
officer  to  satisfy  any  costs,  damages,  rents,  or  profits  recovered  by 
the  same  judginent,  out  of  the  personal  property  of  the  party  against 
whom  it  was  rendered,  and  the  value  of  the  property  for  which  the 
judgment  was  recovered,  to  be  specified  therein,  if  a  delivery  thereof 
can  not  be  had ;  and  if  sufficient  p.ersonal  property  can  not  be  found. 


627  CIVIL  PEOCEDURE— A'A'F/Z.  Execution.  Ch.   12 

then  out  of  tlie  real  property  belonging  to  him  on  the  day  when 
the  judg-ment  was  docketed,  or  at  any  time  thereafter,  and  shall 
in  that  respect  be  deemed  an  execiition  against  property. 

For  purchase  tnoney  of  land.  If  the  answer  in  an  action  for  the 
recovery  of  a  debt  contracted  for  the  purchase  of  land  does  not  deny 
that  the  debt  was  so  contracted,  or  if  the  jury  should  find  that  the 
debt  was  so  contracted,  it  should  be  the  duty  of  the  court  to  have 
embodied  in  the  judgment  that  the  debt  sued  on  was  one  contracted 
for  the  purchase  money  of  said  land,  describing  it  briefly ;  and  it 
shall  also  be  the  duty  of  the  clerk  to  set  forth  in  the  execution  that 
the  said  debt  was  one  ccmtractcd  for  the  purchase  of  said  land,  the 
description  of  Avhich  shall  be  set  out  briefly  as  in  the  complaint. 

Code,  ss.  234,  235,  230,  448 ;  C.  C.  P..  s.  2G1 ;  1868-9,  c.  148 ;  1879.  c.  217. 

628.  Variance  between  judgment  and.    Whenever  property 

may  have  been  sold  by  an  ofiicer  by  virtue  of  any  execution  or  other 
process  commanding  the  sale  thereof,  no  variance  between  the  exe- 
cution and  the  judgment  whereon  the  same  was  issued,  in  the  sum 
due  in  the  manner  in  which  it  is  due  or  in  the  time  when  it  is  due, 
shall  invalidate  or  afl^ect  the  title  of  the  purchaser  of  such  property. 
Code,  s.   1347;  R.  C,  c.  44,  s.   13;    1848,  c.  53. 

629.  What  may  be  sold  under.  The  property,  estate  and  effects 
of  the  judgment  debtor,  not  exempted  from  sale  under  the  consti- 
tution and  laws  of  this  state,  may  be  levied  on  and  sold  under  exe- 
cution as  hereinafter  prescribed: 

1.  The  goods,  chattels,  liouses,  lands,  tenements  and  other  here- 
ditaments, and  real  estate  belonging  to  him. 

2.  All  leasehold  estates  of  three  years  duration  or  more,  owned 
by  him. 

3.  The  equity  of  redemption,  and  legal  right  of  redemption,  in 
lands,  tenemients,  rents  or  other  hereditaments,  pledged  or  mort- 
gaged by  him. 

4.  Any  lands,  tenements,  rents  and  hereditaments  or  any  goods 
and  chattels  of  which  any  person  shall  be  seized  or  jiossessed  in 
trust  for  him. 

Code.  s.  4.50;  E.  C,  c.  45,  ss.  1-5;  5  Geo.  II.,  c.  7.  9.  4;  1777,  o.  115.  s.  29;  1812, 
c.  830,  ss.  1.  2;  1822,  c.  1172. 

Note.     For  .statute  forbidding  sale  of  tenant's  crop  under  execution,  see  s.  1998. 
For  execution  against  liusband's  interest  in  wife's  land,  see  s.  2097. 

630.  Sale  of  trust  estates;  purchasers  title.   Upon  tlio  sale 

under  execution  of  the  estates  mentioned  in  subdivision  four  of 
the  preceding  section  the  sheriff  shall  execute  a  deed  to  the  pur- 
chaser,  and   the   purcha.ser  thereo;^  shall   hold   and  enjoy   the   same 


630  CIVIL  PEOCEDUEE— ZZy/J.  Execution.  Ch.  12 

freed  and  discharged  from  all  encumbrances  of  the  person  so  seized 
or  possessed  in  trust  as  aforesaid. 

Code,  g.  452;   R.  C,  c.  45,  s.  4;   1812,  e.  830. 

631.  Sheriff's  deed  on  sale  of  equity  of  redemption.  The  sheriff 

selling  the  equity  of  redemption  and  legal  right  of  redemption,  as 
set  forth  in  section  six  hundred  and  twenty-nine,  subdivision  three, 
shall  set  forth  in  tlie  deed  to  the  purchaser  thereof  that  the  said 
estates  were  under  mortgage  at  the  time  of  judgTiient,  or  levy  in  the 
case  of  personal  property  and  sale. 

Code,  s.  451;  R.  C,  c.  45,  s.  5;   1812,  e.  830,  s.  2;   1822,  c.  1172. 

632.  Growing  crops  exempted  from.   No  execution  shall  be  levied 
on  growing  crops  until  the  same  are  matured. 

Code,  s.  453;  R.  C,  o.  45,  s.  11;  1844,  e.  35. 

633.  Forthcoming  bond  for  personal  property.   If  any  sheriff 

or  other  officer  who  may  have  levied  an  execution  or  other  process 
upon  personal  property,  shall  permit  the  same  to  remain  with  the 
possessor,  such  officer  may  take  a  bond  for  the  forthcoming  thereof 
to  answer  the  said  execxition  or  process,  which  bond  shall  be  attested 
by  a  credible  witness ;  but  the  officer  shall  nevertheless,  in  all  respects, 
remain  liable  as  heretofore  to  the  plaintiff's  claim. 

Code,  s.  463;   R.  C,  c.  45,  s.  21;    1807,  c.  731,  s.   3;    1828,  c.   12,  s.  2. 

634.  Surety  furnished  list  of  property;  possession  his;  sale  in 

thirty  days.  When  such  bond  shall  be  taken  the  officer  shall  specify 
therein  the  property  levied  upon,  and  shall  furnish  to  the  surety  a 
list  of  the  property  in  writing  under  his  hand,  attested  by  at  least  one 
credible  witness,  and  stating  therein  the  day  of  sale ;  and  the  property 
so  levied  upon  shall  be  deemed  in  the  custody  of  the  surety,  as  the 
bailee  of  the  officer ;  and  all  other  executions  thereafter  levied  on  said 
pro])erty  shall  create  a  lien  on  the  same  from  and  after  the  respective 
levies,  and  shall  be  satisfied  accordingly  out  of  the  proceeds  of  the 
sale  of  said  property;  but  the  officer  thereafter  levying  shall  not  take 
the  property  out  of  the  custody  of  the  surety:  Provided,  that  in  all 
such  cases,  sales  of  chattels  shall  take  place  within  thirty  days  after 
the  first  levy;  and,  if  sale  shall  not  be  made  within  the  time  afore- 
said, any  other  officer  who  may  have  levied  upon  the  property  may 
seize  and  sell  the  same. 

Code,  s.  404;  R.  C,  c.  45,  s.  22;   1844,  c.  34;   1846,  c.  50. 

635.  Summary  remedy  on  forthcoming  bond.  If  the  condition  of 

such  bond  be  broken,  the  sheriff'  or  other  officer,  on  giving  ten  days' 
previous  notice,  in  writing,  to  any  obligor  therein,  may,  on  motion, 
have  judgment  against  him  in  a  summary  manner,  before  the  superior 


635  CIVIL  PROCEDUEE— A'A'17/.  Execution.  Ch.   12 

court,  or  before  a  justice  of  the  peace  as  the  case  may  be,  of  the  county 
in  wliich  such  officer  may  reside,  for  all  such  damages  as  said  officer 
may  iiave  sustained,  or  be  adjudged  liable  to  sustain,  not  exceeding 
the  penalty  of  the  bond,  to  be  ascertained  by  a  jury,  under  the  direc- 
tion of  the  court  or  justice. 

Code,   s.  465;   li.   C,  c.  45,   s.   23;    1822,  c.    1141. 

636.  Returns  of,  entered  on  judgment  docket;  penalty  for  clerk's 

failure.  When  any  execution  shall  be  returned,  the  return  of  the 
sheriff  or  other  officer  shall  be  noted  by  the  clerk  on  the  judgment 
docket;  and  when  the  same  shall  be  returned  satisfied,  or  partially 
satisfied,  it  shall  be  the  duty  of  the  clerk  of  the  court  to  which  the 
same  is  returned  to  send  a  copy  of  such  last  mentioned  return,  under 
his  hand,  to  the  clerk  of  the  superior  court  of  each  county  in  which 
such  judgment  is  docketed,  whose  duty  it  shall  be  to  note  such  copy 
in  his  judgment  docket,  ojiiposite  said  judgment,  and  to  file  said  copy 
with  the  transcript  of  the  docket  of  said  judgment  in  his  office.  Any 
clerk  failing  to  send  a  copy  of  the  payments  on  said  execution  or  judg- 
ment to  the  clerks  of  the  superior  court  of  the  counties  wherein  a 
transcrij^t  of  the  judgment  has  been  docketed,  and  any  clerk  failing 
to  note  said  payment  on  the  judgment  docket  of  his  court,  shall,  on 
motion,  be  fined  one  hundred  dollars  nisi  for  said  failure,  and  said 
conditional  judgment  shall  be  made  absolute  upon  notice  to  show  cause 
at  the  succeeding  term  of  the  superior  court  of  his  county. 
Code,  s.  445;    1871-2,  c.   74,  s.  2;    1881,  c.   75. 

637.  Cost  of  keeping  fiorses,  etc.  The  court  or  justice  shall 
make  a  reasonable  allowance  to  officers  for  keeping  and  maintaining 
horses,  cattle,  hogs,  or  sheep,  and  all  other  property,  the  keeping 
of  which  may  be  chargeable  to  them,  taken  into  their  custody  under 
legal  process;  and  such  allowance  may  be  retained  by  the  officers 
out  of  the  sales  of  the  property,  in  preference  to  the  satisfaction 
of  the  process  under  which  the  property  was  seized  or  sold. 

Code,  s.  466;  R.  C,  c.  45,  s.  25;  1807,  c.  731. 

638.  Verified  account  of  expenses  of  keeping  filed.   Kvery  such 

officer  shall  make  out  his  account  and  if  required  shall  gi\e  the  debtor 
or  his  agent  a  copy  thereof,  signed  by  his  own  hand,  and  shall  return 
the  account  with  the  execution  or  other  process,  under  which  the  prop- 
erty has  been  seized  or  sold,  to  the  justice  or  the  court  to  whom  the 
execution  or  process  is  returnable,  and  shall  swear  to  the  correctness 
of  the  several  items  therein  set  forth ;  otherwise  he  shall  not  be  per- 
mitted to  retain  the  same. 

Code,  s.  467;  R.  C,  c.  45,  s.  26;   1807,  c.  731,  s.  2. 


639  CIVIL  PKOCEDUEE— A'XT7/.  Execution.  Ch.  12 

639.  Purchaser  of  defective  title;  remedy  against  defendant. 

Where  property,  real  or  jjersonal,  shall  be  sold  on  any  executiou  or 
decree,  by  any  officer  authorized  to  make  the  sale,  and  the  sale  is 
legally  and  in  good  faith  made,  and  such  proj^erty  be  not  the  property 
of  the  person  against  whose  estate  such  execution  or  decree  may  have 
issued,  by  reason  of  which  the  purchaser  may  have  been  deprived  of 
the  same  property,  or  may  have  been  compelled  to  pay  damages  in 
lieu  thereof  to  the  owner;  in  every  siich  case  the  purchaser,  his  exec- 
utors or  administrators,  may  sue  the  person  against  whom  such 
execution  or  decree  may  have  issued,  or  the  person  legally  represent- 
ing him,  in  a  civil  action,  and  recover  such  sum  as  he  may  have  paid 
for  the  projjerty,  with  interest  from  the  time  of  payment:  Provided, 
that  such  property,  if  the  same  is  personal  property,  be  present  at  the 
sale,  and  actually  delivered  to  the  purchaser. 
Code,  s.  468;  R.  C,  c.  45,  s.  27;  1807,  c.  723. 

640.  Costs  on  execution  paid  to  clerk;  penalty.  The  sheriff  or 

other  officer  shall  pay  the  costs  on  all  executions  which  shall  be  satis- 
fied in  Avhole  or  in  part,  to  the  clerk  of  the  court  from  which  the 
execution  issued,  and  to  no  other  person,  on  the  second  day  of  the 
term  of  the  court;  and  any  such  officer  making  default  herein  shall 
forfeit  and  pay  forty  dollars  for  the  benefit  of  the  party  aggrieved, 
under  the  same  rules  that  are  provided  by  law  for  amercing  sheriffs. 
Code,  s.  472;   R.  S.,  c.  76,  s.  5;    1822,  c.   1149. 


Note.     For  e.xecution  where  corporations,  stoek,  etc..  are  affected,  see  ss.  1212- 
1218. 

XXVIII.     Execution   S.\les. 

641.  How  advertised;  cost  of  newspaper  publication.  Xo  real 

property  shall  be  sold  imder  execution,  deed  in  trust,  mortgage,  or 
other  contract  hereafter  executed,  until  notice  of  said  sale  shall 
be  posted  at  the  courthouse  door  and  three  other  public  places  in 
the  county  for  thirty  days  immediately  preceding  such  sale,  and 
also  published  for  four  weeks  in  some  newspaper  published  in  the 
county,  if  a  paper  is  published  in  the  coimty :  Provided,  the  cost  of 
such  newspaper  publication  shall  not  exceed  three  dollars,  to  be  taxed 
as  cost  in  the  action,  special  proceeding  or  proceeding  to  sell. 

Code,  s.  456;  1885,  c.  38;   1905.  c.  147;   18G8-9,  c.  237,  s.  10;  R.  C,  c.  45,  s.  16; 
1881,  c.  278. 
Note.     See  also,  s.  1042. 

642.  Notice  of,  served  on  defendant;  on  governor,  when.   In 

addition  to  the  advertisement  above  required,  the  sheriff'  .shall  in  every 
case,  at  least  ten  days  before  a  sale  of  real  jjroperty  under  execution, 
serve  a  copy  of  so  much  of  the  advertisement  as  relates  to  the  real 


(342     ClYIL  FHOCEBVUE— XXVIII.  Execidiou  Sales.     Ch.   12 

property  of  any  defendant  on  him  personally,  if  he  be  found  in  the 
county,  or  on  his  agent,  if  he  have  a  known  agent  therein,  or  if  he 
can  not  be  found  within  the  county,  and  has  no  kncwu  agent  therein, 
but  his  address  be  known,  by  mail  to  such  address;  and  the  date  of 
service  shall  be  ascertained  by  the  usual  coTirse  of  the  mail  from  the 
place  where  sent  to  the  place  of  its  address :  Provided,  that  in  case 
of  the  sale  under  execution,  or  under  the  order  of  any  court,  of  any 
property,  real  or  personal,  in  which  the  state  shall  be  interested  as  a 
stockholder  or  otherwise,  notice  in  writing  shall  be  served  upon  the 
governor  and  attorney  general,  at  least  thirty  days  before  the  sale,  of 
the  said  time  and  place  of  sale,  and  under  what  process  the  sale  is 
made,  otherwise  said  sale  shall  be  invalid. 
Code,  s.  457:  1S6S-9,  c.  237,  s.  11;  1876-7,  e.  •224. 

643.  Sale  days  under,  or  by  order  of  court.  All  real  property 

sold  luider  execution,  or  by  order  of  cnurt,  sluill  lie  sold  at  the  court- 
house door  of  the  county  in  which  the  property  or  some  part  thereof 
is  situate,  on  the  first  ilonday  in  any  month,  or  during  the  first 
three  days  of  any  term  of  the  superior  court  of  said  county,  unless 
in  the  order  directing  the  sale  some  other  place  and  time  is  desig- 
nated ;  and  then  it  shall  be  sold  as  directed  in  such  order,  on  any  day 
except  Sunday  or  holidays,  after  advertising  the  same  as  required 
by  law. 

Code,  s.  454;   1876-7,  c.  216,  ss.  2,  3;   1883,  c.  94,  ss.  1,  2. 

644.  Sales  between  ten  and  four  o'clock.  Xo  sale  under  an  exe- 
cution or  decree  shall  commence  before  ten  o'clock  in  the  morning, 
or  continue  after  four  o'clock  in  the  evening,  of  the  day  on  which 
the  sale  is  to  be  made,  except  that  in  towns  or  cities  of  more  than  five 
thousand  inhabitants  public  sales  of  goods,  wares  and  merchandise 
may  be  continued  until  the  hour  of  ten  o'clock  p.  m. 

Code,   s.   459;    R.  C,  c.   45,   s.    17;    1794,   e.   41. 

645.  Postponed  from  day  to  day.  The  sherifi'  or  other  person 
making  the  sale,  for  the  absence  of  bidders  or  any  other  just  cause, 
may  postpone  the  same  from  day  to  day,  but  not  for  more  than  six 
days  in  all,  and  upon  such  postponement  he  shall  post  a  notice  thereof 
on  the  courthouse  door  of  his  county. 

Code,  s.   455;    1868-9,  c.   237,   s.  9. 

646.  Postponed  more  than  six  days  validated.    All  sales  of 

realty  made  under  executions  issued  ]u-i(ir  to  March  the  fifteenth, 
one  tliousand  nine  hundred  and  nue,  on  judgments  regularly  olitained 
in  courts  of  competent  jurisdiction,  arc  liereby  validated,  whether 
such  sales  were  continued  from  day  to  day  or  for  a  longer  period,  not 
exceeding  ten  days:  Provided,  that  such  executions  and  sales  are  in 

170 


646     CIVIL  PROCEDUEE— XXF777.  Execution  Sales.     Ch.   12 

all  other  respects  regular:  Provided  further,  that  purchasers   and 
their  assigns  shall  have  held  continuous  and  adverse  possession  under 
a  sheriff's  deed  for  three  years :  Provided  further,  that  the  rights  of 
minors  and  married  women  shall  in  nowise  be  prejudiced  hereby. 
1901,  e.  742. 

647.  Private  acts  regulating  land  sales  repealed.  All  private 

acts,  by  which  lands  in  particular  counties  are  required  or  allowed  to 
be  sold  at  places,  or  at  times,  other  than  thnse  hereinafter  prescribed, 
are  hereby  repealed. 

Code,  s.  458;  1868-9.  c.  237,  s.  12. 

648.  Advertisement  of  sale  of  personal  property.   No  sale  of 

personal  jirojDerty  under  execution  shall  be  made  until  the  same  has 
been  advertised  for  ten  days  at  the  door  of  the  courthouse  of  the 
county  in  which  the  same  is  to  be  sold,  and  at  three  other  public 
places  in  said  county,  and  the  advertisement  shall  designate  the  place 
and  the  time  of  said  sale. 

Code,  s.  460;   R.  C,  c.  45,  s.   16:  -1808,  c.   753;    1820,  c.   1006. 

649.  Penalty  for  selling  contrary  to  law.  Any  sheriff  or  other 

officer,  who  shall  make  any  sale  contrary  to  the  true  intent  and 
meaning  of  this  subchapter,  shall  forfeit  and  pay  two  hundred  dol- 
lars to  any  person  suing  for  the  same,  one-half  for  his  o^vn  use  and 
the  other  half  to  the  use  of  the  county  where  the  offense  is  com- 
mitted. 

Code,  s.  461;  E.  C,  c.  45,  s.  18;  1820,  c.  1066,  s.  2;  1822,  c.  1153,  s.  3. 

650.  No  sale  for  want  of  bidders;  officer's  return;  penalty. 

Whenever  a  sheriff  or  other  officer  shall  return  upon  any  exeeuti(ju 
that  he  has  made  no  sale  for  want  of  bidders,  he  shall  state  in  his 
return  the  several  places  at  which  he  has  advertised  the  sale  of  the 
property  levied  on,  and  the  places  at  which  he  hath  offered  the  same 
for  sale ;  and  any  officer  failing  to  make  such  specification,  shall  on 
motion  be  subject  to  a  fine  of  forty  dollars;  and  every  constable,  for 
a  like  omission  of  duty,  shall  be  subject  to  a  fine  of  ten  dollars,  for 
the  use  and  benefit  of  the  plaintiff  in  the  execution;  for  which,  on 
motion  of  the  plaintiff,  judginent  shall  be  granted  by  the  court  to 
which  the  execution  shall  be  returned ;  or,  in  the  case  of  a  justice's 
execution,  by  any  justice  to  whom  the  execution  shall  be  returned : 
Provided,  that  nothing  in  this  section,  nor  any  recovery  under  the 
same,  shall  be  a  bar  to  any  action  for  a  false  return  against  the 
sheriff  or  other  officer. 

Code,  s.  462;   R.  C,  c.  45,  s.   19:    1815,  c.  887. 


651     CIVIL  PEOOEDURE— ZZT'//Z.  Execution  Sales.     Ch.  12 

651.  Officer  to  prepare  deeds  for  property  sold.    Sheriffs  or 

other  officers  selling  lands  by  authorilv  of  any  execution  (ir  ])rocess, 
shall,  upon  isayment  of  the  price,  prei^are,  execute  and  deliver  to 
the  purchaser  a  deed  for  the  property  purchased:  Provided,  that  the 
purchaser  of  land  shall  fviruish  the  officer  with  a  description  of  the 
land. 

Code,  s.  471;  R.  C,  c.  45,  s.  30;   1848,  c.  39. 

XXIX.     Betteements. 

652.  Petition  by  claimant;  execution  suspended;  issues  found. 

Any  defendant  against  whom  a  judgment  shall  be  rendei'ed  for  land, 
may,  at  any  time  before  the  execution  of  such  judgment,  present  a 
petition  to  the  court  rendering  the  same,  stating  that  he,  or  those 
under  whom  he  claims,  while  holding  the  premises  vinder  a  color 
of  title  believed  by  him  or  them  to  be  good,  have  made  permanent 
improvements  thereon,  and  praying  that  he-  may  be  allowed  for  the 
same,  over  and  above  the  value  of  the  use  and  occupation  of  such 
land ;  and  thereupon  the  court  may,  if  satisfied  of  the  probable  truth 
of  the  allegation,  suspend  the  execution  of  such  judgment  and 
impanel  a  jury  to  assess  the  damages  of  the  plaintiff  and  the  allow- 
ance to  the  defendant  for  such  improvements:  Provided,  that  in  any 
such  action,  such  inquiry  and  assessment  may  be  made  iipon  the 
trial  of  the  cause. 

Code,  s.  473;    1871-2,  c.   147. 

653.  Annual  value  of  land  and  waste  charged  against  defend- 
ant. The  jury,  in  assessing  such  damages,  shall  estimate  against  the 
defendant  the  clear  annual  value  of  the  premises  during  the  time 
he  was  in  possession  thereof,  exclusive  of  the  use  by  the  tenant  of 
the  improvements  thereon  made  by  himself  or  those  under  whom  he 
claims,  and  also  the  damages  for  waste,  or  other  injury,  to  the  prem- 
ises committed  by  the  defendant. 

Code,  8.  474;   1871-2,  c.  147,  s.  2. 

654.  Damages  and  rental  value  limited  to  three  years,  when. 

The  defendant   shall   not  be   liable  for   such   annual   vahic   for  any 
longer  time  than  three  years  before  the  suit,  or  for  damages  for  any 
such  waste  or  other  injury  done  befoi'e  said  three  years,  unless  when 
he  claims  for  improvements  as  aforesaid. 
Code,  s.  475;   1871-2,  e.   147,  s.  3. 

655.  Value  of  improvements  estimated.    If  the  jury  shall  be 

satisfied  that  the  defendant,  or  those  under  whom  he  claims,  made 
on  the  premises,  at  a  time  when  there  was  reason  to  believe  the  title 


655  CIVIL  PEOCEDUEE— A'X/X.  Betterments.  Ch.  12 

good  under  which  he  or  they  were  holding  the  said  premises,  per- 
manent and  valuable  improvements,  they  shall  estimate  in  his  favor, 
the  value  of  such  improvements  as  were  so  made  before  notice,  in 
writing,  of  the  title  under  which  the  plaintiff  claims,  not  exceeding 
the  amount  actually  expended  in  making  them  and  not  exceeding 
the  amount  to  which  the  value  of  the  premises  is  actually  increased 
thereby  at  the  time  of  the  assessment. 
Code,  s.  476;   1871-2,  c.  147,  s.  4. 

656.  Improvements  to  balance  rents.  If  the  sum  estimated  for 

the  improvements  exceed  the  damages  estimated  by  the  jury  against 
the  defendant  as  aforesaid,  they  shall  then  estimate  against  him 
for  any  time  before  the  said  three  years,  the  rents  and  profits  accriied 
against,  or  damages  for  waste  or  other  injury  done  by  him,  or  those 
under  whom  he  claims,  so  far  as  may  be  necessary  to  balance  his 
claim  for  improvements ;  but  in  such  case  he  shall  not  be  liable  for 
the  excess,  if  any,  of  such  rents,  profits,  or  damages  beyond  the 
value  of  improvements.  -  ■ 

Code,  s.  477;   1871-2,  c.  147,  s.  5. 

657.  Verdict  and  judgment  to  be  for  difference.  After  offset- 
ting the  damages  assessed  for  the  plaintiff,  and  the  allowances  to 
the  defendant  for  the  improvements,  if  any,  the  jury  shall  find  a 
verdict  for  the  balance  for  the  plaintiff  or  defendant,  as  the  case 
may  be,  and  judgment  shall  be  entered  therefor  according  to  the 
verdict. 

Code,  s.  478;    1871-2,  c.   147,  s.  6. 

658.  Balance  due  defendant  a  lien.  Any  such  balance  due  to  the 

defendant  shall  constitute  a  lien  upon  the  land  recovered  by  the 
plaintiff  until  the  same  shall  be  paid. 
Code,  s.  479;   1871-2,  c.  147,  s.  7. 

659.  Recovery  by  plaintiff  from  remainderman,  betterments 

paid.  If  the  plaintiff  claim  only  an  estate  for  life  in  the  land  recov- 
ered and  pay  any  sum  allowed  to  the  defendant  for  improvements, 
he  or  his  personal  representative  may  recover  at  the  determination 
of  his  estate  from  the  remainderman  or  reversioner,  the  value  of  the 
said  improvements  as  they  then  exist,  not  exceeding  the  amovmt  as 
paid  by  him,  and  shall  have  a  lien  therefor  on  the  premises  in  like 
manner  as  if  they  had  been  mortgaged  for  the  payment  thereof, 
and  may  keep  possession  of  said  premises  imtil  it  be  paid. 
Code,  s.  480;   1871-2,  c.  147,  s.  8. 

660.  Not  applicable  to  suit  by  mortgagee.  Nothing  herein  shall 

extend  or  apply  to  any  suit  brought  by  a  mortgagee  or  his  heirs 


660  CIVIL  PKOCEDURE— XX/A'.  Bettennenis.  Ch.   1l' 

or  assigns  against  a  mortgagor  or  his  heirs  or  assigns  for  the  rceov- 
cry  of  the  mortgaged  premises. 

Code,  s.  481;   1871-2,  c.  147,  s.  9. 

661.  Value  of  premises  without  improvements,  when.    When 

the  defendant  shall  claim  allowance  for  improvements,  the  plaintiflf 
may  by  entry  on  the  record  require  that  the  value  of  his  estate  in 
the  premises  without  the  improvements  shall  also  be  ascertained. 
Code,  s.  482;   1871-2,  c.  147.  s.   10. 

662.  How  estimated.  The  value  of  the  premises  in  such  cases 
shall  be  estimated  as  it  would  have  been  at  the  time  of  the  inquiry, 
if  no  such  imiDrovements  had  been  made  on  the  premises  by  the 
tenant  or  any  jserson  under  whom  he  claims,  and  shall  be  ascer- 
tained in  the  manner  hereinbefore  provided  for  estimating  the  value 
of  improvements. 

Code,  s.  483;    1871-2,  c.   147,  s.   11. 

663.  Plaintiff's  election  that  defendant  take  premises.    The 

plaintiff  in  such  case,  if  judginent  is  rendered  for  him,  may,  at  any 
time  during  the  same  term,  or  before  judgment  is  rendered  on  the 
assessment  of  the  value  of  the  improvements,  in  person  or  by  his 
attorney  in  the  cause,  enter  on  the  record  his  election  to  relinquish 
his  estate  in  the  premises  to  the  defendant  at  the  value  as  ascer- 
tained, and  the  defendant  shall  thenceforth  hold  all  the  estate  that 
the  plaintiff  had  therein  at  the  commencement  of  the  suit:  Provided, 
he  pay  therefor  the  said  value  Avith  interest  in  the  manner  in  which 
the  court  may  order  it  to  be  paid. 
Code,  s.  484;   1871-2,  c.  147,  s.   12. 

664.  Payment  made  to  court;  land  sold  on  default.  The  pay- 
ments shall  be  made  to  the  plaintiff,  or  into  court  for  his  use,  and 
the  land  shall  be  bound  therefor,  and  if  the  defendant  fail  to  make 
the  said  payments  within  or  at  the  times  limited  therefor  respect- 
ively, the  court  may  order  the  land  to  be  sold  and  the  proceeds 
applied  to  the  payment  of  said  value  and  interest,  and  the  surplus, 
if  any,  to  be  paid  to  the  defendant ;  but  if  the  said  net  proceeds 
be  insuiflcient  to  satisfy  the  said  value  and  interest,  the  defendant 
shall  not  he  bound  for  the  deficiency. 

Code,  s.  485;   1871-2,  c.  147,  s.  13. 

665.  If  plaintiff  is  feme  covert,  minor  or  insane.  Tf  the  party 

by  or  for  wlnnn   tlic  land   is  clniiiicil   in   the  suit  lie  a  feme  covert, 
minor,  or  insane,  such  value  shall  be  deemed  to  be  real  estate,  and 
be  disposed  of  as  the  court  may  consider  proper  for  the  benefit  of 
the  persons  interested  therein. 
Code,  s.  480;   1871-2,  c.  147,  s.  14. 

174 


6U6         CIVIL  PROCEDURE— XA'/X.  Betterments.  Ch.   12 

666.  Defendant  evicted,  recovery  of  plaintiff.  If  the  defend- 
ant, his  heirs,  or  assigns  shall,  after  the  premises  are  so  relinquished 
to  him,  be  evicted  thereof  by  force  of  any  better  title  than  that  of 
the  original  plaintiff,  the  person  so  evicted  may  recover  from  such 
plaintiff  or  his  representatives  the  amount  so  paid  for  the  prem- 
ises, as  so  much  money  had  and  received  by  such  plaintiff  in  his 
life-time  for  the  use  of  such  persons,  with  lawful  interest  thereon 
from  the  time  of  such  payment. 

Code,  s.  487;   1871-2,  c.  147,  s.  15. 

XXX.     Supplemental   Proceedings. 

667.  Execution  returned  unsatisfied,  order  witfiin  three  years 

for  debtor  to  answer.  When  an  execution  against  property  of  the 
judgment  debtor,  or  any  one  of  several  debtors  in  the  same  judg- 
ment, issued  to  the  sheriff  of  the  county  where  he  resides  or  has  a 
place  of  business,  or  if  he  do  not  reside  in  the  state,  to  the  sheriff' 
of  the  county  where  a  judgment  roll  or  a  transcript  of  a  justice's 
judgment  is  filed,  is  returned  unsatisfied,  in  whole  or  in  part,  the 
judgment  creditor  at  any  time  after  such  return  made,  and  within 
three  years  from  the  time  of  issuing  the  execution,  is  entitled  to  an 
order  from  the  court  to  which  the  execution  is  returned,  or  from  the 
judge  thereof,  requiring  such  debtor  to  appear  and  answer  con- 
cerning his  property,  before  such  court  or  judge,  at  a  time  and 
place  specified  in  the  order,  within  the  county  to  which  the  execu- 
tion was  issued. 

Code,  s.  48S,   subsec.   1 ;   C.  C.  P.,  s.   264;    1868-0,  c.   95,  s.   2. 

668.  Execution  not  returned,  order  on  affidavit;  proceedings. 

After  the  issuing  of  an  execution  against  property,  and  upon  proof 
by  affidavit,  of  a  party,  his  agent  or  attorney,  to  the  satisfaction 
of  the  court,  or  a  judge  thereof,  that  any  judgment  debtor  residing 
in  the  judicial  district  where  such  judge  or  oflicer  resides  has 
property  which  he  unjustly  refuses  to  apply  toward  the  satisfac- 
tion of  the  judgment,  such  court  or  judge  may,  by  an  order,  require 
the  judgment  debtor  to  appear  at  a  specified  time  and  place,  to 
answer  concerning  the  same ;  and  such  pi'oceedings  may  thereupon 
he  had  for  the  application  of  the  property  of  the  judgment  debtor 
towards  the  satisfaction  of  the  judgmen.t  as  arc  provided  upon  the 
return  of  an  execution  and  the  judgment  creditor  shall  be  entitled 
to  the  order  of  examination  under  this  and  under  the  preceding 
section,  although  the  judgment  debtor  may  have  an  equitable  estate 
in  land  subject  to  the  lien  of  the  judgment,  or  may  have  choses 
in  action,  or  other  things  of  value  unaffected  by  the  lien  of  the 
judgment,  and  incapable  of  levy. 

Code,  s.  488,  subsee.  2;  C.  C.  P.,  s.  264;   1868-9,  e.  9.5,  s.  2. 


669      CIVIL  PROCEDUEE— XXZ.  Sup.  Proceedings.      Ch.   12 

669.  Proceedings  against  joint  debtors.  Proceedings  supple- 
mental to  execution  may  be  taken  npon  the  return  of  an  execution 
unsatisfied,  issued  upon  a  judgment  recovered  in  an  action  against 
joint  debtors,  in  which  some  of  the  defendants  have  not  been  served 
■with  the  summons  bj'  which  said  action  was  commenced,  so  far  as 
relates  to  the  joint  property  of  such  debtors;  and  all  actions  by 
creditors  to  obtain  satisfaction  of  judgments  out  of  the  property 
of  joint  debtors  are  maintainable  in  the  like  manner  and  to  the 
like  effect.  These  provisions  shall  apply  to  all  proceedings  and 
actions  pending  and  to  those  terminated  by  final  decree  or  judg- 
ment. 

Code,  s.  490;  C.  C.  P..  s.  266;   1869-70,  c.  79,  s,  2;   1870-1,  c.  245. 

670.  Either  party  may  examine  witnesses.  On  such  examina- 
tion either  party  may  examine  witnesses  in  his  behalf,  and  the 
judgment  debtor  may  be  examined  in  the  same  manner  as  a  wit- 
ness ;  and  witnesses  may  be  required  to  appear  and  testify  on  any 
proceedings  under  this  chapter  in  the  same  manner  as  upon  the 
trial  of  an  issue. 

Code,  ss.  488   (subsec.  3),  491;  C.  C.  P.,  ss.  264.  207;   1868-9,  c.  95,  s.  2. 

671.  Debtor  leaving  state,  or  concealing  tiimself.  arrested; 

held  to  bond.  Instead  of  the  order  requiring  the  attendance  of  the 
judgment  debtor,  the  court  or  judge  may,  iipon  proof  by  affidavit 
or  otherwise,  to  his  satisfaction,  that  there  is  danger  of  the  debtor 
leaving  the  state,  or  concealing  himself,  and  that  there  is  reason 
to  believe  that  he  has  property  which  he  unjustly  refuses  to  apply 
to  such  judgment,  issue  a  warrant  requiring  the  sheriff  of  any 
county  where  such  debtor  may  be,  to  arrest  him  and  bring  him 
before  such  court  or  judge.  Upon  being  brought  before  the  court 
or  judge,  he  may  be  examined  on  oath,  and,  if  it  then  a]ipears  that 
there  is  danger  of  the  debtor  leaving  the  state,  and  that  he  has 
jiroperty  which  he  has  unjustly  refused  to  apply  to  such  judg- 
ment, he  shall  be  ordered  to  enter  into  an  undertaking,  with  one 
or  more  sureties,  that  he  will,  from  time  to  time,  attend  before  the 
court  or  judge  as  he  shall  direct,  and  that  he  will  not,  during  the 
pendency  of  the  proceedings,  dispose  of  any  property  not  exempt 
from  execution.  In  default  of  entering  into  such  undertaking,  he 
may  be  committed  to  prison  by  warrant  of  the  cotirt  or  judge,  as 
for  contempt. 

Code,  s.  488,  subsec.  4;   1868-9,  c.   148,  s.  4;   1868-9,  c.  277,  s.  8. 

672.  incriminating  answers,  no  privilege;  not  used  in  criminal 

prosecutions.  Xn  ])ci-s(in  sliall,  nu  oxaminatiou  pursuant  to  this 
chapter,  be  excused  from  answering  any  question  on  the  ground  that 


672      CIVIL  PEOCEDURE— XX.Y.  Sup.  Proceedings.      Cli.   12 

his  examination  will  tend  to  convict  him  of  the  commission  of  a 
crime;  bnt  his  answer  shall  not  be  used  as  evidence  against  him 
in  any  criminal  proceedings  or  prosecution.  Nor  shall  he  be  excused 
from  answering  any  question  on  the  ground  that  he  has,  before 
the  examination,  executed  any  conveyance,  assignment  or  transfer 
of  his  property  for  any  purpose,  biit  his  answer  shall  not  be  used 
as  evidence  against  him  in  any  criminal  proceeding  or  prosecution. 
Code,  s.  488,  subsec.  5;  C.  C.  P.,  s.  2fi4;   1868-9,  c.  95,  s.  2. 

673.  Disposition  of  property  forbidden.  The  court  or  judge  may, 

by  order,  forbid  a  transfer  ur  other  disposition  of  the  property  of 
the  judgment  debtor  not  exempt  from  execution,  or  any  interfer- 
ence therewith. 

Code,  ss.  488    (subsec.  C),  494;  C.  C.  P..  s.  264;   1808-9,  c.  95,  s.  -2. 

674.  Debtors  of  judgment  debtor  may  pay  off  execution.  After 

the  issuing  of  execution  against  property,  all  persons  indebted  to 
the  judgment  debtor,  or  to  any  one  of  several  debtors  in  the  same 
judgment,  may  pay  to  the  sheriif  the  amount  of  their  debt,  or  so 
much  thereof  as  shall  be  necessary  to  satisfy  the  execution;  and  the 
sheriff's  receipt  shall  be  a  sufficient  discharge  for  the  amount  so 
paid. 

Code,  s.  489;  C.  C.  P.,  s.  265. 

675.  Debtors,  and  persons  having  property,  of  judgment  debtor, 

summoned.  After  the  issuing  or  return  of  an  execution  against 
property  of  the  judgment  debtor,  or  of  any  one  of  several  debtors  in 
the  same  judgment,  and  upon  affidavit  that  any  person  or  corpora- 
tion has  property  of  said  judgment  debtor,  or  is  indebted  to  ..him 
in  an  amount  exceeding  ten  dollars,  the  court  or  judge  may,  by 
an  order,  require  such  person  or  corporation,  or  any  officer  or  mem- 
bers thereof,  to  appear  at  a  specified  time  and  place,  and  answer 
concerning  the  same.  The  court  or  judge  may  also,  in  its  or  his 
discretion,  require  notice  of  such  proceeding  to  be  given  to  any  party 
to  the  action,  in  such  manner  as  may  seem  to  him  or  it  proper. 

Code,   s.   490;    C.   C.   P.,   s.   266;    1809-70,   e.   79.   s.   2;    1870-1,   c.   245. 

676.  Party  or  witness  examined  under  oath;  certified;  answer 

by  corporation.  The  party  or  witness  may  be  required  to  attend 
bef<ire  the  court  or  judge,  or  before  a  referee  appointed  by  the 
court  or  judge;  if  before  a  referee,  tlie  examination  shall  be  taken 
by  the  referee,  and  certified  to  the  court  or  judge.  All  examina- 
tions and  answers  before  a  court  or  judge  or  referee,  under  this 
chapter,  shall  be  on  oath,  except  that  when  a  corporation  answers, 
the  answer  shall  be  on  the  oath  of  an  officer  thereof. 
Code,  s.  492;  C.  C.  P.,  s.  268;  1871-2,  c.  245. 

Rev.  Vol.  1—8  177 


677      CIVIL  PROCEDrKE— A'A'A'.  Sup.  Proceedings.      Ch.   li' 

677.  Where  proceedings  instituted  and  defendant  examined. 

Proceedings   siipjilemental    to   execution   must   be    instituted    in    the 
county  in  which  the  judgment  was  rendered;  but  tlie  ]jhiee  desig- 
nated where  the  defendant  shall  appear  and  answer  must  be  within 
the  county  where  saicli  defendant  resides. 
Hasty  V.  Simpson,  77  N.  C,  69. 

678.  Debtor's  property  ordered  sold;  exceptions.  The  court  or 

judge  may  order  any  pi-operty,  whether  subject  or  not  to  be  sold 
under  execution  (except  the  homestead  and  personal  property 
exemptions  of  the  judgment  debtor),  in  the  hands  either  of  himself 
or  of  any  other  person,  or  due  to  the  judgment  debtor,  to  be  applied 
towards  the  satisfaction  of  the  judgment ;  except  that  the  earnings 
of  the  debtor  for  his  personal  services,  at  any  time  within  sixt}* 
days  next  preceding  the  order,  can  not  be  so  applied  when  it  is 
made  to  appear,  by  the  debtor's  affidavit  or  otherwise,  that  such 
earnings  are  necessary  for  the  use  of  a  family  supported  wholly 
or  in  part  by  his  labor. 

Code,   s.  493;   C.   C.   P.,  s.   269;    1870-1,  c.   245. 

679.  Receiver  appointed;  creditors  notified.  The  court  or  judge 

having  jurisdiction  over  the  appointment  of  receivers  may  also  by 
order  in  like  manner,  and  with  like  authority,  appoint  a  receiver 
in  proceedings  under  this  chapter,  of  the  property  of  the  judg- 
ment debtor,  whetlier  subject  or  not  to  be  sold  under  execution, 
except  the  homestead  and  personal  property  exemptions.  But  before 
the  appointment  of  such  receiver,  the  court  or  judge  shall  ascertain 
if  practicable,  by  the  oath  of  the  party  or  otherwise,  whether  any 
other  supplementary  proceedings  are  pending  against  the  judgment 
debtor,  and  if  such  proceedings  are  so  pending,  the  jilaintiff  therein 
shall  have  notice  to  appear  before  him,  and  shall  likewise  have 
notice  of  all  subsequent  pi'oceedings  in  relation  to  said  receivership. 
No  more  than  one  receiver  of  the  property  of  a  judgment  debtor 
shall  be  appointed.  The  title  of  the  receiver  shall  relate  back  to 
the  service  of  the  restraining  order,  hereinbefore  and  hereinafter 
]Drovided  for. 

Code,  s.  494;  C.  C.  P.,  s.  270;  1870-1,  c.  245;  1876-7,  c.  223;  1879.  c.  03; 
1881,   c.   51. 

Note.     For  statutes  rej.'ulatiiifr  receivers,  see  ss.  846-849.  1219-1232. 

680.  Order  of  appointment  filed  and  recorded;  property  vests 
when;  receiver  under  control  of  court,   wiuiuvcr  ih.-  court  nr  a 

judge  shall  grant  an  order  for  the  appointment  of  a  receiver  of  tlie 
property  of  the  judgment  debtor,  tlic  same  shall  be  filed  in  the  office 
of  the  clerk  of  the  superior  court  of  the  county  whore  tlio  judgment 


680      CIVIL  PROCEDURE— XA'X.  Sup.  Proceedings.      Cli.   12 

roll  in  the  action  or  transcript  from  justice's  judgment,  upon  which 
the  proceedings  are  taken,  is  filed;  and  the  clerk  shall  record  the 
order  in  a  book  to  be  kept  for  that  purpose  in  his  office,  to  be  called 
"book  of  orders,  appointing  receivers  of  judgment  debtors,"  and 
shall  note  the  time  of  the  filing  of  said  order  therein.  A  certified 
cojay  of  said  order  shall  be  delivered  to  the  receiver  named  therein, 
and  he  shall  be  vested  with  the  property  and  effects  of  the  judgment 
debtor  from  the  time  of  the  service  of  the  restraining  order,  if  such 
restraining  order  shall  have  been  made,  and  if  not,  from  the  time  of 
the  filing  and  recording  of  the  order  for  the  appointment  of  a 
receiver.  The  receiver  of  the  judgment  debtor  shall  be  subject  to 
the  direction  and  control  of  the  coiirt  in  which  the  judgment  was 
obtained  ujjon  which  the  proceedings  are  founded. 
Code,  s.  495;  C.  C.  P.,  s.  270;   1870-1,  c.  245. 

681.  Order  of  appointfrient  recorded  in  county  in  which  land 

lies  and  debtor  resides.  But  before  the  receiver  shall  be  vested 
with  any  real  property  of  such  judgment  debtor,  a  certified  copy  of 
said  order  shall  also  be  filed  and  recorded  on  the  execution  docket, 
in  the  office  of  the  clerk  of  the  superior  court  of  the  county  in  which 
any  real  estate  of  such  judgment  debtor  sought  to  be  affected  by  such 
order  is  situated,  and  also  in  the  office  of  the  clerk  of  the  superior 
court  of  the  county  in  which  such  judgment  debtor  resides. 
Code,  s.  496;  C.  C.  P.,  s.  270. 

682.  Receiver  to  sue,  debt  denied,  property  claimed  adversely; 

disposition  forbidden.  If  it  ajapear  that  a  person  or  corporation 
alleged  to  have  property  of  the  judgment  debtor,  or  indebted  to  him, 
claims  an  interest  in  the  property  adverse  to  him,  or  denies  the  debt, 
such  interest  or  debt  shall  be  recoverable  only  in  an  action  against 
such  person  or  corporation  by  the  receiver ;  but  the  court  or  judge 
may,  by  order,  forbid  a  transfer  or  other  disposition  of  such  prop- 
erty or  interest,  till  a  sufficient  opportunity  be  given  to  the  receiver 
to  commence  the  action,  and  prosecute  the  same  to  judginent  and 
execution,  but  such  order  may  be  modified  or  dissolved  by  the  court 
or  judge  having  jurisdiction,  at  any  time,  on  such  security  as  he 
shall  direct. 

Code,  s.  497;  C.  C.  P.,  s.  271;   1870-1,  e.  245. 

683.  Reference,  when.  The  court  or  judge  may,  in  his  discre- 
tion, order  a  reference  to  a  referee  agreed  upon  by  the  parties,  or 
appointed  by  him,  to  report  the  evidence  or  the  facts,  and  may,  in 
his  discretion,  appoint  such  referee  in  the  first  order,  or  at  any 
time. 

Code,  s.  498;  C.  C.  P.,  s.  272. 


684      CIVIL  PROCEDUKE— XXX.  Sup.  Proceedings.      Ch.   12 

684.  Disobedience  of  orders,  contempt;  punishment.    If  any 

person,  party  or  witness,  disobey  an  order  of  the  court  or  judge  or 
referee,  duly  served,  such  person,  party  or  witness,  may  be  punished 
by  the  judge  as  for  a  contempt.  And  in  all  cases  of  commitment 
under  this  subchapter,  the  person  committed  may,  in  case  of 
inability  to  perform  the  act  required,  or  to  endure  the  imprisonment, 
be  discharged  from  imprisonment  by  the  judge  committing  him,  or 
the  judge  having  jurisdiction,  on  such  terms  as  may  be  just. 
Code,  s.  500;  C.  C.  P.,  s.  274;  1869-70,  c.  79,  s.  3. 

XXXI.     Pkoperty  Exe.mpt  from  Execution  ;  Allotmext. 

685.  When  debt  contracted  or  cause  of  action  arose.   There 

shall  be  exempt  from  sale  imder  execution  or  other  final  process 
issued  for  the  collection  of  any  debt  upon  all  judgments  heretofore, 
or  which  may  be  hereafter,  rendered,  such  property  as  the  judgment 
debtor  may  have  been  entitled  to  have  set  apart  and  allotted  to  him 
at  the  time  the  debt  was  contracted,  or  cause  of  action  accrued,  as 
follows : 

Upon  debts  contracted  prior  to  February  twenty-fifth,  one  thou- 
sand eight  hundred  and  sixty-seven. 

The  wearing  apparel,  working  tools,  arms  for  muster,  one  wheel 
and  two  pairs  of  cards,  one  loom,  one  Bible  and  Testament,  one  hymn- 
book,  one  prayer-book,  and  all  necessary  school  books,  the  property 
of  the  defendant,  shall  be  exempt  from  seizure  under  execution, 
and  in  addition  to  the  foregoing  articles  there  shall  be,  in  favor 
of  every  housekeeper  complying  Avith  this  chapter,  exempt  from 
execution  on  debts  contracted  since  the  first  day  of  Jiily,  one 
thousand  eight  hundred  and  forty-five,  and  prior  to  February  twenty- 
fifth,  one  thousand  eight  himdred  and  sixty-seven,  the  following 
property,  provided  the  same  shall  have  been  set  apart  before  seizure, 
to-wit:  One  cow  and  calf,  ten  bushels  of  corn  or  wheat,  fifty  pounds 
of  bacon,  beef,  or  pork,  or  one  barrel  of  fish,  all  necessary  farming 
tools  for  one  laborer,  one  bed,  bedstead,  and  covering  for  every  two 
members  of  the  family,  and  such  other  property  as  the  freeholders 
appointed  for  that  purpose  may  deem  necessary  for  the  comfort  and 
support  of  such  debtor's  family;  such  other  property  not  to  exceed 
in  value  the  sum  of  fifty  dollars  at  cash  valuation :  Provided,  that 
this  section  shall  not  be  extended  to  any  ]ierson  against  wlmni  judg- 
ment is  obtained  and  execution  awarded  for  liability  incurred  for 
failure  or  neglect  to  work  on  the  public  roads,  or  to  muster,  or  pay 
his  poll  tax. 


685     CIVIL  PEOCEDURE— ZZX7.  Property  Exempt.     Ch.   12 

Debts  contracted  since  February  twenty-fifth,  one  thousand  eight 
hundred  and  sixty-seven,  and  prior  to  April  twenty-fourth,  one 
thousand  eight  hundred  and  sixty-eight. 

The  wearing  apparel,  working  tools,  arms  for  muster,  one  wheel 
and  two  pairs  of  cards,  one  loom,  one  Bible  and  Testament,  one  hymn- 
book,  one  prayer-book,  and  all  necessary  school  books,  the  property 
of  the  defendant,  shall  be  exempt  from  seizure  under  execution.  And 
the  following  property  of  each  head  of  a  family  or  housekeeper  shall 
be  exempt  from  execution  except  for  taxes:  All  necessary  farming 
and  mechanical  tools,  one  work  horse,  one  yoke  of  oxen,  one  cart 
or  wagon,  one  milch  cow  and  calf,  fifteen  head  of  hogs,  five  hundred 
pounds  of  pork  or  bacon,  fifty  bushels  of  corn,  twenty  bushels  of 
wheat  or  rice,  household  and  kitchen  furniture  not  to  exceed  iii  value 
two  hundred  dollars,  the  libraries  of  licensed  attorneys  at  law,  prac- 
ticing physicians  and  ministers  of  the  gospel,  and  the  instruments 
of  surgeons  and  dentists  used  in  their  professions:  Provided,  that 
the  value  of  the  personal  property  exemjitions  shall  not  exceed  five 
hundred  dollars. 

Upon  debts  contracted  and  causes  of  actions  accrued  since  April  the 
tiventy-fourth,  one  thousand  eight  hundred  and  sixty-eight,  and 
prior  to  May  first,  one  thousand  eight  hundred  and  seventy-seven. 

The  property,  real  and  personal,  as  set  forth  in  article  ten  of  the 
constitution  of  the  state. 

Upon  debts  contracted  or  causes  of  action  accruing  since  May  first, 
one  thousand  eight  hundred  and  seventy-seven. 

The  property,  real  and  personal,  specified  in  the  third  subdivision 
of  this  section,  and  the  homestead  of  any  resident  of  this  state  shall 
not  be  subject  to  sale  under  execution  or  other  process  thereon,  excej.it 
such  as  may  be  rendered  or  issued  to  secure  the  payment  of  obliga- 
tions contracted  for  the  purchase  of  the  said  real  estate,  or  for 
laborers'  or  mechanics'  liens,  for  work  done  and  performed  for  the 
claimant  of  said  homestead,  or  for  lawful  taxes:  Provided,  that  the 
allotment  of  the  homestead  shall,  as  to  all  property  therein  embraced, 
suspend  the  running  of  the  statute  of  limitations  on  all  judgments 
against  the  homesteader  during  the  continuance  of  the  homestead : 
Provided  further,  that  the  owners  of  judgments  docketed  since  March 
eleventh,  one  thousand  eight  hundred  and  eighty-five,  shall  have  two 
years  from  first  day  of  April,  one  thousand  nine  hundred  and  one, 
within  which  to  assign  and  set  apart  the  homesteads  under  such 
judgments,  the  suspension  of  the  statute  of  limitations  shall  be  sus- 


685     CIVIL  PEOCEDUEE— A'A"A7.  Property  Exempt.     Cli.   1l' 

pended  not  only  as  to  the  judgment  \inder  wliich  tlie  homestead  is 
allotted,  but  as  to  all  other  judgments. 

Code,  s.  501;  1885,  c.  359;  1887,  c.  17;  1895.  c.  397;  1901,  c.  612;  1879.  c.  25fi; 
R.  C,  c.  45.  s.  7;  1848,  e.  38;  R.  C,  c.  45.  s.  8;  1844.  c.  32:  1846,  c.  53;  1848, 
c.  38,  s.  2;  1866-7,  c.  61,  s.  7;  1876-7,  c.  253. 

686.  Conveyed  homestead  not  exempt,  when.  The  allotted  home- 
stead shall  he  exempt  from  levy  si:>  lung  a.s  owned  and  occupied  by 
the  homesteader  or  by  any  one  for  him,  but  when  conveyed  by  him  in 
the  mode  authorized  by  the  constitution,  article  ten,  section  eight, 
the  exemption  thereof  ceases  as  to  liens  attaching  prior  to  the  convey- 
ance. The  homestead  right  being  indestructible,  the  homesteader 
who  has  conveyed  his  allotted  homestead  can  have  another  allotted, 
and  as  often  as  may  be  necessary:  Provided,  this  shall  not  have  any 
retroactive  effect. 

1905.  0.  111. 

687.  Sheriff  to  summon  and  swear  appraisers;  surveyor,  when. 

Before  levying  upon  the  real  estate  of  any  resident  of  this  state  who 
is  entitled  to  a  homestead  imder  this  chapter  and  the  constitution 
of  this  state,  article  ten,  the  sheriff  or  other  officer  charged  with 
such  levy,  shall  summon  three  discreet  persons  qualified  to  act  as 
jurors,  to  whom  he  shall  administer  the  following  oath :  "I,  A.  B., 
do  solemnly  swear  (or  affirm)  that  I  have  no  interest,  near  or  remote, 
in  the  homestead  exemption  of  C.  T).,  and  that  I  will  faithfully 
perform  the  duties  of  appraiser  (or  assessor,  as  the  case  may  be), 
in  valuing  and  laying  off  the  same.  So  help  me,  God."  Provided, 
that  in  cases  where  he  shall  deem  it  necessary  he  may  summon  the 
county  surveyor  or  some  other  competent  surveyor  to  assist  in  laying 
off  the  homestead  by  metes  and  bounds. 

Code,  s.  502;   1893,  c.  58;   1868-9,  c.  137,  s.  2. 

Note.     For  allotment  wliere  land  is  held  in  common,  see  s.  2489. 

688.  Duty  of  appraisers.  The  said  appraisers  shall  thereupon 
proceed  to  value  the  homestead  with  its  dwelling  and  buildings 
thereon,  and  lay  off  to  said  owner  such  portion  as  he  may  select,  or 
to  any  agent,  attorney,  or  other  person  in  his  behalf,  not  exceeding 
in  value  one  thousand  dollars,  and  to  fix  and  describe  the  same  by 
metes  and  bounds. 

Code,  s.  503;   1868-9,  c.  137,  s.  3. 

689.  Return  of  appraisers;  filed  and  registered;  copy  to  county 
of  execution;  original  or  copy  evidence.  They  shall  tlien  make  and 

sign  in  the  ]iresence  of  the  officer  a  return  of  their  proceedings,  set-* 
ting  forth  the  property  exempted,  which  shall  be  returned  by  the 
officer  to  the  clerk  of  the  court  for  the  county  in  whicli  the  home- 


089     CIVIL  PROCEDUKE— ZXX/.  Property  Exempt.     Ch.   12 

stead  is  situated  and  filed  with  the  judgment  roll  in  the  action,  and 
a  minute  of  the  same  entered  on  the  judgment  docket,  and  a  certified 
copy  thereof  under  the  hand  of  the  clerk  shall  be  registered  in  the 
oflice  of  the  register  of  deeds  for  the  county,  and  said  officer  shall 
likewise  make  a  transcript  of  said  return  over  his  hand  and  return 
the  same  without  delay  to  the  clerk  of  the  court  of  the  county  from 
whence  the  execution  issued,  and  said  clerk  shall  likewise  file  and 
make  minute  of  the  same  as  above  directed,  and  in  all  judicial  pro- 
ceedings the  original  return  or  a  certified  copy  thereof  may  be  read 
in  evidence. 

Code,  s.  504;   1887,  e.  272;   1868-9,  c.  137,  s.  4. 

690.  Liability  of  officer  or  appraiser  conspiring.   Any  oflicer, 

appraiser,  or  assessor  who  shall  wilfully  or  corruptly  conspire  with 
any  judgment  debtor,  judgment  creditor,  or  other  person,  to  under- 
value, or  to  overvalue,  the  homestead  or  personal  property  exemption 
of  any  debtor,  or  shall  assign  false  metes  and  bounds,  or  shall  make 
or  procure  to  be  made  a  false  and  fraudulent  return  thereof,  shall 
be  answerable  in  a  civil  action  to  the  party  injured  thereby  for  all 
costs  and  damages. 

Code,  ss.  517,  518;   1868-9,  c.  137,  ss.  18,  19. 
Note.     For  criminal  liability,  see  ss.  3584-3586. 

691.  Re-allotment  for  increase  of  value;  appeal;  statute  not 

exclusive.  Any  judgment  creditor  of  a  debtor  whose  homestead  has 
been  allotted  may  apjjly  in  writing  to  the  clerk  of  the  superior  court 
of  the  county  in  which  such  homestead  lies  for  an  order  for  the 
re-allotment  of  said  homestead,  if  there  be  in  the  hands  of  the  sheriff 
of  that  county  an  execution  issued  from  the  proper  court  against 
said  debtor.  Such  application  shall  be  accompanied  by  the  affi- 
davits of  three  disinterested  freeholders  of  the  county  in  which  said 
homestead  lies,  setting  forth  that,  in  their  opinion,  said  homestead 
has  increased  in  value  fifty  per  centum  or  mqre  since  the  last  allot- 
ment thereof.  Upon  the  filing  of  said  application  and  affidavit  the 
clerk  shall  issue  notice  to  the  judgment  debtor  to  appear  before  him 
on  a  day  not  more  than  five  days  from  the  day  of  the  service  of  said 
notice  and  show  cause  why  said  homestead  shall  not  be  re-allotted. 
Said  notice  shall  state  ui^on  whose  application  the  notice  is  issued. 
Upon  the  return  day  of  said  notice  the  said  clerk  shall  consider  the 
affidavit  filed,  as  heretofore  required,  and  such  additional  affidavits 
as  may  be  filed  by  either  party,  and  if,  after  hearing  and  considering 
the  same,  he  is  of  opinion  that  the  said  homestead  has  probably  appre- 
ciated in  value  fifty  per  centum  or  more  since  the  last  allotment, 
he  shall  command  the  sherifi'  to  allot  to  tlie  judgment  debtor  his  home- 
stead in   the   same  niauuer  as   if  no   homestead   had   been   allotted. 


691     CIVIL  PEOCEDURE— A-A'A7.  Property  Exempt.     Ch.   V2 

And  if  upon  such  allotment  any  excess  is  found,  it  shall  be  disposed 
of  by  the  sheriff  as  in  ordinary  cases  of  exec\ition  and  levy.  From 
the  order  of  the  clerk  commanding-  a  re-allotment,  or  I'efusinn-  the 
same,  either  party  may  appeal  to  the  judi^e  holding  the  court  of  the 
district,  or  to  the  judge  of  the  district,  either  of  whom  shall  hear  the 
same  in  chambers  in  any  county  of  the  judicial  district  to  which 
the  county  in  which  the  proceedings  were  instituted  belongs.  And 
in  all  other  respects  the  proceedings  iipon  such  appeal  shall  be  as 
now  provided  by  law  for  appeals  from  the  clerk  on  issues  of  law. 
This  section  shall  not  be  construed  to  prevent  the  judgment  creditor 
from  resorting  to  the  equity  jurisdiction  of  the  courts  for  a  re-allot- 
ment of  the  homestead  of  his  judgment  debtor  in  any  case. 

1893,  e.   149. 

Xote.     For  costs,  see  s.  1268. 

692.  Levy  on  excess;  return  of  officer.  The  levy  may  be  made 
upon  the  excess  of  the  homestead,  not  laid  off  according  to  this  chap- 
ter, and  the  officer  shall  make  substantially  the  following  return  upon 
the  execution :  "A.  B.,  C.  D.,  and  E.  F.,  summoned  and  qualified 
as  appraisers  or  assessors  (as  the  case  may  be)  who  set  off  to  X.  Y. 
the  homestead  exempt  by  law.     Levy  made  upon  the  excess." 

Code,  s.  505;   1868-9,  c.   137,  s.  5. 

693.  When  no  election  by  owner,  appraisers  elect.  In  ease  no 

election  is  made  by  the  owner,  his  agent,  attorney,  or  any  one  acting 
in  his  behalf,  of  the  homestead,  to  be  laid  off  as  exempt,  the  appraisers 
shall  make  such  election  for  him,  including  always  the  dwelling  and 
buildings  used  therewith. 

Code,  s.  506;   1868-9,  c.   137,  s.  6. 

694.  Tracts  not  contiguous  included,  when.  Different  tracts  or 

parcels  of  land  not  contiguous  may  be  included  in  the  same  home- 
stead, when  a  homestead  of  contiguous  land  is  not  of  the  value  of 
one  thousand  dollars. 

Code,  s.  509;   1868-9,  e.  137,  s.  15. 

695.  Personal  property  not  to  exceed  $500  appraised  on  de- 
mand; manner;  return.  Wlunevcr  the  ju'VMinal  pn.in-ily  i>f  any  resi- 
dent of  this  state  shall  be  levied  upon  \>y  virtue  of  any  execution  or 
other  final  process  issued  for  the  collection  of  any  debt,  and  the 
owner  or  any  agent,  or  attorney  in  his  behalf,  shall  demand  that  the 
same,  or  any  part  thereof,  shall  be  exempt  from  sale  under  such  exe- 
cution, the  sheriff  or  other  oflicer  making  sucii  levy  shall  summon 
three  appraisers,  as  heretofore  provided,  wiio,  having  been  first  duly 
sworn,  shall  appraise  and  lay  off  to  the  judgment  debtor  such  articles 
of  personal  property  as  lie  or  aimllici-  in  his  hclialt'  may  select,  and 


695     CIVIL  PROCEDUKE— A'XA7.  Property  Exempt.     Cb.   12 

to  Avhicli  he  may  be  entitled  under  tbis  cbapter  and  the  constitution 
of  the  state,  in  no  case  to  exceed  in  value  five  hundred  dollars,  which 
articles  shall  be  exempt  from  said  levy,  and  return  tbei-eof  shall  be 
made  by  the  appraisers,  as  upon  the  laying  off  of  a  homestead  exemp- 
tion. 

Code,  s.  507;   1868-9,  c.  137,  ss.  12,  13. 

696.  Appraiser's  oath  and  fees.  The  persons  summoned  to 
appraise  the  personal  property  exemption  shall  take  the  same  oath 
and  be  entitled  to  the  same  fees  as  the  appraisers  of  the  homestead, 
and  when  both  exemptions  are  claimed  by  the  judgment  debtor,  at 
the  same  time,  one  board  of  appraisers  shall  lay  off  both  and  be 
entitled  to  but  one  fee. 

Code,  s.  508;  1868-9,  c.  137,  s.  14. 

697.  Appraisers  to  set  apart  selected  property;  return  to  regis- 
ter of  deeds.  Said  assessors  shall  set  apart  of  the  personal  property 
of  said  applicant,  to  be  by  him  selected,  articles  of  personalty  to 
which  he  may  be  entitled  under  this  chapter,  not  exceeding  in  value 
the  sum  of  five  hundred  dollars,  and  make  and  sign  a  descriptive  list 
thereof,  and  return  the  same  to  the  register  of  deeds. 

Code,  s.  512;   1868-9,  c.  137,  s.  8. 

698.  Return  registered.  It  shall  be  the  duty  of  the  register  of 
deeds  to  endorse  on  each  of  said  returns  the  date  when  received  for 
registration,  and  to  cause  the  same  to  be  registered  without  unneces- 
sary delay.  The  said  register  shall  receive  for  registering  the  said 
returns  the  same  fees  that  may  be  allowed  him  by  law  for  other  simi- 
lar or  equivalent  services,  which  fees  shall  be  jiaid  by  said  resident 
applicant,  his  agent  or  attorney,  upon  the  reception  of  said  returns 
by  the  register. 

Code,   s.   513;    1868-9,  c.   137.   s.   9. 

699.  Exceptions  to  valuation  and  allotment;  procedure.  If  the 

judgment  creditor  for  whom  levy  is  made,  or  judgTaent  debtor  or 
other  person  entitled  to  homestead  and  personal  property  exemption, 
shall  be  dissatisfied  with  the  valuation  and  allotment  of  the  apprais- 
ers or  as.sessors  (as  the  case  may  be)  he,  within  ten  days  there- 
after, or  any  other  creditor,  within  six  months,  and  before  sale  imder 
execution  of  the  excess,  may  notify  the  adver.se  party  and  the  sheriff 
having  the  execution  in  hand,  and  file  with  the  clerk  of  the  superior 
court  of  the  county  where  the  said  allotment  shall  be  made  a  tran- 
script of  the  return  of  the  appraisers  or  assessors  (as  the  case  may 
be)  which  they  or  the  sheriff  shall  allow  to  be  made  upon  demand, 
together  with  his  objections  in  writing  to  said  return;  and  there- 
upon the  said  clerk  shall  put  the  same  on  the. civil  issue  docket  of 


699     CIVIL  PEOCEDUEE— XA'A7.  Property  Exempt.     Cli.   li> 

said  superior  court  for  trial  at  the  next  term  thereof  as  other  civil 
actions,  and  such  issue  joined  shall  have  precedence  over  all  other 
issues  at  such  term.  And  the  sheriff  shall  not  sell  the  excess  until 
after  the  determination  of  said  action :  Provided,  that  the  ten  days 
and  six  months  respectively  shall  begin  to  run  from  the  date  of  the 
filing  of  the  return  of  the  valuation  and  allotment  of  the  appraisers 
or  assessors  by  the  officer  with  the  clerk  of  the  superior  court  of  the 
county  from  whence  the  execution  issued. 
Code,  s.  519;  1887,  c.  272,  s.  2;  1883,  c.  357. 

700.  When  increase  demanded;  what  jury  shall  find;  commis- 
sioners appointed  by  court;  report.  When  an  increase  of  the  exemp- 
tion or  an  allotment  in  property  other  than  that  set  apart  shall  be 
demanded,  the  party  demanding  shall  in  his  exceptions  specify  the 
property  from  which  the  increase  or  re-allotment  is  to  be  had.  If 
the  ajDjjraisal  or  assessment  shall  be  reduced,  tlie  jury  shall  assess 
the  value  of  the  property  embraced  therein ;  if  increased,  the  valne 
of  the  property  specified  in  the  objections  from  which  the  increase; 
is  demanded  shall  also  be  assessed ;  but  if  the  allotment  shall  be  made 
in  property  other  than  that  first  set  apart,  the  jury  shall  assess  the 
value  of  the  property  so  allotted.  The  court  shall  appoint  three  dis- 
interested commissioners  to  lay  off  and  set  apart  the  homestead  and 
personal  property  exemption  in  accordance  with  the  verdict  of  the 
jury  and  the  judgment  of  the  court,  and  in  the  manner  prescribed 
by  law.  The  commissioners,  who  shall  be  smnmoned  by  the  sheriff, 
shall  meet  upon  the  premises  and  after  being  sworn  by  the  sheriff 
or  a  justice  of  the  peace  to  faithfully  perform  the  duties  of  apprais- 
ers or  assessors  (as  the  case  may  be)  in  allotting  and  laying  off  the 
homestead  or  personal  property  exemption,  or  both  (as  the  case  may 
be),  in  accordance  with  the  verdict  and  judgment  aforesaid,  allot 
and  lay  oft'  the  same  and  file  their  report  to  the  next  term  of  the 
court,  when  the  same  shall  be  heard  by  the  court  upon  exceptions 
thereto. 

188."),  c.   347. 

701.  Undertaking  of  objector.  The  creditor,  debtor,  or  claim- 
ant objecting  to  the  allotment  made  by  the  ap]iraisers  or  assessors 
(as  the  case  may  be)  under  execution  or  petition,  shall  file  with  the 
clerk  of  the  superior  court  an  undertaking  in  the  sum  of  one  lum- 
dred  dollars  for  the  ])ayment  to  the  adverse  ]iarty  of  sucli  costs  as 
shall  be  adjudged  against  him. 

Code,   s.   522. 

702.  Set  aside  for  fraud,  complicity  or  irregularity.   Any  ap- 

])raisi)l  or  allotment    by  appraisers    or    assessors,  liereinbcfore  pro- 


702     CIVIL  PEOGEDURE— XXX7.  Property  Exempt.     Ch.   12 

vided,  may  be  set  aside  for  fraud,  complicity  or  other  irregularity ; 
but  whenever  any  allotment  or  assessment  shall  be  made  or  eon- 
firmed  by  the  superior  court  at  term  time,  as  hereinbefore  provided, 
the  said  homestead  shall  not  thereafter  be  set  aside  or  again  laid 
off  by  any  other  creditor  except  for  increase  in  value. 
Code,  s.  523. 

703.  Return  registered;  original  or  copy  evidence.   When  the 

homestead  and  personal  property  exemiDtion  shall  be  decided  by  the 
court  at  term  time  the  clerk  of  the  superior  court  shall  immediately 
file  with  the  register  of  deeds  of  the  county  a  copy  of  the  same,  which 
copy  shall  be  registered  as  deeds  are  now  registered  by  law;  and 
in  all  judicial  proceedings  the  original  or  a  certified  copy  of  said 
return  may  be  introduced  in  evidence. 
Code,  s.  524. 

704.  Allotted  upon  petition  of  owner.  Whenever  any  resident 
of  this  state  may  desire  to  take  tbe  benefit  of  the  homestead  ajid 
personal  proj)erty  exemption  as  guaranteed  by  article  ten  of  the  con- 
stitution of  this  state,  or  by  this  chapter,  such  resident,  his  agent 
or  attorney,  shall  apply  to  any  justice  of  the  peace  of  the  county  in 
which  he  resides,  and  said -justice  of  the  peace  shall  appoint  as 
assessors  three  disinterested  persons,  qualified  to  act  as  jurors,  resid- 
ing in  said  county,  who  shall,  on  notice  by  order  of  said  justice, 
meet  at  the  applicant's  residence,  and,  after  taking  the  oath  pre- 
scribed for  appraisers  before  some  officer  authorized  to  administer 
an  oath,  lay  off  and  allot  to  the  applicant  a  homestead  with  metes 
and  bounds,  according  to  the  applicant's  direction,  not  to  exceed  one 
thousand  dollars  in  value,  and  make  and  sigTi  a  descriptive  account 
of  the  same  and  return  it  to  the  office  of  the  register  of  deeds. 

Code,  s.  511;    1868-9,  c.   137,  s.  7. 

705.  Advertisement  of  petition;  time  of  hearing.  When  any  per- 
son entitled  to  a  homestead  and  personal  property  exemption  shall 
file  his  or  her  petition  before  a  justice  of  the  peace  to  have  the  same 
laid  off  and  set  apart  under  the  preceding  sections,  the  said  justice 
shall  make  advertisement  in  some  newspaper  published  in  the  county, 
if  there  be  one,  for  six  successive  weeks,  and  if  there  be  no  newspaper 
in  the  county,  then  at  the  courthouse  door  of  the  county  in  which  the 
petition  is  filed,  notifying  all  creditors  of  said  applicant  of  the  time 
and  place,  when  and  where  the  said  petition  will  be  heard ;  and  the 
same  shall  not  be  heard  nor  any  decree  made  in  the  cause  in  less  than 
six  months  nor  more  than  twelve  months  from  the  day  of  making 
advertisement  as  above  required. 

Code,  s.  515;  1868-9,  c.  137,  s.  11. 


706     CIVIL  PEOCEDUEE— XZZZ.  Property  Exempt.     Ch.   12 

706.  Exceptions,  when  allotted  on  petition.  When  the  homestead 

or  personal  property  exemption  is  made  or  allotted  on  the  petition 
of  the  person  entitled  thereto,  any  creditor  may,  within  six  months 
from  the  time  of  said  assessment  or  appraisal,  and  upon  ten  days' 
notice  to  the  petitioner,  file  his  objections  with  the  register  of  deeds 
of  the  county  in  which  the  premises  are  situated,  and  the  register 
of  deeds  shall  return  the  same  to  the  clerk  of  the  superior  court  of 
said  county,  who  shall  place  the  same  on  the  civil  issue  docket,  and 
the  same  shall  be  tried  as  provided  in  section  six  hundred  and  ninety- 
nine  for  homestead  and  personal  property  exemptions  set  ofl'  under 
execution. 
Code,  s.  520. 

707.  Allotted  after  death  of  homesteader.  If  any  person  enti- 
tled to  a  homestead  exemption  die  without  such  homestead  having 
been  set  apart,  his  widow,  if  he  leave  no  children,  or  his  child  or 
children  under  the  age  of  twenty-one  years,  if  he  leave  such,  may 
pijDceed  to  have  said  homestead  exemption  laid  off  by  petition,  and  if 
such  widow,  child  or  children,  being  entitled  to  a  homestead  exemp- 
tion as  aforesaid,  shall  have  failed  to  have  the  same  .set  apart  in  the 
manner  hereinbefore  "jn-ovided,  then  and  in  such  event,  it  shall  ln' 
the  duty  in  an  action  brought  by  the  personal  representative  of  such 
decedent  to  subject  the  realty  of  his  testator  or  intestate  to  the  pay- 
ment of  debts  and  charges  of  administration,  of  the  court  to  appoint 
three  disinterested  freeholders  to  set  apart  to  such  widow,  child  or 
children  entitled  to  a  homestead  exemption  as  aforesaid  a  homestead 
exemption  under  metes  and  bounds  in  the  lauds  of  such  decedent, 
who  shall  under  their  bauds  and  seals  make  return  of  the  same  to 
the  court,  which  shall  be  registered  in  the  same  manner  as  is  now 
required  by  law  for  the  registration  of  homestead  exemptions. 

Code,  s.  514;    1893,  c.  332;    1868-9,  c.   137,  s.   10. 

708.  Liability  of  officer  failing  to  allot.    Any  officer  making  a 

levy,  who  shall  refuse  or  neglect  to  summon  and  qualify  appraisers 
as  heretofore  provided,  or  who  shall  fail  to  make  due  return  of  his 
proceedings,  or  who  shall  levy  upon  the  homestead  set  off  by  said 
appraisers  or  assessors  (as  the  case  may  be),  except  as  herein  jn-o- 
vided,  he  and  his  sureties  shall  be  liable  to  the  owner  of  said  home- 
stead for  all  costs  and  damages  in  a  civil  action. 

Code,  s.  516;    1868-9,  c.  3  37,  s.  17. 

Note.     For  additional  penalty  making  misdemeanor,  see  s.  3584. 

709.  Forms.  The  following  forms  shall  be  substantially  followed 
in  proceedings  under  this  subchapter: 


188 


709     CIVIL  PEGGED UEE—XZX J.  Property  Exempt.     Gh.  12 

[No.   1.] 

appraiser's  return. 

When  the  homestead  is  valued  at  less  than  one  thousatul  dollars,  ami 
personal  property  also  appraised. 
The  undersigned  having  been  duly  summoned  and  sworn  to  act  as  appraisers 

of  the  homestead   and  personal   property  exemption   of  A.   B.,  of    

Township,   County,  by  C.  D.,  sheriff,   (or  constable  or  deputy)    of 

said  county,  do  hereby  make  the  following  return:  We  have  viewed  and  appraised 
the  homestead  of  the  said  A.  B.,  and  the  dwellings  and  buildings  thereon,  owned 
and  occupied  by  said  A.  B.  as  a  homestead,  to  be  one  thousand  dollars    (or  any 

less  sum)    and  that  the  entire  tract,  bounded  by  the  lands  of   and 

is  therefore  exempted  from  sale  under  execution  according  to  law. 

At  the  same  time  and  place  we  viewed  and  appraised  at  the  values  annexed  the 
following  articles  of  personal  property,  selected  by  said  A.  B.  (here  specify  the 
articles  and  their  value,  to  be  selected  by  the  debtor  or  his  agent),  which  we 
declare  to  be  a  fair  valuation,  and  that  the  said  articles  are  exempt  under 
said  execution.  We  hereby  certify  that  we  are  not  related  by  blood  or  marriage 
to  the  judgment  debtor  or  the  judgment  creditor  in  this  execution,  and  have  no 
interest,  near  or  remote,  in  the  above  exemptions. 

Given  under  our  hands  and  seals,  this   ....    day  of    19 ...  . 

O.  K (L.  g.) 

L.  M (L.  S.) 

R.  S (L.  S.) 

The   above   return   was   made   and    subscribed   in   my   presence,   day   and   date 
above  given. 

CD ,    (Sheriff  or  Constable). 

[No.   2.] 

Petition  for  homestead  before  a  justice  of  the  peace. 

Before    ,   J.   P. 


In  the  matter  of  A.  B. 

.  County. 

A.  B.  respectfully  shows  that  he  (she  or  they,  as  the  case  may  be)  is  (or  are) 
entitled  to  a  homestead  exempt  from  execution  in  certain  real  estate  in  said 
county,  and  bounded  and  described  as  follows:  (Here  describe  the  property). 
Tlie  true  value  of  which  he  (she  or  they,  as  the  case  may  be)  believes  to  be 
one  thousand  dollars,  including  the  dwelling  and  buildings  thereon.  He  (she 
or  they)  further  shows  that  he  (she  or  they,  as  the  case  may  be)  is  (or  are) 
entitled  to  a  personal  property  exemption  from  execution,  to  the  value  of  (here 
state  the  value)  consisting  of  the  following  property:  (Here  specify.)  He 
(she  or  they,  as  the  case  may  be)  therefore  prays  your  worship  to  appoint 
three  disinterested  persons  qualified  to  act  as  jurors,  as  assessors,  to  view  the 
premises,  allot  and  set  apart  to  your  petitioner  his  homestead  and  personal 
property   exemption,    and    report   according   to   law. 

[No.   3.] 
Form   for   appraisal   of  personal  property   exemption. 

The  undersigned  having  been  duly  summoned  and  sworn  to  act  as  appraisers 

of   the   personal   property   of   A.    B.,   of    Township,    

County,   and   to   lay  off  the  exemption  given  by  law  thereto,  by  C.  D.,   sheriff 


709     CIVIL  PEOCEDURE— A"A'A7.  Property  Exempt.     Ch.   12 

(or  other  officer)    of  said  county,  do  hereby  make  and   subscribe  the  following 
return : 

We   viewed   and   appraised   at   the   values   annexed   the   following   articles   of 

personal   propertj'   selected  by  the  said  A.  B.,  to-wit : 

which   we   declare   to   be   a   fair   valuation,    and   that    said   articles   are   exempt 
under  said  execution. 

We  hereby  certify,  each  for  himself,  that  we  are  not  related  by  blood  or  mar- 
riage to  the  judgment  debtor  or  judgment  creditor  in  this  execution,  and  have  no 
interest,  near  or  remote,  in  the  above  exemptions. 

Given  under  our  hands  and  seals,  this day  of 19.  .  .  . 

O.  K (L.  S.) 

L.  M (L.  S.) 

R.  S (L.  S.) 

The  above  return  was  made  and  sub.seribed  in  my  presence,  day  and  date 
above  given.  CD { Sheriff  or  Constable ) . 

[Xo.   4.] 
Certificate  of  qualification  to  he  endorsed  on  return  by  sheriff. 

The   within   named   B.    F..    G.    H.    and   J.    R.    were    summoned    and   qualified 

according   to   law,   as    appraisers    of   the    exemption    of   the    said 

A.  Bi,  under  an  execution  in  favor  of  X.  Y.,  this  ....  day  of 19 ...  . 

CD (Sheriff). 

[No.    5.] 
Minute  on   execution   doclcet. 


} 


X Y.. 

vs. 
A B.. 

Kxecution  issued    19 ... . 

Homestead  appraised  and  set  off  and  return  made   19.  .  .  . 

Code,  s.  524. 

XXXII.     Special  Proceedings. 

710.  This  chapter  applicable  to.  The  provisions  of  this  chapter 
on  fivil  procedure  nre  ;ipplical)le  to  special  proceedings,  except  as 
otherwise  provided. 

Code,  s.  278. 
Note.     See  s.  348. 

711.  How  commenced.  Wlien  sjjpcial  proceedino-s  are  had  against 
adverse  parties,  they  shall  he  CDnimeiiced  as  is  jirescribed  for  civil 
actions. 

Code,  s.  287;    18G8-9,  c.  9.3,  s.  4. 
Note.     See  s.  718. 

712.  Summons  in;  what  to  contain.  The  snmnions  in  special 
proceedings  sliall  command  tlie  ollieer  to  snnimon  the  defendant  to 
appear  at  the  office  of  the  clerk  of  tlie  superior  court  on   a  day 

190 


712  CIVIL  PROCEDURE— ZZX/Z.  Special  Proceedings.  Ch.   12 

named  in  the  summons,  to  answer  the  complaint  or  petition  of  the 
plaintiff.  The  number  of  days  within  which  the  defendant  is  sum- 
moned to  appear  shall  in  no  case  be  less  than  ten  exclusive  of  the 
day  of  service. 

Code,  s.   279. 

713.  Return  of  summons.  The  officer  to  whom  the  summons  is 
addressed  shall  note  on  it  the  day  of  its  delivery  to  him ;  if  required 
by  the  plaintiff,  he  shall  execute  the  same  immediately.  When 
executed,  he  shall  immediately  return  the  summons  with  the  date 
and  manner  of  its  execiition,  by  mail  or  otherwise,  to  the  clerk  of 
the  court  issuing  it. 

Code,  s.  280;   C.  C.  P.,  s.  75. 

714.  Complaint  filed,  when.  It  shall  be  sufficient  for  the  plain- 
tiff to  file  his  complaint  or  petition  with  the  clerk  of  the  court,  to 
which  the  summons  is  returnable,  at  the  time  of  issuing  the  sum- 
mons,' or  within  ten  days  thereafter. 

Code,  s.  281;  C.  C.  P.,  s.  76;   1876-7,  c.  241,  s.  4. 

715.  Nonsuit  for  failure  to  file  in  time.  If  the  plaintiff  shall  fail 

to  file  his  complaint  or  petition  within  the  time  limited  by  the  sum- 
mons for  the  appearance  and  answer  of  the  defendant,  the  defend- 
ant shall  be  entitled  to  demand  judgment  of  nonsuit  against  the 
plaintiff. 

Code,  s.  282;   C.  C.  P..  s.  78. 

716.  Time  enlarged.  The  time  for  filing  the  complaint,  petition, 
or  any  pleading  whatever,  may  be  enlarged  by  the  court  for  good 
cause  shown  by  affidavit,  but  it  shall  not  be  enlarged  by  more  than 
ten  additional  days,  nor  more  than  once,  unless  the  default  shall 
have  been  occasioned  by  accident  over  which  the  party  applying 
had  no  control,  or  by  the  fraud  of  the  opposing  party. 

Code,  s.  283;  C.  C.  P.,  s.  79. 

717.  Equitable  defenses  pleaded;  transferred  to  civil   issue 

docket;  amendments,  in  special  proceedings  which  have  been,  or 
may  hereafter  be  begun,  it  shall  be  competent  for  any  defendant  or 
other  party  thereto  to  plead  any  equitable  or  other  defense,  or  ask 
any  equitable  or  other  relief  in  the  pleadings  which  it  would  be 
competent  to  ask  in  a  civil  action ;  and  when  such  pleas  are  filed  the 
clerk  shall  transfer  the  cause  to  the  civil  issue  docket  for  trial  during 
term  upon  all  issues  raised  by  the  pleadings.  It  shall  be  competent 
for  the  trial  judge  to  allow  amendments  to  the  pleadings  and  inter- 
pleas  in  behalf  of  any  person  claiming  an  interest  in  the  property 
with  a  view  to  substantial  justice  between  the  parties. 
1903,  c.  566. 

191 


718  CIVIL  PEOCEDUEE— A'ZA'Z/.  Special  Proceedings.  Ch.   1-2 

718.  Ex  parte;  begun  by  petition,  if  all  the  parties  in  interest 
join  in  the  proceeding  and  ask  the  same  relief,  the  coiuniencement 
of  the  proceedings  shall  be  by  jjetition,  setting  forth  the  facts  entitling 
the  petitioners  to  relief,  and  the  nature  of  the  relief  demanded. 

Code,  3.  284;    1S08-9,  c.  93. 

719.  Clerk  hears  summarily;  attorney  must  file  authority  from 

nonresident,  in  such  cases,  if  all  persons  to  be  affected  by  the 
decree,  or  their  attorney,  shall  have  signed  the  petition,  and  they 
be  of  full  age,  the  clerk  of  the  superior  court  shall  have  power  to 
hear  the  petition  siimmarily,  and  to  decide  the  same.  If  either  or  any 
of  the  petitioners  shall  be  residing  out  of  the  state,  an  authority 
from  him  or  them,  to  the  attorney,  in  writing,  must  be  filed  with 
the  clerk,  before  he  shall  make  any  order  or  decree  to  prejudice 
their  rights. 

Code,  s.  285;   1868-9,  c.  93,  s.  2. 

720.  Judge  approves  when  infants  are  petitioners,  if  any  of 

the  petitioners  be  an  infant,  or  the  guardian  of  an  infant,  acting 
for  him,  no  final  order  or  judgment  of  the  clerk,  affecting  the  merits 
of  the  case,  and  capable  of  being  prejudicial  to  the  infant,  shall 
be  valid,  imless  submitted  to  and  approved  by  the  judge  resident 
in  the  district  or  the  judge  holding  court  therein. 

Code,  s.  286;   1887,  c.  61;  C.  C.  P.,  s.  420;   1868-9,  c.  93,  s.  3. 

Note.     For  what  judge  to  approve,  see  s.  571. 

721.  Ex  parte  proceedings  validated.  Any  ajiproval  made  prior 

to  the  tenth  day  of  February,  one  thousand  eight  hundred  and 
eighty-seven,  of  any  sale  of  the  land  of  any  infant  in  any  ex  parte 
proceeding,  wherein  such  infant  has  appeared  by  his  or  her  guard- 
ian, by  a  judge  of  the  district  or  a  judge  holding  court  therein,  is 
hereby  confirmed,  as  far  as  regards  the  jurisdiction  of  the  judge 
approving  such  proceedings. 
1887,  c.  61,  s.  2. 

722.  Orders  signed  by  judge.  Every  order  or  judgment  in  a 
s]iecial  proceeding,  which  is  required  to  be  made  by  a  judge  of  the 
superior  court,  either  in  or  out  of  term,  shall  be  authenticated  by 
his  signature. 

Code,  s.  288;   1868-9,  c.  93,  s.  5;   1872-3,  c.   100. 

723.  Reports  of  commissioners  and  jurors;  confirmed,  when. 

Every  order  or  jndgiiuiil  in  a  spi'i'ial  prucocding  imposing  any  duty 
on  commissioners  or  jurors  shall  prescribe  the  time  within  whiqji 
such  duty  shall  be  performed,  except  in  cases  where  the  time  is  pre- 
scribed by  statute.      The  conunissioncrs  or  jurors  shall  within  twenty 


723  CIVIL  PEOCEDURE— X.YZ//.  Special  ProceecUnfja.  Ch.   12 

days  after  the  performance  of  such  duty  file  their  report  with  the 
clerk  of  the  superior  court ;  and  if  no  exception  is  filed  to  such  report 
within  twenty  days,  the  court  may  proceed  to  confirm  the  same  on 
motion  of  any  party  and  without  special  notice  to  the  other  parties. 
1893,  c.  209. 

724.  No  report  set  aside  for  trivial  defect.  No  report  or  return 

made  by  any  commissioners  shall  be  set  aside  and  sent  back  to  them 
or  others  for  a  new  report  by  reason  of  any  defect  or  omission  not 
affecting  the  substantial  rights  of  the  parties,  but  such  defect  or  omis- 
sion may  be  amended  by  the  court,  or  by  the  commissioners,  by  per- 
mission of  the  court. 

Code,  s.  289;   1868-9,  c.  93,  s.  7. 

725.  Commissioners  to  sell  to  settle  in  sixty  days,  in  all  actions 

or  special  proceedings  when  any  person  shall  be  appointed  commis- 
sioner to  sell  any  real  or  jjersonal  property,  he  shall,  within  si.xty 
days  after  the  maturity  of  the  note  or  bond  for  the  balance  of  the 
purchase  money  of  said  real  or  personal  property,  or  the  payment  of 
the  amount  of  the  bid,  when  the  sale  is  for  cash,  file  with  the  clevk 
of  the  superior  court  a  final  account  of  his  receipts  and  disbursements 
on  account  of  said  sale ;  and  the  clerk  shall  audit  said  account  and 
record  it  in  the  book  in  which  the  final  settlements  of  executors  and 
administrators  are  recorded. 
1901,  c.  614,  ss.   1,  2. 

XXXIII.     Aebest  and  Bail. 

726.  Arrested  only  as  herein  prescribed.   X^o  person  shall  be 

arrested  in  a  civil  action,  except  as  prescribed  by  this  chapter ;  but 
this  provision  shall  not  apply  to  proceedings  for  contempt. 
Code,  s.  290;   C.  C.   P.,  s.    148. 

727.  In  what  cases.  The  defendant  may  be  arrested,  as  herein- 
after prescribed,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  damages,  on  a  cause  of  action 
not  arising  out  of  contract,  where  the  defendant  is  not  a  resident 
of  the  state,  or  is  aboiit  to  remove  therefrom,  or  where  the  action  is 
for  an  injury  to  person  or  character,  or  for  injuring,  or  for  wrong- 
fully taking,  detaining  or  converting  property  real  or  personal. 

2.  In  an  action  for  a  fine  or  ])enalty,  or  for  seduction,  or  for  money 
received,  or  for  property  embezzled  or  fraudulently  misapplied  by 
a  public  ofiicer,  or  by  an  attorney,  solicitor  or  counsellor,  or  by  an 
ofiicer  or  agent  of  a  corporation  or  banking  association,  in  the  course 
of  his  employment  as  such,  or  by  any  factor,  agent,  broker  or  other 

Rev.  Vol.  I— 0  193 


727    CIVIL  PROCEDUEE— A'XA'Z//.  Arrest  and  Bail.    Ch.  12 

person  in  a  fiduciary  capacity,  or  for  any  misconduct  or  neglect  in 
office,  or  in  a  professional  employment.    . 

3.  In  an  action  to  recover  the  possession  of  personal  property, 
unjustly  detained,  where  the  property,  or  any  part  thereof,  has  been 
concealed,  removed  or  disposed  of,  so  that  it  can  not  be  found  or 
taken  by  the  slieriff,  and  with  the  intent  that  it  should  not  be  so 
found  or  taken,  or  with  the  intent  to  deprive  the  plaintiff  of  the 
benefit  thereof. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contracting 
the  debt,  or  incurring  the  obligation  for  which  the  action  is  brought, 
or  in  concealing  or  disposing  of  the  property  for  the  taking,  deten- 
tion or  conversion  of  which  the  action  is  brought,  or  when  the 
action  is  brought  to  recover  damages  for  fraud  or  deceit. 

5.  When  the  defendant  has  removed,  or  disposed  of,  his  property, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

But  no  woman  shall  be  arrested  in  any  action,  except  for  a  wilful 
injury  to  person,  character  or  property ;  and  no  person  shall  be 
arrested  on  Sunday. 

Code,  s.  291;  C.  C.  P.,  s.  149;  1869-70,  c.  79;  R.  C,  c.  31,  s.  54;  1777,  c.  118, 
s.  G  :  1891,  c.  541. 

Note.     For  arrest  and  bail  in  usurping  an  office,  see  s.  831. 

728.  Who  issues  order.  An  order  for  the  arrest  of  the  defend- 
ant must  be  obtained  from  the  court  in  which  the  action  is  brought 
or  from  a  judge  thereof. 

Code,  s.  292;   C.  C.  P.,  s.   150. 

729.  Order  obtained  on  affidavit.  The  order  may  be  made  where 
it  .sliall  appear  to  the  court  or  judge  thereof,  by  the  afiidavit  of  the 
plaintiff  or  of  any  other  person  that  a  suflicient  cause  of  action 
exists,  and  that  the  case  is  one  of  those  provided  for  in  this  sub- 
chapter. 

Code,   s.   293;    C.   C.   P.,   s.   151. 

730.  Undertal<ing  before  order.  Before  making  the  order  the 
court  or  judge  shall  require  a  written  undertaking  on  the  part  of 
the  plaintiff,  with  sufficient  surety  payable  to  the  defendant,  to  the 
effect  that  if  the  defendant  recover  judgment,  the  plaintiff  will  pay 
all  damages  which  he  may  sustain  by  reason  of  the  arrest,  not 
exceeding  the  sura  specified  in  the  undertaking,  which  shall  be  at 
least  one  hundred  dollars. 

Code,  s.  294;   C.  C.  P..  s.  152;   18G8-9,  c.  277,  s.  7. 
Note.     For  surety  (.'oinpaiiies  as  surety,  see  ss.  272-277. 

731.  Time  when  order  may  issue;  form.  The  order  may  be  made 

to   accompany  the   summons,   or  to  issue   at  any  time   afterwards, 

194 


731    CIVIL  PROCEDUKE— A'XZ///.  Arrest  and  Bail.    Ch.   12 

before  judgment.  It  shall  require  the  sheriff  of  the  county  where 
the  defendant  may  be  found  forthwith  to  arrest  him  and  hold  him 
to  bail  in  a  specified  sum,  and  to  return  the  order  at  a  place  and 
time  therein  mentioned  to  the  clerk  of  the  court  in  which  the  action 
is  brought,  and  notice  of  such  return  shall  be  served  on  the  plaintiff 
or  his  attorney  as  prescribed  by  law  for  the  service  of  other  notices. 
Code,  s.  295;  C.  C.  P..  s.  153. 

732.  Copy  of  affidavit  and  order  to  defendant.   The  affidavit 

and   order   of   arrest   shall   be   delivered   to   the   sheriff,    who,   upon 
arresting  the  defendant,  shall  deliver  him  a  copy  thereof. 
Code,  s.  200 ;  C.  C.  P.,  s.  154. 

733.  Order,  how  executed.  The  sheriff  shall  execute  the  order 
by  arresting  the  defendant  and  keeping  him  in  custody  until  dis- 
charged by  law;  and  may  call  the  power  of  the  county  to  his  aid  in 
the  execution  of  the  arrest. 

Code,  s.  297 :  C.  C.  P.,  s.  155. 

734.  Vacated  unless  served  before  judgment;  time  to  move  to 

vacate.  The  order  of  arrest  shall  be  of  no  avail,  and  shall  be  vacated 
or  set  aside  on  motion,  unless  the  same  is  served  upon  the  defend- 
ant, as  provided  by  law,  before  the  docketing  of  any  judginent  in  the 
action. 

Code,  s.  295 ;  C.  C.  P.,  s.  153. 

735.  IVIotion  by  defendant  to  vacate  order;  jury  trial,  when. 

A  defendant  arrested  may  at  any  time  before  judgment  apply  on 
motion  to  vacate  the  order  of  arrest  or  to  reduce  the  amount  of  bail. 
And  he  may  deny  upon  oath  the  facts  alleged  in  the  affidavit  of  the 
plaintiff'  on  which  the  order  of  arrest  was  granted,  and  demand 
that  the  issue  so  raised  by  the  plaintiff's  affidavit  and  the  defend- 
ant's denial  be  submitted  to  the  jury  and  tried  in  the  same  manner 
as  other  issues  are  tried  by  a  jiiry;  and  if  the  issues  are  found  by 
the  jury  in  favor  of  the  defendant,  judgment  shall  be  rendered  dis- 
charging the  defendant  from  arrest  and  vacating  the  order  of  arrest, 
and  the  defendant  shall  recover  of  the  plaintiff  all  costs  of  the  pro- 
ceeding in  such  arrest  as  he  shall  have  incurred  in  defending  the  said 
action. 
Code,  s.  310 ;  1889,  c.  497 ;  C.  C.  P.,  s.  174. 

736.  Counter  affidavits  by  plaintiff,  when.    If  the  motion  be 

made  upon  affidavits  on  the  part  of  the  defendant,  but  not  otherwise, 
the  plaintiff  may  oppose  the  same  by  affidavits,  or  other  proof,  in 
addition  to  those  on  which  the  order  of  arrest  was  made. 
Code,  s.  317;  C.  C.  P.,  s.  175. 

195 


737    CIVIL  PROCEDURE— A'.YAV//.  Arrest  and  Bail.    Ch.   12 

737.  How  defendant  discharged.  The  defendant,  at  any  time  be- 
fore execution,  shall  be  discharged  from  the  arrest,  either  upon  giving 
bail  or  upon  dejiositing  the  amoTint  mentioned  in  the  order  of  aiTest. 
as  provided  in  this  chapter. 

Code,  s.  298;   C.  C.  P.,  s.  156. 

738.  Defendant's  undertaking.  The  defendant  may  give  bail  by 
causing  a  written  undertaking,  payable  to  the  plaintiff,  to  be  executed 
by  sufficient  sTirety  to  the  effect  that  the  defendant  shall  at  all  times 
render  himself  amenable  to  tie  process  of  the  court,  during  the  pend- 
ency of  the  action,  and  to  such  as  may  be  issued  to  enforce  the  judg- 
ment therein,  or  if  he  be  ari-ested  for  the  ca\ise  mentioned  in  the  third 
subdivision  of  section  seven  hundred  and  twenty-seven,  an  undertak- 
ing to  the  same  effect  as  that  provided  by  law  to  be  given  by 
defendant  for  the  retention  of  property,  under  subchapter  entitled 
Claim  and  Delivery. 

Code,  s.  299;  C.  C.  P.,  s.  157. 

Note.     See  ss.  727.  752. 

739.  Defendant's   undertal<ing   delivered   to   clerk;   plaintiff's 

exceptions.  Within  the  time  limited  f(ir  that  purpcise,  the  sheriff 
shall  deliver  the  order  of  arrest  to  the  clerk  of  the  court  in  which  the 
suit  is  brought,  with  his  return  endorsed,  and  a  certified  copy  of  the 
undertaking  of  the  bail,  and  notify  the  plaintiff  or  his  attorney 
thereof.  The  plaintiff",  within  ten  da^'s  thereafter,  may  serve  upon 
the  sheriff  a  notice  that  he  does  not  accept  the  bail,  or  he  shall  be 
deemed  to  have  accepted  it,  and  the  sheriff  shall  be  exonerated  from 
the  liability. 

Code,  s.  304;  C.  C.  P.,  s.  162. 

740.  Qualification  of  bail.  The  qualifications  of  bail  must  be  as 
follows : 

1.  Each  of  them  must  be  a  resident  and  freelmldcr  within  the 
state. 

2.  They  must  each  be  worth  the  amount  s]iecificd  in  the  order 
of  arrest,  exclusive  of  property  exempt  from  execution  ;  but  the  judge, 
on  justification,  may  allow  more  than  two  bail  to  justify  severally 
in  amounts  less  than  that  expressed  in  the  order,  if  the  whole  justifi- 
cation be  equivalent  to  that  of  two  sufiicicnt  bail. 

Code,  s.  306;  C.  C.  P.,  s.  164. 

741.  Notice  of  justification:  new  bail.   On  the  receijit  of  sucli 

notice,  the  sheriff'  or  defendant  may,  within  ten  days  thereafter,  give 
to  the  plaintiff,  or  his  attorney,  notice  of  the  ju.stification  of  the 
same  or  other  bail  (specifying  the  ])laces  of  residence  and  occupa- 
tion of  the  latter)  before  the  court,  justice  of  the  peace,  or  judge, 


Til    CIVIL  PROCEDURE— XA'AV/7.  Arrest  and  Bail.    Ch.   12 

at  a  specified  time  and  place;  the  timfi  to  be  not  less  than  five  nor 
more  than  ten  days  thereafter.  In  case  other  bail  be  given,  there 
shall  be  a  new  undertaking,  in  the  form  hereinbefore  prescribed. 

Code,  s.  305;  C.  C.  P.,  s.  163. 

Note.     See  s.  738. 

742.  Justification  of  bail.  For  the  purpose  of  justification,  each 
of  the  bail  shall  attend  before  the  court  or  judge,  or  a  justice  of  the 
peace,  at  the  time  and  place  mentioned  in  the  notice,  and  may  be 
examined  on  oath,  on  the  part  of  the  plaintifi^,  touching  his  suffi- 
ciency, in  such  a  manner  as  the  court,  the  justice  of  the  peace,  or 
the  judge,  in  his  discretion,  may  think  proper.  The  examination 
shall  be  reduced  to  writing,  and  subscribed  by  the  bail,  if  required 
by  the  plaintiff. 

Code,  s.  307;  C.  C.  P.,  s.  165. 

743.  If  bail  sufficient,  examination  certified,  sheriff  exonerated. 

If  the  court,  justice  of  the  peace  or  judge  find  the  bail  suftieient,  he 
shall  annex  the  examination  to  the  undertaking,  endorse  his  allow- 
ance thereon,  and  cause  them  to  be  filed  with  the  clerk;  and  the 
sheriff  shall  thereupon  be  exonerated  from  liability. 
Code,  s.  308;   C.  C.  P.,  s.   166. 

744.  Deposit  in  lieu  of  bail.  The  defendant  may,  at  the  time  of 
his  arrest,  instead  of  giving  bail,  deposit  with  the  sheriif  the  amount 
mentioned  in  the  order.  The  sheriff  shall  thereupon  give  the  defend- 
ant a  certificate  of  the  deposit,  and  the  defendant  shall  be  discharged 
from  custody. 

Code,  s.  309;  C.  C.  P.,  s.  167. 

745.  Deposit  paid  into  court;  liability  on  sheriff's  bond.   The 

sheriff  shall,  within  four  days  after  tlie  deposit,  pay  the  same  into 
court,  and  shall  take  from  the  ofiicer  receiving  the  same  two  certifi- 
cates of  such  payment,  the  one  of  which  he  shall  deliver  to  the  plain- 
tiff, and  the  other  to  the  defendant.  For  any  default  in  making- 
such  payment,  the  same  proceedings  may  be  had  on  the  official  bond 
of  the  sheriff,  to  collect  the  sum  deposited,  as  in  other  cases  of  delin- 
quencies. 

Code,  s.   310;   C.   C.  P.,  s.   168. 

746.  Bail  substituted  for  deposit.  If  money  be  deposited,  as  pro- 
vided in  the  two  preceding  sections,  bail  may  be  given  and  justified 
upon  notice  according  to  law  any  time  before  judgment;  and  there- 
upon the  judge,  court  or  justice  of  the  peace  shall  direct,  in  the  order 
of  allowance,  that  the  money  deposited  be  refunded  by  the  sheriff 
or  other  officer  to  the  defendant,  and  it  shall  be  refunded  accoi'dingly. 

Code,  s.  311;  C.  C.  P.,  s.  169. 


747    CIVIL  PEOCEDURE— i'XZ/ZZ.  Amst  ami  Bail.    Ch.  12 

747.  Deposit  applied  to  pJaintiff's  judgment.  When  money  shall 

have  been  so  deposited,  if  it  remain  on  deposit  at  the  time  of  an 
order  or  judgment  for  tJie  payment  of  money  to  the  plaintiff,  the 
clerk  or  other  officer  shall,  under  the  direction  of  the  court,  apply 
the  same  in  satisfaction  thereof,  and  after  satisfying  the  judgment, 
shall  refund  the  surplus,  if  any,  to  the  defendant.  If  the  judgment 
be  in  favor  of  the  defendant  the  clerk  or  other  officer  shall  refund 
to  him  the  whole  sum  deposited  and  remaining  unapplied. 

Code,  s.   312;   C.  C.   P.,  s.   170. 

748.  Defendant  in  jail,  sheriff  may  take  bail.  If  any  person  for 

want  of  bail  shall  be  lawfully  committed  to  jail,  at  any  time  before 
final  judginent,  the  sheriff',  or  other  officer  having  him  in  custody, 
may  take  bail  and  discharge  him;  and  the  bail  bond  shall  be  regarded 
in  every  respect  as  other  bail  bonds,  and  shall  be  returned  and  sued 
on  in  like  maimer ;  and  the  officer  taking  it  shall  make  special  return 
thereof,  with  the  bond,  at  the  first  court  which  is  held  after  it  is 
taken. 

Code,  s.  318;  R.  C,  c.  11,  s.  8. 

749.  Sheriff  liable  as  bail,  when.  If,  after  being  arrested,  the 
defendant  escape,  or  be  rescued,  or  bail  be  not  given  or  justified,  or 
a  deposit  be  not  made  instead  thereof,  the  sheriff  shall  himself  be 
liable  as  bail.  But  he  may  discharge  himself  from  such  liability 
by  the  giving  and  justification  of  bail  at  any  time  before  process 
against  the  person  of  the  defendant,  to  enforce  an  order  or  judgment 
in  the  action. 

Code,  s.  313;  C.  C.  P.,  s.  171. 

750.  Action  on  sheriff's  bond,  when.  If  a  judgment  be  recovered 
against  the  sheriff",  upon  his  liability  as  bail,  and  an  execution  thereon 
be  returned  unsatisfied,  in  whole  or  in  part,  the  same  proceedings 
may  be  had  on  the  official  bond  of  the  sheriff,  to  collect  the  deficiency, 
as  in  other  cases  of  delinquency. 

Code,  s.  314;  C.  C.  P.,  s.  172. 

751.  Bail  exonerated.  The  bail  may  be  exonerated,  either  by 
the  death  of  the  defendant  or  his  imprisonment  in  a  state  prison, 
or  by  his  legal  discharge  from  the  obligation  to  render  himself  amen- 
able to  the  process,  or  by  his  surrender  to  the  sheriff  of  the  county 
where  he  was  arrested,  in  execiition  thereof,  at  any  time  before  final 
judgment  against  the  bail. 

Code,  s.  303;  C.  C.  P.,  s.  161. 

752.  Surrender  of  defendant.  At  any  time  before  final  judgment 
against  them,  the  bail  may  surrender  the  defendant  in  their  exonera- 


752    CIVIL  PEOCEDURE— ZXZ//7.  Arrest  and  Bail.    Ch.   12 

tion,  or  he  may  surrender  himself  to  the  sheriff  of  the  county  where 
he  was  arrested  in  the  following  manner: 

1.  A  certified  copy  of  the  undertaking  of  the  bail  shall  be 
delivered  to  the  sheriff',  who  shall  detain  the  defendant  in  his  custody 
thereon,  as  upon  an  order  of  arrest,  and  shall,  by  a  certificate  in 
writing,  acknowledge  the  surrender. 

2.  Upon  the  production  of  a  copy  of  the  undertaking  and  sheriff's 
certificate,  the  court,  or  a  judge  thereof,  may,  upon  a  notice  to  the 
plaintiff  of  ten  days,  with  a  copy  of  the  certificate,  order  that  the 
bail  be  exonerated,  and  on  filing  the  order  and  papers  used  on  said 
application,  they  shall  be  exonerated  aceordingly.  But  this  section 
shall  not  apply  to  an  arrest  for  cause  mentioned  in  subdivision  three 
of  section  seven  hundred  and  twenty-seven,  so  as  to  discharge  the  bail 
from  an  undertaking  given  to  the  effect  provided  by  law  to  be 
given  by  defendant  for  the  retention  of  property,  under  subchapter 
entitled  Claim  and  Delivery. 

Code.  s.  300;  C.  C.  P.,  s.  158. 
Note.     See  ss.  727,  752. 

753.  Bail  may  arrest  defendant.  For  the  purpose  of  surrender- 
ing the  defendant,  the  bail,  at  any  time  or  place,  before  they  are 
finally  charged,  may  themselves  arrest  him,  or  by  a  written  authority, 
endorsed  on  a  certified  copy  of  the  undertaking,  may  empoVer  any 
person  over  twenty-one  years  of  age  to  do  so. 

Code,   s.   301;    C.   C.   P.,   s.   159. 

754.  Proceedings  against  bail  by  motion.  In  case  of  failure  to 

comply  with  the  undertaking  the  bail  may  be  proceeded  against  by 
motion  in  the  cause  on  ten  days'  notice  to  such  bail. 

Code,  9.  302;   C.  C.  P.,  s.   160. 

755.  Bail  liable  to  sheriff,  when.  The  bail  taken  upon  the  arrest 
shall,  unless  they  justify,  or  other  bail  be  given  or  justified,  be 
liable  to  the  sheriff  by  action  for  damages  which  he  may  sustain  by 
reason  of  such  omission. 

Code.  s.  315;  C.  C.  P.,  s.  173. 

756.  Bail  to  pay  costs,  when.  Whenever  a  notice  shall  issue 
against  any  person,  as  the  bail  of  any  other  person,  and  the  bail,  at 
or  before  the  term  of  the  court  at  which  such  bail  is  bound  to 
appear,  or  ought  to  plead,  shall  not  be  discharged  from  his  liability 
as  bail  by  the  death  or  surrender  of  his  principal  or  otherwise;  in 
that  case  the  bail  shall  be  liable  for  all  costs  which  may  accrue  on 
said  notice,  notwithstanding  the  bail  may  be  afterwards  discharged, 
by  the  death  or  surrender  of  the  principal,  or  otherwise. 

Code,  s.  319;   R.  C,  c.  11,  s.  10. 


7.-.7    CIVIL  PROC'EUrKK— -Y.V.V///.  Anrst  and  Bail.    Ch.   li' 

757.  Bail  not  discharged  by  amendment.    Xo  amendinent  of 

process  or  jilciidiin;'  shall   discliariic   tlic   liail   <>{  tlie  inirtv   arrested 
thereon,   unless   the   aiueiidinent   be    to   enlarge   the   sum   demanded 
beyond  the  sum  exjiressed  in  the  bail  bond. 
Code,  s.  320;  R.  C,  c.  11,  s.  11. 

XXXIV.     Attachment. 

758.  When  issued.  A  warrant  of  attachment  against  the  proji- 
erty  of  one  or  more  defendants  in  an  action,  may  be  granted  upon 
the  application  of  the  plaintiff,  as  specified  in  this  chapter,  when 
the  action  is  to  recover  a  sum  of  money  only,  or  damages  for  one 
or  more  of  the  following  causes : 

1.  Breach  of  contract,   express  or  implied. 

2.  Wrongful  conversion  of  personal  ]n-o]3ertv. 

3.  Any  other  injttry  to  real  or  per.sonal  property,  in  consequence  of 
negligence,  fraud,  or  other  wrongful  act. 

4.  Any  injtiry  to  the  person,  catised  by  negligence  or  wrongful 
act. 

Code,  s.  347;   1893,  c.  77;  1901,  c.  740;  C.  C.  P.,  s.  197. 

759.  Affidavit  must  show  what.  To  entitle  the  plaintiff  to  such 
a  warrant  he  must  show  by  affidavit  to  the  satisfaction  of  the  court 
granting  the  same  as  follows : 

1.  That  one  of  the  causes  of  action  specified  in  the  preceding 
section  exists  against  the  defendant.  If  the  action  is  to  recover 
damages  for  breach  of  contract,  the  defendant  must  show  that  the 
plaintiff  is  entitled  to  recover  a  sum  stated  therein,  over  and  above 
all  counterclaims  known  to  him. 

2.  That  the  defendant  is  either  a  foreign  corporation  or  not  a 
resident  of  the  state,  or  a  domestic  coriioration  none  of  whose  officers 
can  be  found  in  the  state  after  due  diligence ;  or,  if  he  is  a  natural 
person  and  a  resident  of  the  state,  that  he  has  dejiarted  therefroin, 
with  intent  to  defraud  his  creditors  or  to  avoid  service  of  sunuiunis, 
or  keeps  himself  concealed  therein  with  like  intent;  or,  if  the  defend- 
ant is  a  natural  person  or  a  domestic  corporation,  that  he  or  it  has 
removed,  or  is  about  to  remove,  property  from  the  state,  with  intent 
to  defraud  bis  or  its  creditors;  or  has  assigned,  disposed  of,  or 
secreted,  or  is  about  to  assign,  dispose  of,  or  secrete,  property  with 
the  like  intent. 

Code,  s.  .349:    1897,  c.  476:   C.  C.  P.,  s.  201. 

760.  Affidavits  for  attachment  filed.   It  shall  be  the  duty  of  the 

])laiHlifl'  ]ir(iruring  a   wan-iiiit   af  ;ill:iclinicnl.   wilhiii   ten   days  from 
the    issuinu'    ibercof,    to    tile   the    affidavits    im    which    the    same    was 


700         CIVIL  PROCEDUEE— A'A'X/T\  Attachment.         Cb.  12 

granted  in  the  office  of  the  clerk  of  the  superior  court  to  which,  or 
with  the  justice  of  the  peace  before  whom  the  process  is  made 
returnable. 

Code,  s.  355;   C.  C.  P.,  s.  201. 

761.  By  whom  granted.  If  the  action  be  not  founded  on  a  con- 
tract, or  if  f(.>unded  ou  a  contract  and  the  sum  demanded  exceed 
two  hundred  dollars,  a  warrant  of  attachment  may  be  obtained  from 
the  judge  of  the  district  embracing  the  county  in  which  the  action 
has  been  instituted,  or  from  the  clerk  of  the  superior  court  from 
which  the  siunmons  in  the  action  issued ;  and  it  may  be  issued  to 
any  county  in  the  state  where  the  defendant  has  property,  money, 
effects,  choses  iii  action  or  debts  due  him,  and  shall  be  made  return- 
able in  term  time  to  the  court  from  which  the  siimmons  issued. 

Code,  s.  351;  C.  C.  P.,  s.  199;  1869-70,  c.  U7 ;  1870-1,  c.  166,  as.  1,  3;  1874-5, 
e.   Ill;   1876-7,  c.  251. 

762.  Time  of  issuance;  service  of  summons  essential.    The 

warrant  of  attachment  may  be  granted  to  accompany  the  simimons, 
or  at  any  time  after  the  commencement  of  the  action.  Personal 
service  of  the  sununons  must  be  made  upon  the  defendant  against 
whose  property  the  attachment  is  granted,  within  thirty  days  after 
the  gTanting  thereof,  or  else  upon  the  expiration  of  the  same  time, 
service  of  sununons  by  publication  must  be  commenced  pursuant  to 
an  order  obtained  therefor,  and  if  publication  has  been,  or  is  there- 
after commenced,  the  service  must  be  made  complete  by  the  con- 
tinuance thereof. 

Code,  s.  348;  C.  C.  P.,  s.  197. 

763.  Undertal<ing.  Before  issuing  the  warrant,  the  officer  issu- 
ing the  same  shall  require  a  written  undertaking  on  the  part  of 
the  plaintiff,  ^vith  sufficient  surety,  to  the  effect,  that  if  the  defend- 
ant recover  jiidginent,  or  the  attachment  be  set  aside  by  order  of 
the  court,  the  jjlaintiff  will  pay  all  costs  that  may  be  awarded  to 
the  defendant,  and  all  damages  which  he  ma_y  sustain  by  reason  of 
the  attachment,  not  exceeding  the  sum  specified  in  the  undertaking, 
which  shall  be  at  least  two  hundred  dollars. 

Code,  s.  356;   C.  C.  P.,  s.  202. 

764.  Validity  of  undertaking.  It  shall  not  be  a  defense  to  an 
action  upon  an  undertaking,  given  upon  granting  a  warrant  of 
attachment,  that  the  warrant  Avas  granted  improperly,  for  want  of 
jurisdiction,  or  for  any  other  cause. 

Code,  s.  358. 

765.  To  whom  warrant  directed;  what  required  of  officer. 

The  warrant  shall  be  directed  to  the  sheriff  of  any  county  in  which 


765         CIVIL  PROCEDURE— XZZ/y.  Attachment.         Ch.   12 

the  property  of  such  defendant  may  be,  or  in  case  it  be  issued  by 
a  justice  of  the  peace,  to  such  sheriff,  or  to  any  constable  of  such 
county,  and  ■  shall  require  such  sheriff  or  constable  to  attach  and 
safely  keep  all  the  property  of  such  defendant  within  his  county, 
or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's 
demand,  the  amount  of  which  must  be  stated  in  conformity  with 
the  complaint,  together  with  costs  and  expenses ;  it  must  also  state 
when  and  where  it  shall  be  returned.  Several  warrants  may  be 
issued  at  the  same  time  to  the  sheriffs  of  different  counties:  Pro- 
vided, that  where  the  warrant  is  issued  by  a  justice  of  the  peace  to 
another  county  than  his  own,  the  clerk  of  the  superior  court  of 
his  county  shall  certify  that  he  is  a  justice  of  the  peace;  that  the 
signature  to  the  warrant  is  in  the  handwriting  of  the  said  justice 
of  the  peace. 

Code,  s.  357;   1895,  c.  435,  s.  1;  C.  C.  P.,  s.  203. 

766.  Notice,  how  served.  When  the  warrant  of  attachment  is 
taken  out  at  the  time  of  issuing  the  summons,  and  the  summons 
is  to  be  served  by  publication,  the  order  shall  direct  that  notice  be 
given  in  said  publication  to  the  defendant  of  the  issuing  of  the 
attachment,  and  when  the  warrant  of  attachment  is  obtained  after 
the  issuing  of  the  summons,  the  defendant  shall  be  notified  by  pub- 
lication of  the  fact  for  four  successive  weeks  in  some  newspaper 
published  in  the  county  to  which  it  is  returnable,  or  if  there  be 
none  such,  then  in  one  published  in  the  judicial  district  including 
said  county,  and  if  there  be  no  newspaper  published  in  the  district, 
then  in  any  newspaper  published  in  the  state.  Said  imblication 
shall  state  the  names  of  the  parties,  the  amount  of  the  claims,  and 
in  a  brief  way  the  nature  of  the  demand  and  the  time  and  place 
to  which  the  warrant  is  returnable :  Provided,  that  in  proceedings  by 
attachment  begun  and  had  before  justices  of  the  peace,  advertisement 
in  a  newspaper  shall  not  be  necessary,  but  in  all  such  cases,  advertise- 
ment at  the  courthouse  door  and  four  other  public  places  in  the  coxmty 
for  four  successive  weeks  shall  be  sufliicient  publication,  both  as  to 
the  summons  and  warrant  of  attachment. 

Code,  s.  352;    1893,  c.  363;   1870-1,  c.   1G6,  s.  3:    1874-5,  c.   Ill,  s.  2. 

767.  How  executed;  lien  on  land.  The  officer  to  whum  such  war- 
rant of  attachment  is  directed  and  delivered,  shall  seize  and  take  into 
his  possession  the  tangible  personal  property  of  flie  defendant,  or 
so  much  thereof  as  may  be  necessary,  and  he  shall  be  liable  for  the 
care  and  custody  of  such  property,  as  if  the  same  had  been  seized 
imder  execution";  he  shall  levy  on  the  real  estate  of  the  defendant  as 
prescribed  for  executions;  he  shall  make  and  return  with  the  warrant 
an  inventory  of  the  property  seized  or  levied  on ;  subject  to  the  direc- 


767         CIVIL  PKOCEDURE— XZZ/y.  Attachment.         Ch.   12 

tion  of  the  court,  he  shall  collect  and  receive  into  his  possession  all 
debts  owing  to  the  defendant,  and  take  such  legal  proceedings,  either 
in  his  own  name  or  in  that  of  the  defendant,  as  may  be  necessary  for 
that  purpose :  Provided,  that  where  the  sheriff  or  other  officer  shall 
levy  an  attachment  upon  real  estate,  he  shall  certify  said  levy  to  the 
clerk  of  the  superior  court  of  the  county  where  the  land  lies,  with 
the  names  of  the  parties,  and  the  clerk  shall  note  the  same  on  his 
judgment  docket  and  index  the  same  on  the  index  to  judgments,  and 
said  levy  shall  be  a  lien  only  from  the  date  of  said  entry  by  the 
said  clerk:  Provided,  however,  that  if  such  levy  is  so  docketed  and 
indexed  within  five  days  after  the  making  thereof  it  shall  be  a  lien 
from  the  time  it  was  made. 

Code,  s.  359;    1895,  c.  435,   s.  2;   C.  C.  P.,  s.  204. 

768.  Return  of  warrant  of,  by  sheriff.  The  sheriff  shall  return 

the  warrant  of  attachment,  and  the  undertakings  provided  for  in  this 
chapter,  with  a  statement  of  his  proceedings  thereon,  at  the  time  and 
place  at  which  it  is  on  its  face  returnable,  and  upon,  or  at  any  time 
after,  such  return,  he  may  obtain  from  the  coiirt  to  which  the  same 
was  returnable,  a  certified  copy  thereof,  which  shall  be  held  and 
deemed  for  the  purpose  of  giving  him  authority,  the  same  as  the 
original,  and  when  the  warrant  shall  have  been  fully  executed  or 
discharged,  the  sheriff  shall  return  the  same,  with  his  proceedings, 
to  said  court. 

Code,  s.  376;  C.  C.  P.,  s.  214. 

769.  When  granted  by  justice  of  peace.  If  the  action  be  not 

founded  on  contract,  and  the  value  of  the  property  in  controversy 
does  not  exceed  the  sum  of  fifty  dollars,  the  warrant  of  attachment 
may,  or  if  the  action  be  founded  on  contract,  and  the  sum  demanded 
does  not  exceed  two  hundred  dollars,  the  warrant  of  attachment  must, 
be  obtained  from,  and  made  returnable  before  some  justice  of  the 
peace  of  a  county  to  the  superior  court  of  which  it  might  have  been 
returnable  had  the  sum  demanded  exceeded  two  hundred  dollars,  or 
had  the  action  not  have  been  founded  on  contract. 
Code,  s.  353;  C.  C.  P.,  s.  200;   1876-7,  c.  251. 

770.  Issued  by  justice  of  peace;  publication.    The  plaintiff, 

within  thirty  days  after  obtaining  a  warrant  of  attachment  from  a 
justice  of  the  peace,  shall  cause  publication  thereof  to  be  made  for 
four  successive  weeks  at  the  courthouse  door  and  four  other  public 
places  in  the  county  where  the  warrant  is  returnable. 

Code,  s.  3.50;  C.  C.  P.,  s.  198;  1868-9.  c.  95,  s.  3;  1870-1,  c.  166,  s.  4; 
1874-5,  c.  111. 

Note.     For  computation  of  time,  see  s.  887. 

For  publication  of  summons,  see  ss.  442-444. 

203 


771         CIVIL  PKOCEDURE— A"A'A7T.  Attachment.         Ch.   li' 

771.  Justice's  attachment  against  land.   If  the  attaclnneut  be 

levied  on  real  i)r()iicrty,  tlic  justice  shall  proceed  to  try  the  action, 
h\it  shall  issue  no  execution  to  sell  the  real  ])ropertv,  and  shall  return 
the  papers  in  the  case  to  the  office  of  the  clerk  of  the  superior  court 
of  his  county,  where  the  judgment  shall  be  docketed.  The  levy  of 
the  attachment,  however,  shall  be  a  lien  on  the  real  estate,  when  the 
provisions  of  section  seven  hundred  and  sixty-seven  are  complied 
with. 

Code,  s.  354;   1868-9,  e.  95,  s.  4. 

772.  Sale  of  attached  property  pendente  lite.  If  any  property, 

so  seized,  shall  be  perishable,  or  is  of  such  a  character  as  to  materially 
deteriorate  in  value  pending  litigation,  or  of  such  character  that 
the  expense  of  keeping  it  \intil  the  determination  of  the  suit  would 
be  likely  to  exceed  one-fifth  of  its  value,  or  if  any  part  of  it  con- 
sists of  a  vessel,  or  of  any  share  or  interest  therein,  and  the  person 
to  M'hom  it  belongs,  or  his  agent,  shall  not  within  ten  days  after 
the  serving  of  such  attachment  reclaim  the  same,  the  shcritf  or  other 
officer  having  possession  thereof,  shall  apply  to  the  court  for  author- 
ity to  sell  the  same,  stating  the  circumstances,  and  the  same  shall  be 
sold,  under  the  order  and  direction  of  the  courtj  and  the  jjroceeds  of 
such  sale  shall  be  liable  to  the  judgment  obtained  uixm  such  attach- 
ment, and  shall  be  retained  by  the  sheriff  or  other  officer  to  await 
such  judgment. 

Code,  s.  360;  R.  C,  c.  7,  s.  6;   1777,  c.  115,  s.  28;  C.  C.  P.,  s.  205. 

Note.     For  sale  of  corporate  property  by  receiver  during  litigation,  see  s.  1232. 

773.  Replevy  by  defendant;  undertaking.   The  person  owning 

the  ]n'operty  advertised  to  be  sold  according  to  the  provisions  of  this 
subchapter,  his  agent  or  attorney  may,  at  any  time  before  sale, 
rcjjlevy  the  same,  by  giving  an  undertaking,  in  double  the  amount 
of  the  value  of  the  pro])erty,  with  sufficient  surety,  to  the  effect 
that  he  will  return  the  property  to  the  sheriff',  or  other  officer,  if 
return  thereof  be  adjudged  by  the  court,  and  pay  all  costs  that 
may  be  awarded  against  him;  and  if  return  of  said  ju-operty  can  not 
be  had,  then  that  he  will  pay  plaintiff  the  value  of  said  ]n-operty, 
and  all  costs  and  damages  that  may  be  awarded  against  him.  And 
upon  the  execution  of  this  undertaking,  the  sheriff,  or  other  officer, 
shall  deliver  said  property  to  the  person  owning  the  same. 
Code,  s.  361:  R.  C,  c.  7,  s.  5;   1777,  e.  115,  s.  28. 

774.  Defendant  may  apply  for  discharge  and  delivery  of  prop- 
erty. Whenever  the  defendant  shall  have  a]i]ieare(l  in  such  action, 
he  may  apply  to  the  court  in  which  the  action  is  pending,  or  to 
the  judge  thereof,  for  an  order  to  discharge  the  same ;  and  if  the 
same  be  granted,  all  the  proceeds  of  sale,  and  moneys  collected  in 


774        CIVIL  PROCEDURE— A'XAVT'.  Attachment.        Ch.  12 

such  action,  and  all  the  property  attached  remaining  in  the  hands 
of  any  officer  of  the  court,  under  any  process  or  order  in  such  action, 
shall  he  delivered  or  paid  to  the  defendant  or  to  his  agent,  and 
released  from  the  attachment.  And  where  there  is  more  than  one 
defendant,  and  the  several  property  of  either  of  the  defendants  has 
heen  seized  by  virtue  of  the  order  of  attachment,  the  defendant,  whose 
several  prof)erty  has  been  seized,  may  apply  in  like  manner  for 
relief. 

Code,  s.  373;  C.  C.  P.,  s.  212. 

775.  Defendant's   undertaking.    Upon   such   application   the 

defendant  shall  deliver  to  the  court  an  undertaking,  executed  by 
two  sureties  residing  in  this  state,  approved  by  such  court,  to  the 
eilect  that  such  surety  will,  on  demand,  pay  to  the  plaintiff  the 
amount  of  judgment  that  may  be  recovered  against  the  defendant 
in  the  action,  not  exceeding  the  sum  specified  in  the  undertaking, 
which  shall  he  at  least  double  the  amount  claimed  by  the  plaintiff 
in  his  complaint.  If  it  shall  appear  by  affidavit  that  the  projierty 
attached  be  of  less  value  than  the  amount  claimed  by  the  plaintiff, 
the  court  or  judge  may  order  the  same  to  be  appraised,  and  the 
amount  of  the  undertaking  shall  then  be  double  the  amount  so 
appraised.  And  where  there  is  more  than  one  defendant,  and  the  sev- 
eral property  of  either  of  the  defendants  has  been  seized  by  virtue 
of  the  order  of  attachnient,  the  defendant  whose  several  property 
has  been  seized  may  deliver  to  the  court  an  undertaking,  in  accord- 
ance with  this  section,  to  the"  effect  that  he  will,  on  demand,  pay  to 
the  plaintiff  the  amount  of  judgment  that  may  be  recovered  against 
such  defendant.  And  all  of  this  section,  applicable  to  such  an  imder- 
taking,  shall  be  applied  thereto. 
Code,  s.  374;  C.  C.  P.,  s.  213. 

776.  Corporate  stock,  etc.,  liable  to  attachment.  The  rights  or 

shares  which  the  defendant  may  have  in  the  stuck  of  any  associa- 
tion or  corporation,  together  with  the  interest  and  profits  thereon, 
and  all  other  property  in  this  state  of  such  defendant,  shall  be  liable 
to  be  attached  and  levied  on,  and  sold  to  satisfy  the  judgment  and 
execution. 

Code,  s.  362;  C.  C.  P.,  s.  206. 

Note.     For  execution  against,  see  s.  1215. 

777.  Levied  on   incorporeal  property.  The  execution  of  the 

attachment  upon  any  such  rights,  shares,  or  any  debts  or  other 
property  incapable  of  maniial  delivery  to  the  sheriff,  shall  be  made 
by  leaving  a  certified  copy  of  the  warrant  of  attaclunent  with  the 
president  or  other  head  of  the  association  (ir  coriiiiratinii,  or  with  the 


777        CIVIL  PEOCEDUEE— ZXX/F.  Attachment.        Ch.  12 

secretary,  cashier  or  managing  or  local  agent  thereof,  or  with  the 
debtor  or  individual  holding  such  property,  with  a  notice  showing  the 
property  levied  on.  Such  certified  copy  must  be  furnished  to  the 
sheriff  by  the  plaintifi',  and  the  certification  must  be  by  the  clerk 
of  the  court  from  which  the  warrant  was  issued,  or  by  the  justice 
of  the  peace  who  issued  the  same :  Provided,  that  any  person  receiving 
or  collecting  moneys  within  this  state  for  or  on  behalf  of  any  corpora- 
tion of  this  or  any  other  state  or  government  shall  be  deemed  a  local 
agent  for  the  purpose  of  this  section ;  but  such  service  can  be  made  in 
respect  to  a  foreign  corporation  only  when  it  has  property  within  this 
state,  or  the  cause  of  action  arose  therein,  or  when  the  plaintiff  resides 
in  the  state,  or  when  such  service  can  be  made  within  the  state  per- 
sonally upon  the  president,  treasurer  or  secretary  thereof. 

Code,  s.  363;  C.  C.  P.,  s.  207;  1905,  c.  294. 

Note.     See  ss.  1212-1218. 

778.  Certificate  of  defendant's  interest  to  be  furnished  to 

sheriff.  "Whenever  the  sheriff'  or  other  lawful  otficer.  with  a  war- 
rant of  attachment  or  execution,  shall  apply  to  any  president,  or 
other  head  of  any  association  or  corporation  or  director,  secretary, 
cashier  or  managing  agent  thereof,  or  to  any  debtor  or  individual, 
for  the  purpose  of  attaching  or  levying  on  the  property  of  the 
defendant  in  such  warrant,  such  officer,  debtor  or  individual  shall 
furnish  him  with  a  certificate  imder  his  hand,  designating  the 
number  of  rights  or  shares  of  the  defendant  in  such  association  or 
corporation,  with  any  dividend  or  any  incumbrance  thereon,  or  the 
amount  and  description  of  the  property  held  by  such  association, 
corporation,  or  individual,  for  the  benefit  of,  or  debt  owing  to  the 
defendant.  If  such  officer,  debtor  or  individual  refuse  to  do  so^ 
he  may  be  required  by  the  court  or  judge  to  attend  before  him,  and 
be  examined  on  oath  concerning  the  same,  and  obedience  to  such 
order  may  be  enforced  by  attachment. 

Code,  s.  369;   C.  C.  P.,  s.  208. 

Note.     See  s.  1215. 

779.  Garnishee    summoned;    answer   of;   judgment    against. 

When  the  sheriff  or  other  officers  shall  serve  an  attachment  on  any 
person  supposed  to  be  indebted  to,  or  to  have  any  effects  of  the 
defendant  in  the  attachment,  he  shall  at  the  same  time  summon  such 
person  as  a  garnishee  in  writing,  which  summons  and  notice  shall 
be  issued  by  the  clerk  of  the  superior  cotirt,  or  justice  of  the  peace, 
at  the  request  of  the  plaintiff,  to  appear  at  the  court  to  which  the 
attachment  shall  be  returnable,  or  if  issued  by  a  justice  of  the  peace, 
at  a  place  and  time  named  in  the  notice,  not  exceeding  twenty  days 
from  date  of  notice,  to  answer  upon  oath  what  he  owes  \ici  the  defend- 
ant and  what  effects  of  the  defendant  ho  bath  in  bis  hands,  and  had 


779         CIVIL  PKOCEDUEE— ZXZ77.  Attachment.         Cli.   12 

at  the  time  of  serving  such  attachment,  and  what  effects  or  debts 
of  the  defendant  there  are  in  the  hands  of  any  other,  and  what  per- 
son, to  his  knowledge  and  belief;  and  when  an  attachment  shall 
be  served  on  any  garnishee  in  manner  aforesaid,  it  shall  be  lawful 
upon  his  appearance  and  examination  to  enter  up  j^idgment  and 
award  execution  for  the  plaintiff  against  such  garnishee,  for  all 
sums  of  money  due  to  the  defendant  from  him,  and  for  all  effects 
and  estates  of  any  kind  belonging  to  the  defendant,  in  his  posses- 
sion or  custody,  for  the  use  of  the  plaintiff,  or  so  much  thereof  as 
shall  be  sufficient  to  satisfy  the  debt  and  costs  and  all  charges  inci- 
dent to  levying  the  same ;  and  all  goods  and  effects  whatsoever  in 
the  hands  of  any  garnishee  belonging  to  the  defendant  shall  be  liable 
to  satisfy  the  plaintifl"'s  judgment,  and  shall  be  delivered  to  the 
sheriff  or  other  officer  serving  the  attachment. 
Code,  s.  364;  R.  C,  c.  7,  s.  7;  1777,  c.  115,  s.  28. 

780.  When  garnishee  fails  to  appear.  When  any  garnishee  shall 
be  summoned  as  aforesaid,  and  shall  fail  to  appear  and  discover  on 
oath  as  directed,  the  court,  after  solemnly  calling  the  garnishee, 
shall  enter  a  conditional  judgment  against  him,  and  thereupon  a 
notice  shall  issue  against  him  returnable  to  the  court  having  juris- 
diction, to  show  cause  why  final  judgment  shall  not  be  entered  against 
him ;  and  if,  upon  due  execiTtion  thereof,  such  garnishee  shall  fail 
to  appear  at  the  time  and  place  named  in  the  notice,  and  discover 
on  oath  in  manner  aforesaid,  the  court  shall  confirm  said  judgment 
and  award  execution  for  the  plaintiff's  whole  judgment  and  costs; 
and  if,  \ipon  examination  of  the  garnishee,  it  shall' appear  to  the 
court  that  there  is  any  of  the  defendant's  estate  in  the  hands  of  any 
person  who  has  not  been  summoned,  the  court  shall,  upon  motion  of 
the  plaintiff,  grant  a  judicial  attachment,  to  be  levied  in  the  hands 
of  every  such  person  having  any  of  the  estate  of  the  defendant  in  his 
custody  or  possession,  who  shall  appear  and  answer,  and  shall  be 
liable  as  other  garnishees. 

Code,  s.  365;  R.  C,  e.  7,  s.  8;  1777,  e.  115,  s.  28;   1838,  c.  2. 

781.  Garnishee  denying  property;  issue  tried.  When  any  gar- 
nishee shall  deny  that  he  owes  to,  or  has  in  his  possession  any  prop- 
erty of,  the  defendant,  and  the  plaintiff  shall  on  oath  suggest  to  the 
court  the  contrary ;  or  when  any  garnishee  shall  make  such  a  state- 
ment of  facts  that  the  court  can  not  proceed  to  give  judgment  thereon, 
then  the  court  shall  order  an  issue  to  be  made  up,  which  shall  be 
tried  by  a  jury,  and  on  their  verdict  judgment  shall  be  rendered : 
Provided,  that  in  a  court  of  a  justice  of  the  peace,  he  may  try  such 
issue,  imless  a  jury  be  demanded,  and  then  proceedings  are  to  be 


781         CIVIL  PEOCEDURE— A'A'A'/r.  Attachment.         Cli.   1l' 

conducted,  in  all  respects,  as  in  jnry  trials  before  courts  of  justices 
of  the  peace. 

Code,  s.  366;   R.  C,  c.   7.   s.  9;    1793,  c.  389,  s.   2. 

782.  Property  with  garnishee  valued;  when  excused.  When  a 

garnishee  shall  on  oath  confess  that  he  has  in  his  hands  any  prup- 
ertv  of  the  defendant  of  a  specific  nature,  or  is  indebted  to  such 
defendant  by  any  security  or  assumption  for  the  delivery  of  any 
specific  article,  except  as  hereinafter  excepted,  then  the  court  shall 
immediately  order  a  jury  to  be  impaneled  and  sworn  to  inquire  of 
the  value  of  such  specific  property,  and  the  verdict  of  the  jury 
shall  subject  such  garnishee  to  the  jaayment  of  the  valuation,  or 
so  much  thereof  as  shall  be  sufiicient  to  satisfy  the  debt  or  dam- 
ages, and  costs  to  the  plaintiflF :  Provided,  that  in  a  court  of  a  jus- 
tice of  the  peace,  he  may  try  such  issue,  unless  a  jury  be  demanded, 
and  then  proceedings  are  to  be  conducted  in  all  respects  as  in  jury 
trials  before  courts  of  justices  of  the  peace:  Provided  further,  that 
if  such  garnishee  shall  also  state  in  his  answer  that  said  specific 
property  was  left,  or  deposited,  in  his  possession  by  the  defendant 
as  a  bailment,  or  that  he  hath  tendered  said  specific  articles  agi'ee- 
able  to  contract,  and  that  they  were  refused  by  the  defendant,  and 
that  he  then  was,  and  always  had  been,  ready  to  deliver  the  same ; 
or  that  he  had  such  specific  articles  at  the  time  and  place  specified 
in  such  covenant  or  agreement  ready  to  be  delivered,  and  is  still 
ready  to  deliver  the  same ;  and  such  statement  shall  be  admitted 
by  the  plaintiff  or  fottnd  by  a  jury  or  the  court,  then  in  any  such 
case,  the  garnishee  shall  be  exonerated  by  the  delivery  of  such  specific 
articles  to  the  sheriff,  who  shall  proceed  as  if  the  attachment  had 
been  originally  levied  on  the  property. 

Code,  s.  367;  R.  C,  c.  7,  s.  11;   1793,  c.  389;   1794.  c.  424. 

783.  Conditional  judgment  against  garnishee,  when.  When  any 

garnishee  shall  declare  in  his  answer  that  the  money  or  sjiccific 
article  due  by  him  will  become  payable  or  deliverable  at  a  future 
day,  and  the  same  shall  be  admitted  by  the  plaintiff  or  found  by 
a  jury  or  the  court,  in  such  case  conditional  judgment  shall  be 
entered  against  the  garnishee,  and  the  plaintiff  may  obtain  judg- 
ment against  the  defendant  for  his  demand,  but  shall  not  take  final 
judgment  against  the  garnishee  without  notice  to  show  cause. 
Code,  s.  3G8;  R.  C,  c.  7,  s.  12;   1794,  c.  424,  s.  2. 

784.  Judgment,  how  satisfied.  In  ca.se  judgment  be  entered  Lr 
the  jilaintift'  in  such  action,  the  sheritV  sliall  satisfy  the  same  out  of 
the  i)roperty  attached  by  liiiii,  if  it  shall  be  stifticicnt  for  that  pur- 
pose— 

1.   By  paying  over  to  such  plaintiff  the  ]iroceeds  of  all  property 


784         CIVIL  PROCEDUEE— A'.YA'/r.  AUachmenl.         I'li.   12 

sold  by  him,  and  of  all  debts  or  credits  collected  by  him,  or  sn  mnch 
as  shall  be  necessary  to  satisfy  such  jiidgiuent. 

2.  If  any  balance  remain  diie,  and  an  execution  shall  have  been 
issued  on  such  judgment,  he  shall  proceed  to  sell  iinder  such  exe- 
cution so  much  of  the  attached  property,  real  or  personal,  except 
as  provided  in  subdivision  four  of  this  section,  as  may  be  necessary 
to  satisfy  the  balance,  if  enough  for  that  purpose  shall  remain  in 
his  hands;  and  in  case  of  the  sale  of  any  rights  or  shares  in  the 
stock  of  a  corporation  or  association,  the  sheriff  shall  execute  to  the 
piirchaser  a  certificate  of  sale  thereof,  and  the  purchaser  shall  there- 
upon have  all  the  rights  and  privileges  in  respect  thereto  which  were 
had  by  such  defendant. 

3.  If  any  of  the  attached  property  belonging  to  the  defendant 
shall  have  passed  out  of  the  hands  of  the  sheriff'  without  having 
been  sold  or  converted  into  money,  such  sheriff'  shall  repossess  iiim- 
self  of  the  same,  and  for  that  piirpose,  shall  have 'all  the  authority 
which  he  had  to  seize  the  same  under  the  attachment ;  and  any  per- 
son who  shall  wilfully  conceal  or  withhold  such  property  from  the 
sheriff,  shall  be  liable  to  double  damages  at  the  suit  of  the  party 
injured. 

■i.  Until  the  judgment  against  the  defendant  shall  be  paid,  the 
sheriff  may  proceed  to  collect  the  notes  and  other  evidences  of 
debt,  and  the  debts  that  may  have  been  seized  or  attached,  under 
the  warrant  of  attachment,  and  to  prosecute  any  bond  he  may  have 
taken  in  the  course  of  such  proceedings,  and  apply  the  proceeds 
thereof  to  the  pajmient  of  the  judgment. 

At  the  expiration  of  six  months  from  the  docketing  of  the  judg- 
ment the  coiirt  shall  have  power,  upon  the  petition  of  the  plaintiff, 
accompanied  by  an  affidavit  setting  forth  fully  all  the  proceedings 
which  have  been  had  by  the  sheriff,  since  the  service  of  the  attach- 
ment, the  property  attached,  and  the  disposition  thereof,  also  the 
affidavit  of  the  sheriff  that  he  has  used  due  diligence,  and  endeavored 
to  collect  the  evidences  of  debt  in  his  hands  so  attached,  and  that 
there  remains  uncollected  of  the  same,  any  part  or  portion  thereof, 
to  order  the  sheriff  to  sell  the  same  upon. such  terms  and  in  such 
manner  as  shall  be  deemed  proper.  I^otice  of  siich  apjilication 
shall  be  given  to  the  defendant  or  to  his  attorney,  if  the  defendant 
shall  have  appeared  in  the  action.  In  case  the  summons  has  not 
been  personally  served  on  the  defendant,  the  court  shall  make  sucli 
rule  or  order,  as  to  service  of  notice,  and  time  of  service,  as  shall 
be  deemed  just.  When  the  judgment  and  all  costs  of  the  proceedings 
shall  have  been  paid,  the  sheriff',  upon  reasonable  demand,  slmll 
deliver  over  to  the  defendant  the  residue  of  the  attached  ])roperty, 
or  the  proceeds  thereof. 

Code,  s.  370;  C.  C.  P.,  s.  209. 

Rev.H^ol.  I— 10  20n 


785         CIVIL  PEOCEDURE— XXZ/r.  AHachmenl.         Ch.   12 

785.  Plaintiff  may  sue  on  defendant's  bonds,  when.  The  ac- 
tions herein  authorized  to  be  brouglit  bv  the  slieritl^^  luav  be  prose- 
cuted bj  the  plaintiff,  or  under  his  direction,  upon  the  delivery  by 
him  to  the  sheriff,  of  an  undertaking  executed  by  two  sufficient  sure- 
ties, to  the  effect  that  the  plaintiff"  will  indemnify  the  sheriff  from 
all  damages,  costs  and  expenses  on  account  thereof,  not  exceeding 
two  hundred  and  fifty  dollars  in  any  one  action.  Such  sureties 
shall  in  all  cases,  when  required  by  the  sheriff,  justify  by  making 
an  affidavit  that  each  is  a  freeholder,  and  worth  double  the  amount 
of  the  penalty  of  the  bond,  over  and  above  all  demands,  liabilities 
and  exempti(ms. 

Code,  s.  371;  C.  C.  P.,  s.  210. 

786.  On  defendant's  recovery,  bonds  and  property  delivered  to 

him.  If  the  foreign  corporation,  or  the  absent,  absconding,  or  con- 
cealed defendant,  recover  judgment  against  the  plaintiff  in  such 
action,  any  bond  taken  upon  the  issuing  of  the  warrant  of  attach- 
ment, and  any  bond  taken  by  the  sheriff,  except  such  as  are  men- 
tioned in  the  preceding  section,  all  the  proceeds  of  sales  and  moneys 
collected  by  him,  and  all  the  property  attached  remaining  in  his 
hands,  shall  be  delivered  by  him  to  the  defendant  or  to  his  agent, 
on  request,  and  the  warrant  shall  be  discharged  and  the  property 
released. 

Code,  a.  372;  C.  C.  P.,  s.  211. 

787.  Motion  to  vacate,  or  increase  security.   The  defendant. 

or  a  person  who  has  accjuircd  a  lien  iipon,  nr  interest  in,  his  property 
before  or  after  it  was  attached,  inay  at  any  time  before  the  actual 
application  of  the  attached  property,  or  the  proceeds  thereof,  to  the 
payment  of  a  jiidgiiient  recovered  in  the  action,  apply  to  the  court 
having  jurisdiction  to  vacate  or  modify  the  warrant,  or  to  increase 
the  security  given  by  the  plaintiff,  or  for  one  or  more  of  those  forms 
of  relief,  together  or  in  the  alternative,  as  in  cases  of  other  provis- 
ional remedies. 
Code,  s.  377. 

788.  Exceptions  to  and  justification  of  sureties.  The  sureties 

to  all  undertakings  in  all  ]iroceedings  fur  nttaclnncnt  may  be  excepted 
to,  and  justified  as  prescribed  in  res]iect  to  bail  upon  an  order  of 
arrest. 

Code,  3.  378. 

789.  Interpleader.  When  the  property  attached  shall  be  claimed 
by  any  other  person,  the  clainiant  may  interjilead,  as  ju-ovided  for 
interpleader  in  claim  and  delivery. 

Code,  s.  375;  R.  C,  c.  7,  s.  10;   1793,  c.  389,  s.  3. 


790     CIVIL  PROCEDUKE— JTZXF.   Claim  and  Deliv.     Ch.   12 
XXXV.     Claim  and  Delivery. 

790.  Claim  for  delivery  of  personal  property,  when.  The  plain- 
tiff, in  an  action  to  recover  tlie  possession  of  personal  property,  may, 
at  the  time  of  issuing  the  siuumons,  or  at  any  time  before  answer, 
claim  the  iimnediate  delivery  of  such  property,  as  provided  in  this 
subchapter. 

Code,  s.  321;  C.  C.  P.,  s.  176. 

791.  Affidavit  and  requisites.  Where  a  delivery  is  claimed,  an 
affidavit  must  be  made,  before  the  clerk  of  the  court  in  which  the 
action  is  required  to  be  tried,  or  before  some  person  competent  to 
administer  oaths,  by  the  plaintiff,  or  some  one  in  his  behalf,  show- 
ing— 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed  (partic- 
ularly describing  it),  or  is  lawfully  entitled  to  the  possession  thereof 
by  virtue  of  a  special  property  therein,  the  facts  in  respect  to  which 
shall  be  set  forth.  -      - 

2.  That  the  proj^erty  is  wrongfully  detained  by  the  defendant. 

3.  The  alleged  cause  of  the  detention  thereof,  according  to  his 
best  knowledge,  information  and  belief. 

4.  That  the  same  has  not  been  taken  for  tax,  assessment  or  fine, 
pursuant  to  a  statute;  or  seized  under  an  execution  or  attachment 
against  the  property  of  the  plaintiff;  or,  if  so  seized,  that  it  is,  by 
statute,  exempt  from  such  seizure;  and, 

5.  The  actual  value  of  the  property. 
Code,.s.  322;  C.  C.  P.,  s.  177;  1881,  c.  134. 

Nbte.     For  statute  forbidding  seizure  of  property  taken  for  a  tax,  see  s.  821. 

792.  Order  for  sheriff  to  seize  property  and  deliver  to  plaintiff. 

The  clerk  of  the  court  shall,  tliereupon,  by  an  indorsement  in  writing 
upon  the  affidavit,  require  the  sheriff  of  the  county  where  the  prop- 
erty claimed  may  be,  to  take  the  same  from  the  defendant  and 
deliver  it  to  the  plaintiff" :  Provided,  the  plaintiff  shall  give  the  under- 
taking prescribed  in  the  succeeding  section. 

Code,  s.  323;   C.  C.  P.,  s.   178. 

793.  Plaintiff's  undertaking;  copies  furnished  defendant.  Upon 

the  receipt  of  the  order  from  the  clerk  with  a  written  undertaking 
payable  to  the  defendant  executed  by  one  or  more  sufficient  sureties, 
approved  by  the  sheriff,  to  the  effect  that  they  are  bound  in  double 
the  value  of  the  property,  as  stated  in  the  affidavit  for  the  prosecu- 
tion of  the  action,  for  the  return  of  the  property  to  the  defendant 
with  damages  for  its  deterioration  and  detention  if  return  can  be 
had,  and  if  for  any  cause  return  can  not  be  had,  for  the  payment  to 
him  of  such  sum  as  may  be  recovered  against  the  plaintiff  for  the 


793     CIVIL  PROCEDURE— A'A'A'T-.   Claim  and  Deliv.     Ch.   li' 

vahie  of  the  projserty  at  the  time  of  the  seizure,  with  interest  thereon 
as  damages  for  such  seizure  and  detention,  the  sheriff  shall  forthwith 
take  the  property  described  in  the  affidavit,  if  it  be  in  the  ])OSsession 
of  the  defendant  or  his  agent,  and  retain  it  in  his  custody.  He  shall 
also,  without  delay,  serve  on  the  defendant  a  copy  of  the  affidavit, 
notice,  and  imdertaking,  by  delivering  the  same  to  him  personally, 
if  he  can  be  found,  or  to  his  agent,  from  whose  possession  the  jn'op- 
erty  is  taken ;  or,  if  neither  can  be  found,  by  leaving  them  at  the 
usual  place  of  abode  of  either,  with  some  person  of  suitable  age  and 
discretion. 

Code,  s.  324;   1885,  c.  50;  C.  C.  P.,  s.  179. 

794.  Exceptions  to  undertaking;  liability  of  sheriff.  The  defend- 
ant may,  within  three  days  after  the  service  of  a  copy  of  the  affidavit 
and  undertaking,  give  notice  to  the  sheriff  personally,  or  by  leaving 
a  copy  at  his  office  in  the  county  town  of  the  county,  or,  if  he  have 
no  such  office,  at  the  office  of  the  clerk  of  the  court,  that  he  excepts 
to  the  sufficiency  of  the  sureties.  If  he  fail  to  do  so,  he  shall  be 
deemed  to  have  waived  all  objection  to  them.  When  the  defendant 
excepts,  the  sureties  shall  justify  on  notice,  in  like  manner  as  \ipon 
bail  on  arrest.  And  the  sheriff  shall  be  responsible  for  the  sufficiency 
of  the  sureties,  until  the  objection  to  them  is  either  waived  as  above 
provided,  or  until  they  shall  justify,  or  until  new  sureties  shall  be 
substituted  and  justify.  If  the  defendant  except  to  the  sureties,  bo 
can  not  reclaim  the  property  as  provided  in  the  succeeding  section. 

Code,  s.  325;  C.  C.  P.,  s.  180. 

795.  Defendant's  undertaking  for  replevy.  At  any  time  befon 

the  delivery  of  the  pr(i])ci'ty  to  the  jilaintiff,  the  defendant  may,  if  lu' 
do  not  except  to  the  sureties  of  the  plaintiff,  require  the  return  thereof, 
upon  giving  to  the  sheriff  a  written  undertaking,  payable  to  tiie  plain- 
tiff', executed  by  one  or  more  sufficient  sureties,  to  the  eft'cct  that  they 
are  bound  in  double  the  value  of  the  property,  as  stated  in  the  affi- 
davit of  the  plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  with 
damages  for  its  deterioration  and  its  detention,  if  delivery  can  be 
had,  and  if  such  delivery  can  not  for  any  cause  be  had,  for  the  pay- 
ment to  him  of  such  sura  as  may  be  recovered  against  the  defendant 
for  the  value  of  the  property  at  the  time  of  the  wroTigful  taking  or 
detention,  with  interest  thereon,  as  damages  for  .such  taking  and 
detention.  If  a  return  of  the  property  be  not  so  required,  within 
three  days  after  the  taking  and  .service  of  notice  to  the  defendant,  it 
shall  be  delivered  to  the  plaintiff,  unless  it  shall  be  claimed  by  an 
interpleader. 

Code,  s.  326;   1885,  c.  50.  s.  2 :  C.  C.  P.,  s.  181. 

796.  Justification  of  defendant's  sureties.  The  defendant's  .sure- 
tics,  \i|>on  a  uiilicc  U>  llu'  ^ilaiiilill'  of  mil  less  than  two  or  more  than 

212 


796     CIVIL  PEOCEDURE— XXXT\   Claim  and  Deliv.     Ch.   12 

six  days,  shall  justify  before  the  court,  a  judge  or  justice  of  the  peace, 
in  the  same  manner  as  upon  bail  on  arrest;  upon  such  justification, 
the  sherili"  shall  deliver  the  property  to  the  defendant.  The  sheritt" 
shall  be  responsible  for  the  defendant's  sureties,  until  they  justify, 
or  until  justification  is  completed  or  expressly  waived,  and  may 
retain  the  property  until  that  time;  but  if  they,  or  others  in  tlieir 
place,  fail  to  justify  at  the  time  and  place  appointed,  he  shall  deliver 
the  property  to  the  i^laintiff. 
Code,  s.  327 ;  C.  C.  P.,  s.  182. 

797.  Qualification  and  justification  of  defendant's  sureties, 

how.  The  qualification  of  the  defendant's  sureties,  and  their  justifi- 
cation, shall  be  as  prescribed  in  respect  to  bail  upon  an  order  of 
arrest. 

Code,  s.  328;  C.  C.  P.,  s.  183. 

798.  Property  concealed  in  buildings.   If  the  property,  or  any 

part  thereof,  be  concealed  in  a  building  or  enclosure,  the  sheriff 
shall  publicly  demand  its  delivery.  If  it  be  not  delivered  he 
shall  cause  the  building  or  enclosure  to  be  broken  open,  and  take 
the  property  into  his  possession ;  and,  if  necessary,  he  may  call 
to  his  aid  the  power  of  his  county,  and  if  the  property  be  upon 
the  person  the  sheriff  or  other  officer  may  seize  the  person,  and 
search  for  and  take  the  same. 

Code,  s.  320;   C.  C.  P.,  s.  184. 

799.  How  property  seized  shall  be  kept.  AVhen  the  sheriff  shall 

have  taken  property,  as  in  this  subchapter  jjrovided,  he  shall  keep  it 
in  a  secure  place,  and  deliver  it  to  the  party  entitled  thereto,  \ipon 
receiving  his  lawful  fees  for  taking,  and  his  necessary  expenses  for 
keeping  the  same. 

Code,  s.  330;  C.  C.  P.,  s.  185. 

800.  Property  taken  claimed  by  third  person.  When  the  prop- 
erty taken  by  the  sheriff  shall  be  claimed  by  any  person  other  than 
the  plaintiff'  or  the  defendant  the  claimant  may  interplead  upon 
his  filing  an  affidavit  of  his  title  and  right  to  the  possession  of  the 
property,  stating  the  grounds  of  such  right  and  title ;  and  upon  his 
delivering  to  the  sheriff  an  undertaking  in  an  amount  doiable  the 
value  of  the  property  specified  in  plaintifl"s  affidavit,  for  the  delivery 
of  the  property  to  the  person  entitled  to  the  same,  and  for  the  pay- 
ment of  all  such  costs  and  damages  as  may  be  awarded  against  him ; 
this  undertaking  to  be  executed  by  one  or  more  sufficient  sureties, 
accompanied  by  their  affidavits  that  they  are  each  worth  double  the 
value  of  the  property.  A  copy  of  this  undei'taking  and  accompanying 
affidavits  shall  be  served  by  the  sheriff  on  the  plaintiff  and  defendant 


800     CIVIL  PEOCEDUEE— ZZXF.  Claim  a,id  DeUv.     Ch.  12 

at  least  ten  days  before  the  return  day  of  the  summons  in  said  action, 
when  the  court  trying  the  same  shall  order  a  jury  to  be  impaneled 
to  enquire  in  whom  is  the  right  to  the  property  specified  in  plaintitT's 
complaint;  and  the  finding  of  the  jury  shall  be  conclusive  as  to  the 
parties  then  in  court,  and  the  court  shall  adjudge  accordingly,  unless 
it  is  reversed  upon  appeal:  Provided,  that  in  a  court  of  a  justice 
of  the  peace  he  may  try  such  issue  unless  a  jury  be  demanded,  and 
then  proceedings  are  to  be  conducted  in  all  respects  as  in  jury  trials 
before  courts  of  justices  of  the  peace. 

Code,  s.  331;   C.  C.  P.,  s.  180;   1793,  c.  389,  s.  3;   E.  C.  c.  7,  s.  10. 

801.  When  sheriff  may  deliver  property  to  intervener.  Upon  the 

filing  by  the  claimant  of  the  undertaking  set  forth  in  the  preceding 
section,  the  sherifF  shall  not  be  bound  to  keep  the  property,  or  to 
deliver  it  to  the  plaintiff ;  but  may  deliver  it  to  the  claimant,  unless 
the  plaintiff  shall  execute  and  deliver  to  him  a  similar  \indertaking 
to  that  required  of  claimant;  and  notwithstanding  such  claim,  when 
so  made,  the  sheriff  may  retain  the  property  a  reasonable  time  to 
demand  such  indemnity. 

Code,  s.  332;  R.  C,  c.  7,  s.  10;   1793,  c.  389,  s.  3. 

802.  Sheriff  to  return  undertalclng,  etc.,  in  ten  days.  The  sheriff 

shall  return  the  undertaking,  notice  and  affidavit  with  bis  proceedings 
thereon  to  the  court  in  which  the  action  is  pending  within  ten  days 
after  taking  the  property  mentioned  therein. 

Code,  a.  133;  C.  C.  P.,  s.  187. 

XXXVI.       CONTEOVEESY   WiTKOUT   ACTION. 

803.  How  submitted;  affidavit;  judgment.  Parties  to  a  question 

in  difference  wliich  might  be  the  subject  of  a  civil  action,  may,  with- 
out action,  agree  upon  a  case  containing  the  facts  upon  which  the 
controversy  depends,  and  present  a  submission  of  the  same  to  any 
court  which  would  have  jurisdiction  if  an  action  had  been  brought. 
But  it  must  appear  by  affidavit  that  the  controversy  is  real,  and  the 
proceedings  in  good  faith  to  determine  the  rights  of  the  parties.  The 
judge  shall  thereupon  hear  and  determine  the  case,  and  render  judg- 
ment thereon  as  if  an  action  were  pending. 
Code,  s.  567;  C.  C.  P.,  s.  315. 

804.  Judgment  roll.  Judg-ment  .shall  be  entered  on  the  judgiiicnt 
docket,  as  in  otlier  cases,  but  without  costs  for  any  proceeding  prior 
to  trial.  The  case,  the  submission,  and  a  copy  of  the  judgment,  .shall 
constitute  the  judgment  roll. 

Code,  8.  568;   C.  C.  P.,  s.  316. 


805   CIVIL  PROCEDUKE— ZZZ77.  Con.  without  Ad.    Ch.  12 

805.  Judgment  enforced;  appealed  from.  The  judgment  may  be 

enforced  in  the  same  manner  as  if  it  had  been  rendered  in  an  action, 
and  shall  be  subject  to  appeal  in  like  manner. 
Code,  s.  569;  C.  C.  P.,  a.  317. 

XXXVII.     Injunction. 

806.  Temporary,  issued,  when.  The  writ  of  injunction  as  a  pro- 
visional remedy  is  abolished,  and  a  temporary  injunction  by  order 
is  substituted  therefor.  The  order  may  be  made  by  any  judge  of  a 
superior  court  in  the  following  cases,  and  shall  be  issued  by  the 
clerk  of  the  court  in  which  the  action  is  required  to  be  tried: 

1.  When  it  shall  appear  by  the  complaint  that  the  plaintiff  is 
entitled  to  the  relief  demanded,  and  such  relief,  or  any  part  thereof, 
consists  in  restraining  the  commission,  or  continuance  of  some  act, 
the  commission  or  continuance  of  which,  during  the  litigation,  would 
produce  injury  to  the  plaintiff;  or, 

2.  When,  during  the  litigation,  it  shall  appear  by  affidavit  that 
a  party  thereto  is  doing,  or  threatens,  or  is  about  to  do,  or  is  procur- 
ing or  suffering  some  act  to  be  done  in  violation  of  the  rights  of 
another  party  to  the  litigation  respecting  the  subject  of  the  action, 
and  tending  to  render  the  judgment  ineffectual ;  or, 

3.  When,  during  the  pendency  of  an  action,  it  shall  appear  by 
affidavit  of  any  jserson,  that  the  defendant  threatens,  or  is  about  to 
remove  or  dispose  of  his  property,  with  intent  to  defraud  the  plaintiff. 

Code,  ss.  334,  338;   C.  C.  P.,  ss.  188,  189. 

807.  Solvent  defendant  restrained  from  cutting  trees.   In  an 

application  for  an  injunction  to  enjoin  a  trespass  on  land  it  shall 
not  be  necessary  to  allege  the  insolvency  of  the  defendant  when 
the  trespass  complained  of  is  continuous  in  its  nature,  or  is  the  cut- 
ting or  destruction  of  timber  trees. 

ISSf),  e.  401. 

808.  Timber  lands,  trial  of  title  to.   In  all  actions  to  try  title 

to  timber  lands  and  in  all  actions  for  trespass  thereon  for  ciitting 
timber  trees,  whenever  the  court  shall  find  as  a  fact  that  there  is  a 
bona  fide  contention  on  both  sides  based  ui^on  evidence  constituting 
a  prima  facie  title,  no  order  shall  be  made  pending  such  action,  per- 
mitting either  party  to  cut  said  timber  trees,  except  by  consent,  until 
the  title  to  said  land  or  timber  trees  shall  be  finally  determined  in 
such  action :  Provided,  that  in  all  cases  where  the  title  to  any  timber 
or  tree,  or  the  right  to  cut  and  remove  the  same  during  a  term  of 
years,  is  claimed  by  any  party  to  such  action,  and  the  fee  of  the  soil 
or  other  estate  in  the  land  by  another  or  others,  whether  party  to  the 


808        CIVIL  PROCEDUEE— A'A'A'17/.  Injiuu-llon.        Cli.   1l> 

action  or  not,  the  time  witluu  which  sucli  timber  or  trees  may  be  cut 
or  removed  by  the  party  claiming  the  same,  and  all  other  rights 
acquired  in  connection  therewith,  shall  not  be  affected  or  abridged, 
but  the  running  of  the  term  shall  be  susjiended  during  the  pendency 
of  such  action. 

1901,  c.  660,  s.  1 ;   1903,  c.  642. 

809.  When  timber  may  be  cut.  Whenever  in  any  such  action 
the  judge  shall  find  as  a  fact  that  the  contention  of  either  f)arty 
thereto  is  not  in  good  faith  and  is  not  based  \ipon  evidence  consti- 
tuting a  f)rima  facie  title,  then  upon  motion  of  the  other  party 
thereto,  who  may  satisfy  the  court  of  the  bona  fides  of  his  contention 
and  who  may  produce  evidence  showing  a  prima  facie  title,  the 
court  may  allow  such  party  to  cut  the  said  timber  trees  by  giving 
bond  as  now  required  by  law.  Nothing  in  this  section  shall  affect 
the  right  of  appeal  as  now  allowed  by  law,  and  whenever  any  party 
to  such  action  may  be  enjoined,  a  sufficient  bond  shall  be  required 
to  cover  all  damages  that  may  accrue  to  the  party  enjoined  by  rea- 
son of  the  injunction  as  now  required  .by  law. 

1901,  e.  606,  ss.  2.  3. 

810.  Time  of  issuing;  copy  of  affidavit  served.  The  injunetidu 

■may  be  granted  at  the  time  of  commencing  the  action,  or  at  any  tinii' 
afterwards,  before  judgment,  upon  its  appearing  satisfactorily  lo 
the  judge,  by  the  affidavit  of  the  plaintiff,  or  of  any  other  ])erson. 
that  suificient  gTounds  exist  therefor.  A  copy  of  the  affidavit  must 
be  served  with  the  injunction. 
Code,  s.  339;  C.  C.  P.,  s.  190. 

811.  Not  issued  for  more  than  twenty  days  without  notice:  con- 
tinues until  dissolved.  Xo  restraining  i.nier,  or  (inlcr  to  stay  pro- 
ccciliiigs  for  a  longer  time  than  twenty  days,  shall  be  granted  by  a 
jtidge  out  of  court,  except  upon  due  notice  to  tiie  adverse  ])arty;  but 
the  said  order  shall  continue  and  remain  in  force  until  vacated  after 
notice,  to  be  fixed  by  the  court,  of  not  less  than  two  nor  more  tlnin  ten 
days. 

Code,  s.  346;  C.  C.  P.,  s.  345;   1905.  c.  20. 

812.  Issued  after  answer,  only  on  notice.   An  injunction  shall 

not  be  allowed  after  the  defendiint  shall  June  answered,  unless  n])on 
notice,  or  upon  an  order  to  sliow  cause ;  but  in  such  ca.se  the  defend- 
ant may  lie  restrained  until  the  decision  of  the  jmlge  granting  or 
refusing  tiie  injunclion. 


Coflc,   s.  .340;    C.   C.    P.,  s.    191. 
Note.     For  statute  reguUitiii^f  iiofi<'c. 


210 


M;3        civil  PROCEDURE— A'A'AT/Z.  7Hiw.nc//on.        Ch.   12 

813.  Order  to  show  cause;  restraint  in  meantime.  If  the  judge 

deem  it  pruper  that  the  defendant,  ov  au}-  of  several  defendauts, 
sliould  be  heard  before  grautiug  the  injimction,  an  order  may  be 
made  requiring  cause  to  be  shown,  at  a  specified  time  and  place,  why 
the  injunction  should  not  be  granted ;  and  tlie  defendant  may,  in 
the  meantime,  be  restrained. 

Code,  s.  342;   C.  C.  P.,  s.   193. 

814.  What  judges  have  jurisdiction.    The  judges  of  the  superior 

court  shall  have  jurisdiction  to  grant  injunctions  and  issue  restraining 
orders  in  all  civil  actions  and  proceedings  which  are  authorized  by 
law:  Provided,  that  a  jvidge  holding  a  sijecial  term  in  any  county 
may  grant  an  injunction,  or  issue  a  restraining  order,  returnable 
before  himself,  in  any  case  which  he  may  have  jurisdiction  to  hear 
and  determine  under  the  commission  issued  to  him,  and  the  same  shall 
be  returnable  as  directed  by  the  judge  in  the  order. 
Code,  s.  335;    1876-7,  c.  223,  ss.   1,  2;    1879,  c.  63,  ss.   1,  3. 

815.  Before  what  judge  returnable.  All  restraining  orders  and 
injvmctions  gTanted  by  any  of  the  judges  of  the  superior  court,  except 
a  judge  holding  a  special  term  in  any  county,  shall  be  made  return- 
able before  the  resident  judge  of  the  district,  or  the  judge  assigoied 
to  the  district,  or  holding  b}'  exchange  the  courts  of  the  district  where 
the  civil  action  or  sjDecial  proceeding  is  depending,  within  twenty 
days  from  date  of  order.  And  if  the  judge  before  whom  the  same  is 
returned  shall,  from  sickness,  inability,  or  from  any  cause,  fail  to 
hear  said  motion  and  application,  or  to  continue  the  same  to  some 
other  time  and  place,  then  it  shall  be  competent  for  any  judge  resident 
in  some  adjoining  district,  or  a  judge  assigned  to  hold  the  court  of 
some  adjoining  district,  or  the  judge  holding  by  exchange  the  court 
of  some  adjoining  district,  to  hear  and  determine  the  said  motion 
and  apjilication,  after  giving  ten  days'  notice  to  the  parties  interested 
in  the  application  or  motion,  upon  its  being  satisfactorily  shown  to 
him  by  aifldavit  or  otherwise  that  the  judge  before  whom  the  same 
vvas  returnable  failed  to  act  upon  the  same,  or  to  continue  the  same 
to  some  other  time  and  place.  The  effect  of  such  removal  shall  be 
to  continue  in  force  the  motion  and  application  theretofore  granted, 
till  the  same  can  be  heard  and  determined  by  the  judge  having 
jurisdiction  of  the  same. 

Code,  s.  336;  1876,  e.  223,  s.  2;   1879.  c.  63,  ss.  2,  3;   1881,  c.  51. 

816.  Stipulation  as  to  judge  to  hear.  By  a  stipulation  in  writ- 
ing, signed  by  all  the  parties  to  an  application  for  an  injimction 
order,  or  their  attorney,  to  the  effect  that  the  matter  may  be  heard 
before  any  judge,  to  be  designated  in  such  stipulation,  the  judge 


816        CIVIL  PrLOCEDURE— A'A'A'17/.  Injuncfhn.         Ch.   12 

before  wlioin  the  restraining  order  is  returnable  by  law,  or  who  is 
by  law  the  judge  to  hear  the  motion  for  an  injunction  order,  shall, 
upon  receijDt  of  such  stipulation  forward  the  same  and  all  the  papers 
to  the  judge  designated  in  the  stipulation,  whose  duty  it  shall  there- 
upon be  to  hear  and  decide  the  matter,  and  return  all  the  papers  to 
the  court  out  of  which  they  issued,  the  necessary  postage  or  expressage 
money  to  be  furnislied  to  the  judge. 
Code,  s.  337;   1883,  c.  33. 

817.  Undertaking,  Upon  granting  a  restraining  order  or  an  order 
for  an  injunction,  the  judge  shall  require  as  a  condition  precedent 
to  the  issuing  thereof  that  the  clerk  shall  take  from  the  plaintiff  a 
written  undertaking,  with  sufficient  sureties,  to  be  justified  before, 
and  approved  by,  the  said  clerk,  or  by  the  judge,  in  an  amount  to  be 
fixed  by  the  judge,  to  the  effect  that  the  plaintiff  will  pay  to  the 
party  enjoined  such  damages,  not  exceeding  an  amount  to  be  specified, 
as  he  may  sustain  by  reason  of  the  injunction,  if  the  court  shall 
finally  decide  that  the  plaintiff  was  not  entitled  thereto. 

Code,  s.  341;   C.  C.  P.,  s.  192. 

818.  Damages.  A  judgment  dissolving  an  injunction  shall  carry 
with  it  judgment  for  damages  against  the  party  procuring  the  injunc- 
tion and  the  sureties  on  his  undertaking  without  the  requirement  of 
malice  or  want  of  probable  cause  in  procuring  the  injunction,  which 
damages  may  be  ascertained  by  a  reference  or  otherwise,  as  the 
judge  shall  direct,  and  the  decision  of  the  court  thereupon  shall  be 
conclusive  as  to  the  amount  of  damages  upon  all  the  persons  who 
have  an  interest  in  the  imdertaking. 

Code,  s.  341;   1893,  c.  251. 

819.  Issued  without  notice,  vacated  when;  verified  answer  an 

affidavit.  If  the  injunction  be  granted  witliout  notice,  the  defendant, 
at  any  time  before  the  trial,  may  apply,  upon  notice  to  be  fixed  by  the 
court  of  not  less  than  two  nor  more  than  ten  days,  to  the  judge  having 
jurisdiction  thereof,  to  vacate  or  modify  the  same,  if  he  is  within  the 
district  or  in  an  adjoining  district,  but  if  out  of  the  district  and  not  in 
an  adjoining  district,  then  before  any  judge  at  the  time  being  in  the 
district,  and  if  tliere  be  no  judge  in  the  district,  before  any  judge  in 
an  adjoining  district.  The  application  may  be  made  upon  the  com- 
plaint and  the  affidavits  on  whicli  the  injunction  was  granted,  or  upon 
the  affidavits  on  tlie  part  of  the  defendant,  with  or  without  answer; 
but  if  no  STU'li  application  bo  made,  the  injunction  shall  continue,  and 
be  in  force  until  such  ap])]ication  sliall  be  made  and  determined  by 
the  judge,  and  a  verified  answer  has  the  effect  only  of  an  affidavit. 

Code,  s.  344;  C.  C.  P..  s.  105;   1005,  c.  26.  . 


Si!0        CIVIL  PEOCEDUEE— ZZZF/Z.  Injunction.         Ch.   12 

820.  Opposing  affidavits.  If  the  application  be  made  upon  affi- 
davits on  the  part  of  the  defendant,  but  not  otherwise,  the  plaintiif 
may  oppose  the  same  by  affidavits  or  other  proof,  in  addition  to  those 
on  which  the  injunction  was  granted. 

Code,  s.  345;   C.  C.   P.,  s.   196. 

821.  Wlien  granted  to  restrain  collection  of  taxes.  Xo  injunc- 

lion  shall  be  granted  by  any  court  or  judge  to  restrain  the  collection 
(if  any  tax  or  any  part  thereof,  nor  to  restrain  the  sale  of  any  property 
for  the  nonpayment  of  any  such  tax,  except  such  tax  or  the  part 
thereof  enjoined  be  levied  or  assessed  for  an  illegal  or  unauthorized 
purpose  or  be  illegal  or  invalid,  or  the  assessment  be  illegal  or  invalid. 
1901,  c.  558,  s.  30;  1899,  e.  15,  s.  78;   1887,  c.  137,  s.  84. 


Note.     For  action  to  recover  illegal  taxes  paid,  see  s.  2855. 

For  injunction  pending  appeal  from  Corporation  Commission,  see  s.  1080. 

XXXVIII.     Mandamus. 

822.  Begun  by  summons  and  verified  complaint.  All  applica- 
tions for  writs  of  mandamus  shall  be  made  by  summons  and  com- 
plaint, and  the  complaint  shall  be  duly  verified. 

Code,  s.  G22;    1871-2,   c.   75. 

823.  Money  demand  enforced  at  term.  In  all  such  applications, 

when  the  jjlaintiff  seeks  to  enforce  a  money  demand,  the  summons, 
pleadings  and  practice  shall  be  the  same  as  is  prescribed  for  civil 
actions. 

Code,  s.  623;  1871-2,  c.  75,  s.  2. 

824.  Other  actions  returnable  in  vacation;  issues  of  fact.  When 

the  plaintiff  yeeks  relief  otlior  than  the  enforeeinent  of  a  money 
demand,  the  smumons  shall  be  made  returnable  before  a  judge  of  the 
■superior  court  at  chambers,  or  in  term  at  a  day  specified  in  the  sum- 
mons, not  less  than  ten  days  after  the  service  of  the  summons  and 
complaint  upon  the  defendant;  at  which  time  the  court,  except  for 
good  cause  shown,  shall  proceed  to  hear  and  determine  the  action,  both 
as  to  law  and  fact:  Provided,  that  when  an  issue  of  fact  is  raised 
by  the  pleading,  it  shall  be  the  duty  of  the  court,  u)wn  the  motion 
of  either  party,  to  continue  the  action  until  said  issue  of  fact  can 
be  decided  by  a  jury  at  the  next  regular  term  of  the  court. 
Code,  s.  623;    1871-2.  e.  75,  s.  3. 

XXXIX.       XUISANCE. 

825.  How  remediable.  Injuries  remediable  by  the  old  writ  of 
nuisance  are  subjects  of  action  as  other  injuries;  and  in  such  action 

219 


825  CIVIL  PKOCEDURE— A'XATA'.  Nuisance.  Ch.  li' 

there  may  be  judgineiit  for  damages,  or  for  the  removal  of  the  nui- 
sance, or  for  both. 

Code,  s.  630;  C.  C.  P.,  s.  387. 

XL.     Quo  "Warranto. 

826.  Writs  of  sci.  fa.  and  quo  warranto  abolished.  The  writ  of 

scire  facias,  the  writ  of  qno  warranto,  and  proceedings  by  informa- 
tion in  the  nature  of  quo  warranto,  arc  abolished ;  and  the  remedies 
obtainable  in  those  forms  may  be  obtained  by  civil  actions  under  this 
subchapter. 

Code,  s.  603;   C.  C.  P.,  s.  362;   R.  C,  c.  26,  ss.  5,  25. 

827.  Action  by  attorney  general  upon  usurpation  or  forfeiture 

of  office.  An  action  may  be  brought  by  the  attorney  general  in  the 
name  of  the  state,  upon  his  own  information,  or  upon  the  complaint 
of  any  private  party,  against  the  parties  offending,  in  the  following 
cases : 

1.  When  any  person  shall  usurp,  intrude  into,  or  unlawfully  hold 
or  exercise  any  public  office,  civil  or  military,  or  any  franchise  within 
this  state,  or  any  office  in  a  corporation  created  by  the  authority  of 
this  state;  or, 

2.  When  any  public  officer,  civil  or  military,  shall  have  done  or 
suffered  an  act  which,  by  law,  shall  make  a  forfeittire  of  his  office. 

Code,  s.  607;  C.  C.  P.,  s.  366. 

Note.  For  right  of  attorney  general  to  institute  actions  for  the  forfeiture  of 
corporate  charters  and  the  like,  see  s.  1198. 

For  right  to  institute  action  to  forfeit  grants,  see  s.  1750. 

828.  Leave  granted  by  attorney  general  to  private  person, 

when.  When  application  shall  be  made  to  the  attorney  general  by 
a  ]irivate  relator  to  bring  such  an  action,  he  shall  grant  the  leave 
that  the  same  may  be  brought  in  the  name  of  the  state,  upon  the 
relation  of  such  applicant,  iipou  such  applicant  tendering  to  the 
attorney  general  satisfactory  security  to  indenmify  the  state  against 
all  costs  and  expenses  which  may  accrue  in  consequence  of  the  bring- 
ing of  such  action. 

Code,  s.  608;    1874-5,  c.   76;    ISSl,  c.  3.30. 

Note,     For  costs  in  sucli  arlion,  sec  s.  1261. 

For  leave  in  actions  r<'hiting  to  corporations,  sec  s,  11!)6. 

829.  Solvent  sureties  required.  The  attorney  general,  before 
giMiiting  leax'e  to  a  ])rivMt('  relator  to  bring  a  suit  to  try  the  title  to 
an  otliee,  may  I'cquire  two  sureties  to  tiie  Iwmd  required  by  law 
to  l)e  filed  to  indenmify  the  state  against  costs  and  expen.ses,  and 
require  such  sureties  to  justify,  and  may  require  such  ]iroof  and 
evidence  of  the  solvency  of  said  sureties  as  may  be  satisfactory  to 
him. 

11)01,  e.  595,  s.  2, 

22(1 


s;;o  CIVIL   PROCEDURE— XL.   Quo    Wairanlo.  Ch.   12 

830.  Leave  withdrawn,   action   dismissed,   bond   insufficient. 

^\'llen  the  attorney  general  shall  have  "ranted  leave  to  a  ]iri\ate  rela- 
tor to  bring  an  action  in  the  name  of  the  state  to  try  the  title  to  an 

•  iliice,  and  it  shall  afterwards  be  shown  to  the  satisfaction  of  the 
attorney  general  that  the  bond  filed  by  such  private  relator  is  insufR- 
i-ient,  or  that  the  securities  thereto  are  insolvent,  the  attorney  general 
may  recall  and  revoke  such  leave  theretofore  granted,  and  upon  a 

•  ertiiicate  of  the  withdrawal  and  revocation  by  the  attorney  general 
111  the  clerk  of  the  court  of  the  county  where  any  such  action  is 
I  lending,  it  shall  be  the  duty  of  the  judge  presiding,  upon  motion 
lit'  the  defendant,  to  dismiss  the  action. 

1891,  c.  59.5. 

831.  Arrest  and  bail  of  defendant  usurping  office.    Whenever 

such  action  shall  be  brought  against  a  person  for  usurping  an  office, 
the  attorney  general,  in  addition  to  the  statement  of  the  cause  of 
action,  may  also  set  forth  in  the  complaint  the  name  of  the  person 
rightfully  entitled  to  the  office,  with  a  statement  of  his  right  thereto ; 
and  in  such  case,  upon  proof  by  affidavit  that  the  defendant  has 
received  fees  or  emoluments  belonging  to  the  office,  and  by  means  of 
his  usurpation  thereof,  an  order  shall  be  gTanted  by  a  judge  of  the' 
superior  court  for  the  arrest  of  such  defendant,  and  holding  him  to 
bail;  and  thereupon  he  shall  be  arrested  and  held  to  bail  in  the  man- 
ner, and  with  the  same  effect,  and  subject  to  the  same  rights  and 
liabilities,  as  in  other  civil  actions  where  the  defendant  is  subject  to 
arrest. 

Code,s.   609;   C.   C.   P.,  s.   369:    18S.3,  c.   102. 

832.  Claim  of  several  persons  to  office  tried  in  one  action. 

Where  several  persons  claim  to  be  entitled  to  the  same  office  or  fran- 
chise, one  action  miay  be  brought  against  all  such  persons,  in  order 
to  try  their  respective  rights  to  such  office  or  franchise. 
Code,  s.  614;  C.  C.  P.,  s.  374. 

833.  Trials  expedited.  All  actions  to  try  the  title  or  right  to  any 
office,  state,  _county  or  municipal,  shall  stand  for  trial  at  the  return 
term  of  the  summons,  if  a  copy  of  the  complaint  shall  have  been 
served  with  the  sununons,  at  least  thirty  days  before  the  return  day 
thereof;  and  it  shall  be  the  duty  of  the  judges  to  expedite  the  trial 
of  such  actions,  and  to  give  them  precedence  over  all  other  actions, 
civil  or  criminal.  But  it  shall  be  unlawful  to  appropriate  any  piiblic 
funds  to  the  payment  of  counsel  fees  in  any  such  action. 

Code,  s.  616;    1901,  c.  42;    1874-.5,  c.   173. 

834.  Action  brought  within  ninety  days  after  induction  into 

office.    All  actiiins  liriniglil    by  a   ])rivate  rchitdv,  ujiiiu   the  leave  nf 


83-i  CIVIL  PROCEDUEE— XL.   Quo  ^Varranto.  Ch.   12 

the  attorney  general,  to  try  the  title  to  an  office  shall  be  brought, 
and  a  copy  of  the  complaint  served  on  the  defendant,  within  ninety 
days  after  the  induction  of  the  defendant  into  the  office  to  which  the 
title  is  sought  to  be  tried ;  and  when  it  shall  appear  from  the  papers 
in  the  cause,  or  otherwise  be  shown  to  the  satisfaction  of  the  court 
that  the  sunuuons  and  complaint  have  not  been  served  within  ninety 
days,  it  shall  be  the  duty  of  the  judge  upon  motion  of  defendant 
to  dismiss  the  action  at  any  time  before  the  trial  at  the  cost  of  the 
plaintiff. 

1901,  c.  519;    1903,  c.  556. 

835.  Defendant's  undertaking  before  answer.  Before  the  de- 
fendant is  pennitted  to  answer  or  demur  to  the  complaint  he  shall 
execute  and  file  in  the  superior  court  clerk's  office  of  the  county 
wherein  the  suit  is  pending,  an  undertaking,  with  good  and  suffi- 
cient surety,  in  the  sum  of  two  hundred  dollars,  wliich  nuiy  be 
increased  from  time  to  time,  in  the  discretion  of  the  judge,  to  be 
void  upon  condition  that  the  defendant  shall  pay  to  the  plaintiff  all 
such  costs  and  damages,  inchiding  damages  for  the  loss  of  such  fees 
and  emoluments  as  may  or  ought  to  have  come  into  the  hands  of  the 
defendant,  as  the  plaintiff  may  recover. 

1895,  c.   105. 

836.  Possession  of  office  not  disturbed  pending  fiearing.  In  any 

civil  action  pending  in  any  of  the  courts  of  this  state  wherein  the 
title  to  any  office  is  involved,  the  defendant  being  in  the  ]iossession 
of  said  office  and  discharging  the  duties  thereof,  shall  continue  therein 
pending  such  action,  and  no  judge  shall  make  any  restraining  order 
interfering  with  or  enjoining  such  officer  in  the  premises ;  and  such 
officer  shall,  notwithstanding  any  such  order,  continue  to  exercise 
the  duties  of  such  office  pending  such  litigation,  and  receive  the 
emoluments  thereof. 
1899,  c.  33. 

837.  Judgment  by  default  and  inquiry  for  failure  of  defendant 

to  give  bond.  At  any  time  after  a  duly  verified  complaint  is  filed 
alleging  facts  sufficient  to  entitle  plaintiff  to  the  office,  whether  such 
complaint  is  filed  at  the  beginning  of  the  action  or  later,  the  plain- 
tiff may,  upon  ten  days'  notice  to  the  defendant  or  his  attorney  of 
record,  move  before  the  resident  judge  or  the  judge  riding  the  district 
at  chambers,  to  require  the  defendant  to  give  said  undertaking;  and 
it  .shall  be  the  duty  of  the  judge  to  require  the  defendant  to  give  such 
undertaking  within  ten  days,  and  if  the  undertaking  shall  not  be  so 
given,  the  judge  shall  render  judgment  in  favor  of  plaintiff  and 
against  defendant  for  the  i-ecovcry  of  the  office  and  the  costs,  and  a 


837  CIVIL  PKOCEDURE— XL.   Quo  Warranio.  Ch.   12 

judgment  by  default  and  inquiry  to  be  executed  at  term  fur  damages, 
including  loss  of  fees  and  salary.  Upon  the  filing  of  said  judgment 
for  the  recovery  of  such  office  with  the  clerk,  it  shall  be  the  duty 
of  the  clerk  to  issue  and  the  sheriff  to  serve  the  necessary  process  to 
put  plaintifl^  into  possession  of  the  office.  In  case  defendant  shall 
give  the  undertaking,  the  court,  if  judgment  is  rendered  for  plain- 
tiff, shall  render  judgment  against  the  defendant  and  his  sureties 
for  costs  and  damages,  including  loss  of  fees  and  salary :  Provided, 
that  nothing  herein  shall  prevent  the  judge's  extending,  for  cause, 
the  time  in  which  to  give  the  undertaking. 
1899,  c.  49;   1895,  e.  105,  s.  2. 

838.  Service  of  summons  and  complaint.    The  service  of  the 

summons  and  complaint  as  hereinbefore  provided  may  be  made  by 
leaving  a  copy  thereof  at  the  last  residence  or  business  office  of  the 
defendant  or  defendants,  and  the  same  shall  be  held  and  deemed  a 
legal  service  of  the  said  summons  and  complaint. 

1899,  c.   126. 

839.  Judgment  in  such  actions.  In  every  such  case  judgment 
shall  be  rendered  upon  the  right  of  the  defendant,  and  also  upon  the 
right  of  the  party  so  alleged  to  be  entitled,  or  only  upon  the  right  of 
the  defendant,  as  justice  shall  require. 

Code,  s.  610;  C.  C.  P.,  s.  370. 

840.  Judgment  for  usurping  office  or  franchise;  fine.  When  the 

defendant,  whether  a  natural  person  or  a  corporation,  against  whom 
such  action  shall  have  been  brought,  shall  be  adjudged  giiilty  of 
usurping  or  intruding  into,  or  unlawfully  holding  or  exercising  any 
office,  franchise  or  privilege,  judgment  shall  be  rendered  that  such 
defendant  be  excluded  from  such  office,  franchise  or  privilege,  and 
also  that  the  plaintiff  recover  costs  against  such  defendant.  The 
court  may  also,  in  its  discretion,  fine  such  defendant  a  sum  not 
exceeding  two  thousand  dollars. 

Code,  s.  615;  R.  C,  c.  95;  C.  C.  P.,  s.  375;  Const.,  Art.  IX,  s.  5. 

841.  Mandamus  to  aid  relator,  when.      Whenever  in  any  civil 

action  brought  to  try  the  title  or  right  to  hold  any  office,  the  judg- 
ment of  the  court  shall  be  in  favor  of  the  relator  in  such  action,  it 
shall  be  the  duty  of  the  court  to  issue  a  writ  of  mandamus  or  such 
other  process  as  may  be  necessary  and  proper  to  carry  such  judg- 
ment into  effect,  and  to  induct  the  party  so  entitled  into  such  office. 
1885,  e.  400,  .s.   1. 

842.  On  appeal,  occupant  of  office  to  give  bond  for  fees.  Xo 

appeal  by  the  defendant  from  the  judgment  of  the  superior  court  in 


842  CIVIL  PEOCEDURE— A'L.   Quo  Wananio.  Cli.   12 

such  action  to  the  supreme  court  shall  stay  the  execution  of  the  judg- 
ment, unless  a  justitied  undertaking  be  executed  on  the  part  of  the 
appellant  by  one  or  more  sureties,  in  a  sum  to  be  fixed  by  the  court, 
conditioned  that  the  appellant  will  pay  to  the  party  entitled  to  the 
same  the  salary,  fees,  emoluments  and  all  moneys  whatsoever  received 
by  such  ajipellant  by  virtue  or  under  color  of  his  said  otfice:  Pro- 
vided, that  in  no  event  shall  said  judgment  be  executed  pending  said 
appeal,  unless  a  justified  undertaking  be  executed  on  the  part  of  the 
appellee  by  one  or  more  persons  in  a  sum  to  be  fixed  by  the  court, 
conditioned  that  the  appellee  will  pay  to  the  party  entitled  to  the  same 
the  salary,  fees,  emoluments  and  all  moneys  whatsoever  received  by 
the  appellee  by  virtue  or  under  color  of  his  said  office  during  his 
occupancy  thereof. 

ISSo.  c.  400,  s.  i. 

843.  Relator  inducted  into  office,  when.    If  the  judgnnent  be 

rendered  upon  the  right  of  the  person  so  alleged  to  be  entitled,  and 
the  same  be  in  favor  of  such  person,  he  shall  be  entitled,  after  taking 
the  oath  of  office,  and  executing  such  official  bond  as  may  be  required 
by  law,  to  take  upon  himself  the  execution  of  the  office ;  and  it  shall 
be  his  duty,  immediatelj-  thereafter,  to  demand  of  the  defendant  in 
the  action  all  the  books  and  papers  in  his  custody,  or  within  his 
power,  belonging  to  the  office  from  which  he  shall  have  been  excluded. 
Code,  s.  611;  C.  C.  P.,  s.  371. 

844.  Damages  by  usurpation  recovered.  If  judgment  be  ren- 
dered upciU  tiic  right  of  the  person  S(i  alleged  to  be  entitled,  in  favor 
of  such  person,  he  may  recover  by  action  the  damages  which  ho 
shall  have  sustained  by  reason  of  the  usui'pation  by  the  defendant  nf 
the  office  from  which  such  defendant  has  been  exchided. 

Code,  s.  613;  C.  C.  P.,  s.  373. 

845.  Action  to  recover  forfeited  property  for  state.    Whenever 

any  |iroperty,  real  or  persmuil,  shall  be  fdrfeited  \o  flie  state,  or  to 
any  officer  for  its  use,  an  action  for  the  recovery  of  such  property, 
alleging  the  grounds  of  the  forfeiture,  may  be  brought  by  the  proper 
officer  in  any  superior  court. 
Code,  s.  621;   C.  C.  P.,  s.  381. 

XLI.     Receivers. 

846.  What  judge  appoints.  Any  judge  of  the  sujierior  court 
lia\ing  authority  to  gi'anl.  rc.-lraining  orders  and  injuncticuis  shall 
have  the  like  jurisdiction  in  a])])i>inting  receivers,  and  all  motions 
to  shf)W  cause  shall  be  retnrnalile  as  is  provided  for  injunctions. 

Code.  s.  370;  C.  C.  P.,  s.  21.'>;    I870-7,  o,  223;   1870,  p.  63;   1881,  c.  51. 
224 


stT  CIVIL  PROCEDURE— ZLZ.  Receivers.  Ch.   12 

847.  In  what  cases  appointed.   A  receiver  may  be  ap])ointed — 

1.  Before  jiulgnieiit,  on  the  application  of  either  party,  when  he 
establishes  an  apparent  right  to  property  which  is  the  subject  of  the 
action,  and  which  is  in  the  possession  of  an  adverse  party,  and  the 
jirciperty  or  its  rents  and  profits  are  in  danger  of  being  lost,  or 
materially  injured  or  impaired  ;  except  in  cases  where  judgment  upon 
failure  to  answer  may  be  had  on  application  to  the  court. 

2.  After  judgment,  to  carry  the  judgment  into  effect. 

3.  After  judgment,  to  dispose  of  the  j^roperty  according  to  the 
judgment,  or  to  preserve  it  during  the  pendency  of  an  appeal,  or 
when  an  execution  has  been  returned  unsatisfied,  and  the  judgment 
debtor  refuses  to  apply  his  property  in  satisfaction  of  the  judgment. 

4.  In  cases  provided  in  chapter  entitled  Corporations  and  sub- 
chapter thereof  entitled  Receivers;  and  in  like  cases,  of  the  property 
within  this  state  of  foreign  corporations. 

The  subchapter  entitled  Receivers,  in  the  chapter  entitled  Corpor- 
ations, shall  be  applicable,  as  near  as  may  be,  to  receivers  appointed 
hereunder. 

Code,  s.  379;  C.  C.  P.,  s.  215;  1876-7,  c.  223;   1879,  c.  63;  1881,  c.  51. 
Note.     For  appointment  of  receivers  in  proceedings  supplemental  to  execution, 
see  subchapter  infra  Supplemental  Proceedings,  s.  679. 

848.  Appointment  refused,  bond  being  given,  when,    in  all  eases 

where  there  is  an  application  for  the  ap])iiintment  of  a  receiver,  upon 
the  ground  that  the  property  or  its  rents  and  profits  are  in  danger  of 
being  lost,  or  materially  injured  or  impaired,  or  that  a  corporation 
defendant  is  insolvent  or  in  inuninent  danger  of  insolvency,  and  the 
subject  of  the  action  is  the  recovery  of  a  money  demand,  the  judge 
before  whom  such  application  is  made  or  pending  shall  have  the  dis- 
cretionary power  to  refuse  the  appointment  of  a  receiver,  if  the  party 
against  whom  such  relief  is  asked,  whether  a  person,  partnership  or 
corporation,  shall  tender  to  the  court  an  undertaking  payable  to  the 
adverse  party  in  an  amount  double  the  sum  demanded  by  the  plain- 
tiff, with  at  least  two  sufficient  sureties  and  duly  justified  according 
to  law,  conditioned  for  the  payment  of  such  amount  as  may  be  recov- 
ered in  such  action,  and  siuumary  judgment  may  be  taken  ujjou  said 
undertaking.  In  the  progTess  of  the  action  the  court  shall  have  power 
in  its  discretion  to  require  additional  sureties  on  such  undertaking. 
1885,  c.  94. 

849.  Receiver's  bond.  A  receiver  appointed  in  an  action  or 
special  proceeding  must,  before  entering  upon  his  duties,  execute 
and  file  with  the  clerk  of  the  court  wherein  the  action  is  pending,  an 
undertaking  payable  to  the  adverse  ]iarty  with  at  least  two  sutficient 
sureties  in  a  penalty  fixed  by  the  judge  making  the  appointment, 
conditioned  for  the  faithful  discharge  of  his  duties  as  roceiver.     And 

Rev.  Vol.  I— 11  225 


849  CIVIL  PEOCEDURE— A'L/.  Eeceivers.  C'li.   li' 

the  judge  having  jurisdiction  thereof  may  at  any  time  remove  tlie 
receiver,  or  direct  him  to  give  a  new  undertaking,  with  new  siiretic?-. 
with  the  like  condition.  But  this  section  does  not  apply  to  a  case 
where  special  provision  is  made  by  law  for  the  security  to  be  given 
by  a  receiver,  nor  for  increasing  the  same,  nor  for  removing  a 
receiver. 

Code,  s.  3S3. 

Note.     For  giving  bond  in  surety  companies,  see  ss.  272,  273. 

XLII.     Tkust  Fdxds  Summarily  Pkotected. 

850.  Trust  funds  ordered  paid  into  court.  AVhcn  it  is  admitted 

by  the  pleading  or  examination  of  a  party  that  he  has  in  his  posses- 
sion, or  under  his  control,  any  monej'  or  other  thing  capable  of 
delivery,  which,  being  the  subject  of  the  litigation,  is  held  by  him  as 
trustee  for  another  party,  or  which  belongs  or  is  dtie  to  another 
party,  the  judge  may  order  the  same  to  be  deposited  in  court,  or 
delivered  to  such  party,  with  or  without  security,  subject  to  the  fur- 
ther direction  of  the  judge. 
Code,  s.  380;  C.  C.  P.,  s.  215. 

851.  Trust  funds,  etc.,  ordered  seized  by  sheriff,  when.  When- 
ever, in  the  exercise  of  his  authority,  a  judge  shall  have  ordered  the 
deposit,  delivery  or  conveyance  of  money  or  other  property,  and  the 
order  is  disobej^ed,  the  judge,  besides  punishing  the  disobedience  as 
for  contempt,  may  make  an  order  reqiiiring  the  sheriff  to  take  the 
money  or  property,  and  deposit,  deliver,  or  convey  it,  in  conformity 
with  the  direction  of  the  judge. 

Code,  s.  381;  0.  C.  P.,  s.  215. 

852.  Defendant  ordered  to  satisfy  sum  admitted  to  be  due. 

When  the  answer  of  the  defendant  expressly,  or  by  not  denying, 
admits  part  of  the  plaintiff's  claim  to  be  just,  the  judge,  on  motion, 
may  order  such  defendant  to  satisfy  that  part  of  the  claim,  and  may 
enforce  the  order  as  it  enforces  a  judgment  or  provisional  remedy. 

Code,  s.  382;  C.  C.  P.,  s.  215. 

XLIII.     Waste. 

853.  How  remediable.  Wrongs,  remediable  by  tlic  nld  ;icii(iii  ,if 
waste,  are  subjects  of  action  as  other  wrongs;  and  the  judgment  may 
be  for  damages,  forfeiture  of  the  estate  of  the  party  offending,  and 
eviction  from  the  premises. 

Code,  s.  624;   C.  C.  P.,  s.  383. 


s,-,i  CIVIL  PROCEDUEE— XL///.   Waste.  Ch.  12 

854.  For  and  against  whom  lies.  In  all  cases  of  waste,  an  action 
shall  lie  in  the  superior  court  at  the  instance  of  him  in  whom  the 
right  is,  against  all  persons  committing  the  same,  as  well  tenant  for 
term  of  life  as  tenant  for  term  of  years  and  guardians. 

Code,  s.  625;  R.  C,  c.  116,  s.  1;  52  Hen.  III.,  c.  23;  6  Edw.  I.,  c.  5;  20 
Edw.  I.,  St.  2;    11   Hen.  VI.,  c.  5. 

855.  Tenant  in  possession  of  particular  estate  liable.   Where 

tenant  for  life  or  years  grants  his  estate  to  another,  and  still  con- 
tinues in  the  possession  of  the  lands,  tenements,  or  hereditaments, 
an  action  shall  lie  against  the  said  tenant  for  life  or  years. 

Code,  s.  620;   R.  C,  e.   116,  s.  2;   11  Hen.  VI.,  c.  5. 

856.  Action  by  tenant  against  cotenant.  Where  a  joint  tenant 

or  a  tenant  in  common  commits  waste,  an  action  shall  lie  against 
him  at  the  instance  of  his  cotenant.xDn  joint  tenant. 
Code,  s.  627;  R.  C,  c.  116,  s.  4 ;   1^  iEtiw.  I.,  c.  22. 

857.  Heirs  may  sue,  when.    %Y§ij  heir  shall  have  his  action  for 

waste  committed  on  lands,  tenements,  or  hereditaments  of  his  owti 

inheritance,  as  well  in  the  time  of  his  ancestor  as  in  his  own. 

Code,  s.  628;  R.  C,  c.  110,  s.  5;  6  Edw.  I.,  c.  5;  11  Hen.  VI.,  c.  5 ;  20  Edw. 
I.,  St.  2. 

858.  Judgment  for  treble  damages  and  possession.  In  all  cases 

of  waste,  when  judgment  shall  be  against  the  defendant,  the  court 
may  give  judgment  for  thrice  the  amount  of  the  damages  asses.sed 
by  the  jury,  and  also  that  the  plaintiff  recover  the  place  wasted,  if 
the  said  damages  shall  not  be  paid  on  or  before  a  day  to  be  named  in 
the  judgment. 

Code,  s.  029;   R.  C,  c.  116,  s.  3;   6  Edw.  I.,  c.  5;   20  Edw.  I.,  st.  2. 

XLIV.       COMPEOMISE. 

859.  Effect  of  compromise.  In  all  claims,,  or  money  demands, 
of  whatever  kind,  and  howsoever  due,  where  an  agreement  shall  have 
been  or  shall  be  made  and  accepted  for  a  less  amount  than  that 
demanded  or  claimed  to  be  due,  in  satisfaction  thereof,  the  payment 
of  such  less  amount  according  to  any  such  agreement  in  compromise 
of  the  whole,  shall  be  a  full  and  complete  discharge  of  the  same. 

Code,  s.  574;  1874-5,  e.  178. 

860.  Tender  judgment;  effect  of  refusal  to  accept.  The  defend- 
ant, at  any  time  before  the  trial  or  verdict,  may  serve  upon  the  plain- 
tiff an  offer  in  writing  to  allow  judgment  to  be  taken  against  him  for 
the  siun  or  property,  or  to  the  effect  therein  specified,  with  costs.  If 
the  plaintiff  accept  the  oft'er,  and  give  notice  thereof  in  writing  within 

227 


860         CIVIL  PROCEDUEE— A'LZF.  Compromise.  Cb.  12 

ten  days,  he  may  file  the  summons,  complaint,  and  offer,  with  an 
alKdavit  of  notice  of  acceptance,  and  the  clerk  must  thereupon  enter 
judgment  accordingly.  If  the  notice  of  acceptance  be  not  given,  the 
offer  is  to  be  deemed  withdrawn,  and  can  not  be  given  in  evidence : 
and  if  the  plaintiff'  fail  to  obtain  a  more  favorable  judgment  he  can 
not  recover  costs,  but  must  pay  the  defendant's  costs  from  the  time 
of  the  offer.  In  case  the  defendant  shall  set  up  a  counterclaim 
in  his  answer  to  an  amount  greater  than  the  plaintiff's  claim,  or 
sufficient  to  reduce  the  plaintiff"s  recovery  below  fifty  dollars,  then  the 
plaintiff  may  serve  upon  the  defendant  an  offer  in  writing,  to  allow 
judginent  to  be  taken  against  him  for  the  amount  specified,  or  to 
allow  said  counterclaim  to  the  amount  specified  with  costs.  If  the 
defendant  accept  the  offer,  and  give  notice  thereof  in  writing  within 
ten  days,  he  may  enter  judgment  as  above  for  the  amount  specified, 
if  the  offer  entitle  him  to  judgment,  or  if  the  amount  specified  in 
said  offer  shall  be  allowed  him  in  the  trial  of  the  action.  If  the 
notice  of  acceptance  be  not  given,  the  offer  is  to  be  deemed  with- 
dra\\Ti,  and  can  not  be  given  in  evidence;  and  if  the  defendant  fail 
to  recover  a  more  favorable  judgment,  or  to  establish  his  counter- 
claim for  a  greater  amoimt  than  is  specified  in  said  offer,  he  can  not 
recover  costs,  but  must  pay  the  plaintiff's  costs  from  the  time  of  tlu' 
offer. 

Code,  s.  573 ;  C.  C.  P.,  s.  328. 

861.  Conditional  tender  of  judgment  for  damages,  in  an  action 

arising  on  contract,  the  defendant  may,  with  his  answer,  serve  upon 
the  plaintiff'  an  oft'er  in  writing,  that  if  he  fails  in  his  defense,  the 
damages  be  assessed  at  a  specified  sum;  and  if  the  plaintiff'  signify 
his  acceptance  thereof  in  writing,  ten  days  before  the  trial,  and  on 
the  trial  have  a  verdict,  the  damages  shall  be  assessed  accordingly. 
Code,  s.  575;  C.  C.  P.,  s.  329. 

862.  Effect  of  refusal.  If  the  plaintiff  does  not  accejit  the  offer, 
he  shall  prove  his  damages,  as  if  it  had  not  been  made,  and  shall  not 
be  permitted  to  give  it  in  evidence.  Jind  if  the  damage?  assessed 
in  his  favor  shall  not  exceed  the  sum  mentioned  in  the  offer,  the 
defendant  shall  recover  his  expenses  incurred  in  consequence  of  any 
necessary  preparation  or  defense  in  respect  to  the  question  of  dam- 
ages.    Such  expense  shall  be  ascertained  at  the  trial. 

Code,  s.  576;   C.  C.   P.,  s.  330. 

863.  Disclaimer  of  title  to  trespass;  tender  of  judgment.    In 

actions  of  trespass  u]i(in  real  estnte,  wherein  the  defendant  iji  his 
answer  shall  disclaim  to  make  any  title  or  claim  to  the  lands  on 
which  the  trespass  is  by  the  complaint  supposed  to  be  done,  and  the 
trespass  be  by  negligence  or  involuntary,  the  defendant  shall  be  ]ior- 

228 


863  CIVIL  PEOCEDUEE— ZL/T.   Com^yromise.  Ch.   12 

mitted  to  make  a  disclaimer,  and  that  the  trespass  was  by  negligence 
or  involuntary,  and  a  tender  or  offer  of  sulficient  amends  for  such 
trespass ;  whereupon,  or  upon  some  of  them,  the  j^laintiff  shall  join 
issue,  and  if  the  issue  be  found  for  the  defendant,  or  if  the  plaintiff 
shall  be  nonsuited,  he  shall  be  barred  from  the  said  action  and  all 
other  suits  concerning  the  same. 

Code,  s.  577;  R.  C,  c.  31,  s.  79;   1715,  c.  2,  s.  7. 

XLV.     Examination  of  Paeties. 

864.  Action  for  discovery  abolished.  No  action  to  obtain  dis- 
covery under  oath,  in  aid  of  the  prosecution  or  defense  of  another 
action,  shall  be  allowed,  nor  shall  any  examination  of  a  party  be  had, 
on  behalf  of  the  adverse  party,  except  in  the  manner  prescribed  by 
this  subchapter. 

Code,  s.  579;  C.  C.  P.,  s.  332. 

865.  Adverse  party  examined.  A  party  to  an  action  may  be 
examined  as  a  witness  at  the  instance  of  the  adverse  party,  or  of  any 
one  of  several  adverse  parties,  and  for  that  purpose  may  be  compelled, 
in  the  same  manner  and  subject  to  the  same  rules  of  examination  as 
any  other  witness  to  testify,  either  at  the  trial  or  conditionally  or 
upon  commission. 

Code,  s.  580;  C.  C.  P.,  s.  333. 

866.  Before  trial  In  his  own  county.  The  examination,  instead  of 
being  had  at  the  trial,  as  provided  in  the  preceding  section,  may 
be  had  at  any  time  before  the  trial,  at  the  option  of  the  party  claim- 
ing it,  before  a  judge,  commissioner  duly  appointed  to  take  deposi- 
tions, or  clerk  of  the  court,  on  a  previous  notice  to  the  party  to  be 
examined,  and  any  other  adverse  party,  of  at  least  five  days,  unless 
for  good  cause  shown,  the  judge  or  court  shall  order  otherwise.  E\it 
the  party  to  be  examined  shall  not  be  compelled  to  attend  in  any 
county  other  than  that  of  his  residence,  or  where  he  may  be  served 
with  a  summons  for  his  attendance. 

Code,  s.  581;    1893,  c.   114;    1899,  c.  65;   C.  C.  P.,  s.  334. 

867.  Party  compelled  to  attend.  The  party  to  be  examined,  as 
in  the  preceding  section  provided,  may  be  compelled  to  attend  in 
the  same  manner  as  a  witness  who  is  to  be  examined  conditionally ; 
and  the  examination  shall  be  taken  and  filed  by  the  judge,  clerk  or 
coimnissioner  in  like  manner,  and  may  be  read  by  either  party  on  the 
trial. 

Code,  s.  582;   1899,  c.  65,  s.  2;  C.  C.  P.,  s.  335. 


868   CIVIL  PROCEDUEE— XLF.  Examination.  Parties.   Cli.   12 

868.  Testimony  may  be  rebutted.    The  examination  of  the  ])ait.v 

thus  taken  may  be  rebutted  by  adverse  testimony. 

Code,  s.   5S3;   C.  C.   P.,   s.   336. 

869.  Refusal  to  testify;  penalty,  if  a  party  refuses  to  attend  and 
testify,  as  in  tlie  four  preceding  sections  ])rovided,  he  may  be  pun- 
ished as  for  a  contempt,  and  his  pleadings  may  be  stricken  out. 

Code,  s.  584;  C.  C.  P.,  s.  337. 

870.  Testimony  of  party  may  be  rebutted.  A  party  examined 

by  an  adverse  party,  as  in  this  subchapter  provided,  may  be  exam- 
ined on  his  own  behalf,  subject  to  the  same  rules  of  examination  a-< 
other  witnesses.  But  if  he  testify  to  any  new  matter,  not  responsive  tn 
the  enquiries  put  to  him  by  the  adverse  party,  or  necessary  to  ex])lain 
or  cpialify  his  answers  thereto,  or  discharge  when  his  answers  would 
charge  himself,  siich  adverse  party  may  offer  himself  as  a  witness 
on  his  own  behalf  in  respect  to  such  new  matter,  subject  to  the  sami> 
rules  of  examination  as  other  witnesses,  and  shall' be  so  received. 
Code,  s.  585;  C.  C.  P.,  s.  338. 

871.  Real  party  in  interest  examined.  A  person  for  whose  imme- 
diate benefit  the  action  is  prosecuted  or  defended,  though  not  a  party 
to  the  action,  may  be  examined  as  a  witness,  in  the  same  manner, 
and  subject  to  the  same  rules  of  examination,  as  if  he  were  named 
as  a  party. 

Code,  s.  586;   C.  C.  P.,  s.  339. 

872.  Examination  of  co-plaintiff  or  co-defendant.  A  party  may 

be  examined  on  behalf  of  his  co-plaintiff  or  of  a  co-defendant  as  to 
any  matter  in  Avhich  he  is  not  jointly  interested  or  liable  with  sucli 
co-plaintiff  or  co-defendant,  and  as  to  which  a  separate  and  not  joint 
verdict  or  judgment  can  be  rendered.  And  he  may  be  compelled  to 
attend  in  the  same  manner  as  at  the  instance  of  an  adverse  party ; 
but  the  examination  thus  taken  shall  not  be  used  in  behalf  of  the 
party  examined.  And  whenever  one  of  several  plaintiffs  or  defend- 
ants who  are  joint  contractors,  or  are  united  in  interest,  is  examined 
by  the  adverse  party,  the  other  of  such  plaintiffs  or  defendants  may 
offer  himself  as  a  witness  to  the  same  cause  of  action  or  defense,  and 
shall  bo  so  received. 

Code,  s.  587 ;  C.  C.  P.,  s.  340. 

Note.     For  production  of  writings,  see  Evidence,  s.  1656  et  scq. 


b7;3    CIVIL  PEOCEDURE— XLFZ.  Motions  and  Orders.    Ch.  12 

XLVI.     Motions  and  Orders. 

873.  What  is  an  order.  Every  direction  of  a  coiirt  or  judge,  made 
or  entered  in  writing,  and  not  included  in  a  judgment,  is  denominated 
an  order. 

Code,  s.  594;   C.  C.  P.,  ss.  344,  345. 

874.  Motions;  where  and  when  made.  An  application  for  an 

order  is  a  motion.  Motions  may  be  made  to  a  clerk  of  a  superior 
court,  or  to  a  judge  out  of  court,  except  for  a  new  trial  on  the  merits. 
Motions  must  be  made  within  the  district  in  which  the  action  is  tria- 
ble. A  motion  to  vacate  or  modify  a  provisional  remedy,  and  an 
appeal  from  an  order  allowing  a  provisional  remedy,  shall  have  pref- 
erence over  all  other  motions. 
Code,  s.  594;  C.  C.  P.,  ss.  344,  345. 

875.  Affidavit  for  or  against,  compelled.  When  any  party  intends 
to  make  or  oppose  a  motion  in  any  court  of  record,  and  it  shall  be 
necessary  for  him  to  have  the  affidavit  of  any  person  who  shall  have 
refused  to  make  the  same,  such  court  may,  by  order,  appoint  a  referee 
to  take  the  affidavit  or  deposition  of  s\ich  person.  Such  person  may 
be  subpcenaed  and  compelled  to  attend  and  make  an  affidavit  before 
such  referee,  the  same  as  before  a  referee  to  whom  it  is  referred  to  try 
an  issue. 

Code,  s.  594;  C.  C.  P.,  ss.  344,  345. 

876.  Motions  determined  in  ten  days.  Whenever  a  motion  shall 

be  made  in  any  cause  or  proceeding  in  any  of  the  coiirts,  to  obtain  an 
injunction  order,  order  of  arrest,  or  warrant  of  attachment,  gi-anted 
in  any  such  case  or  proceeding,  or  a  motion  to  vacate  or  modify  the 
same  is  made,  it  shall  he  the  duty  of  the  judge  before  whom  such 
motion  is  made,  to  render  and  make  known  his  decision  on  such 
motion  within  ten  days  after  the  day  upon  which  such  motion  shall 
or  may  be  submitted  to  him  for  decision. 
Code,  s.  594;  C.  C.  P.,  ss.  344,  345. 

877.  Notice  of  motion.  When  notice  of  a  motion  is  necessary,  it 
must  be  scrx'od  ten  (hiys  before  the  time  appointed  for  the  hearing; 
but  the  court  or  judge  may,  by  an  order  to  show  cause,  prescribe  a 
shorter  time. 

Code,  s.   .595;   C.   C.   P.,  s.   346. 

XLVII.     Notices. 

878.  In  writing.   All  notices  shall  be  in  writing. 
Code,  s.  597;  C.  C.  P.,  s.  349. 


879  CIVIL  PEOCEDURE— A'LT7/.  Xotices.  Ch.   12 

879.  On  whom  served.  2s"otices  and  other  papers  may  be  served 
on  the  party  or  his  attorney  personally,  where  not  otherwise  provided 
in  this  chapter. 

Code,  s.  597;   C.  C.  P.,  S9.  349,  353. 

Note.     For  statute  against  service  on  Sunday,  see  s.  727. 

880.  Service  upon  attorney.  If  served  upon  an  attorney,  servito 
may  be  made  during  his  absence  from  his  (itiice,  by  leavino-  a  copy  of 
the  paper  with  his  clerk  therein,  or  with  a  person  haviu<;  charc,e 
thereof ;  or,  when  there  is  no  person  in  the  office,  by  leavin}>'  it,  between 
the  hours  of  six  in  the  morning  and  nine  in  the  evening,  in  a  conspicu- 
ous place  in  the  oihce ;  or,  if  it  be  not  o])en  so  as  to  admit  of  such 
service,  then  by  leaving  it  at  the  attorney's  residence  with  some  jierson 
of  suitable  age  and  discretion. 

Code,  s.  597;   C.  C.  P.,  ss.  349,  353. 

881.  Served  on  a  party.  If  upon  a  party,  it  may  he  made  by  leav- 
ing' a  copy  of  the  ]iapcr  at  his  residence,  between  the  hours  of  six  in 
the  morning  and  nine  in  the  evening,  with  some  person  of  suitable  age 
and  discretion. 

Code,  s.  597;   C.  C.   P.,  ss.  349,  353. 

882.  Served  by  publication.  If  upon  a  person  who  can  not  l)r 
found  after  due  diligence,  or  who  is  not  a  resident  of  this  state,  the 
service  thereof  may  be  made  by  the  jniblicatiou  of  the  notice  once  ;x 
week  for  four  successive  weeks  in  some  newspaper  published  in  the 
county  from  which  the  notice  is  issued ;  and  if  no  newspajier  be  pub- 
lished therein,  then  in  some  newspaper  jmblished  within  the  judicial 
district ;  and  the  proof  of  service  shall  be  as  is  required  by  law  in  the 
case  of  a  service  of  a  summons  by  publication. 

Code,  s.  597;  C.  C.  P.,  ss.  .349,  353. 

883.  Publication  of  notices  in  Buncombe  county.  Whenever  the 

ch'i'k  of  tli(^  superior  court  of  Ihnicoinbc  (•o\nity  or  a  judge  of  the 
superior  court  holding  the  superior  court  of  said  county  shall  sign  en- 
make  any  order  directing  the  publication  of  any  notice,  order  or  ]U'o- 
ceeding  required  by  law  to  be  published  in  IJuucoudie  county,  it  .shall 
be  the  duty  of  said  clerk  or  said  judge  to  desigiuite  in  flu;  said  order 
the  newsi)a]ier  in  wliich  said  notice,  order  or  proceeding  siiall  be  pul)- 
lished,  and  no  notice,  order  or  proceeding  ]uil)lishcd  in  any  ])a]ier 
other  tiuui  the  one  designated  in  the  said  order  sliall  l)e  legal  and  suffi- 
cient. 

1905,  c  4.S8. 

884.  Subpoena,  issuance  and  service.  Service  of  a  sidiiMcna  for 

witnesses  may  lie  made  l)y  a  sheriff,  coroner  or  < stable,  anil  ])rove(i 


884  CIVIL  PEOCEDUEE— XLT7/.  Notices.  Ch.   12 

by  the  return  of  such  officer,  or  the  service  may  be  made  by  any 

person  not  a  party  to  the  action,  and  proved  by  his  oath.    A  subpoena 

for  witnesses  need  not  be  signed. by  the  clerk  of  the  court;  it  shall  be 

sufficient  if  subscribed  by  the  party  or  by  his  attorney. 

Code,  s.  .597;  C.  C.  P.,  ss.  349,  353. 

Note.     For  issuance  of  subpoenas  by  cleric,  see  s.  1639. 

885.  To  what  this  subchapter  applies.  This  subchapter  shall  not 
apply  to  the  service  of  a  sunimoiis,  or  other  process,  or  of  any  paper  to 
bring  a  party  into  contempt. 

Code,  s.  597;  C.  C.  P.,  ss.  349,  353. 

886.  Officer's  return  evidence  of  service.  When  a  notice  shall 

issue  to  the  sheriff,  his  return  thereon  that  the  same  has  been  executed 
shall  be  deemed  sufficient  evidence  of  the  service  thereof. 

Code,  s.  940;   R.  C,  c.   31,  s.   123;    1799,  c.   537. 
XLVIII.       TiJIE. 

887.  How  computed.  The  time  within  which  an  act  is  to  be  done, 
as  provided  by  law,  shall  be  computed  by  excluding  the  first  day  and 
including  the  last.     If  the  last  day  be  Sunday,  it  shall  be  excluded. 

Code,  s.  596;   C.  C.  P.,  s.  34S. 

888.  Computation  of,  in  publications.    The  time  for  publication 

of  legal  niiticcs  shall  be  ciini])uted  so  as  to  exclude  the  first  day  of 
publication  and  include  the  day  on  which  the  act  or  event  of  which 
notice  is  given  is  to  happen,  or  which  completes  the  full  period 
required  for  publication. 

Code,   s.  602;   C.   C.   P.,   s.   359. 


Note.     See  ss.  443,    760.  770,  879,  8.34. 


889  CLEKK  SUPERIOE  COl'IiT— /.  Offu-e  of.  Cli.   13 


CHAPTER  13. 
CLERK  OF  SUPERIOR  COURT. 


Scctious. 

I. 

Office  of, 

889—897 

II. 

Deputies, 

898—900 

III. 

Powers, 

901—905 

IV. 

Duties, 

906—915 

V. 

Reports, 

916—917 

VI. 

Money  in  hands  of, 

I.     Office  of. 

918—924 

889.  Includes  judge  of  probate,  which  is  abolished.  The  office 

or  place  of  probate  jiidge  is  abolished,  and  the  duties  heretofore  per- 
taining to  clerks  of  the  superior  court  as  judges  of  ]n-obate  shall  be 
performed  by  the  clerks  of  the  sujjerior  court  as  clerks  of  said  court, 
and  all  matters  pending  before  said  judges  of  probate  shall  be  deemed 
transferred  to  the  clerks  of  the  superior  court. 
Code,  s.   102. 

890.  How  elected;  term  of  office.  A  clerk  of  the  superior  court 
for  each  county  shall  be  elected  by  the  qualitied  voters  thereof,  at  tlie 
time  and  in  the  mantier  prescribed  by  law  for  the  election  of  mem- 
bers of  the  general  assembly.  Clerks  of  the  superior  court  shall  hold 
office  for  four  years. 

Const.,  Art.  IV,  ss.  16,  17. 

891.  How  inducted  into.  The  clerks  of  the  superior  court,  before 
entering  on  the  duties  of  their  office,  shall  take  and  subscribe  before 
some  officer  authorized  by  law  to  administer  an  oath,  the  oaths  jire- 
scribed  by  law,  and  file  such  oaths  with  the  register  of  deeds  for  the 
county. 

Code,  s.  74;  C.  C.  P.,  s.  139. 

Note.     Acting  before  qualifying  a  niisilemranor,  see  s.  .'i5(i.i. 

For  official  bond,  see  s.  295. 

892.  When  declared  vacant.  Tn  case  any  clerk  shall  fail  to  give 
bond  and  cpialifv  as  required  by  law,  the  presiding  officer  of  the  board 
of  conmiissioners  of  his  county  shall  immediately  inform  the  resident 
judge  of  the  judicial  district  thereof,  who  shall  thereupon  declare  the 
office  vacant  and  fill  the  same,  and  the  ajipointee  shall  give  bond  and 
qualify. 

Code,  s.  76;   C.  C.  P..  s.   140. 

Note.     Clerk  can  give  security  in  IUmi  of  bond,  see  Bonds,  s.  268. 


s!):5  CLEEK  SUPEKIOR  COURT— 7.   Office  of.  Cb.   13 

893.  May  be  resigned.  Any  clerk  of  the  superior  court  may  re- 
sign his  otiico  to  tlie  judge  of  the  superior  court,  residing  in  the  dis- 
trict in  which  is  situated  the  county  of  which  he  is  clerk,  and  said 
judge  shall  fill  the  vacancy. 

Const.,  Art.  IV,  s.  29;  Code,  s.  78. 

894.  When  removed  from.  Upon  the  conviction  of  any  clerk  of 
the  superior  court  of  an  infamous  crime,  or  of  corruption  and  mal- 
practice in  ofhce,  he  shall  be  removed  from  otfice,  and  he  shall  be 
disqualified  from  holding  or  enjoying  any  office  of  honor,  trust  or 
profit  under  this  state. 

Code,  s.  123;   1868-9,  c.  201,  s.  53. 

895.  How  vacancies  filled.  In  case  the  office  of  clerk  of  a  superior 
court  for  a  county  shall  Ix'cnme  vacant  otherwise  than  by  the  expira- 
tion of  the  term,  and  in  case  of  a  failure  by  the  people  to  elect,  the 
judge  of  the  supei'ior  court  for  the  county  sliall  appoint  to  fill  the 
vacancy  until  an  election  can  be  regularly  held. 

Const.,  Art.  IV,  s.  29. 

896.  How  furnished  with  stationery,  etc.  The  requisite  station- 
ery, records,  furniture  and  filing  cases  and  devices  for  official  use  must 
be  furnished  to  the  clerk  by  the  board  of  commissioners;  and  to  each 
of  such  books  there  must  be  attached  an  alphabetical  index  securely 
bound  in  the  volume,  referring  to  the  entries  therein  by  the  page  of 
the  book,  unless  there  is  a  cross-index  of  such  book  required  by  law 
to  be  kept.  These  books  must,  at  all  proper  times,  be  open  to  the 
inspection  of  any  person. 

Code,  ss.  82,  84,   113;   C.  C.   P.,  s.  428. 

897.  Examined  by  solicitor.  At  every  regular  term  of  the 
superior  court,  the  solicitor  for  the  judicial  district  shall  inspect  the 
office  of  the  clerk  and  report  to  tlie  court  in  writing.  If  any  solicitor 
shall  fail  or  neglect  to  ]ierforni  the  duty  hereby  imposed  on  him,  he 
shall  be  liable  to  a  penalty  of  five  hundred  dollars  to  any  person  who 
shall  sue  for  the  same. 

Code,  s.  88;  C.  C.  P.,  s.  147. 


Note.     Failing  to  keep  records  a  misdemeanor,  see  s.  3.592. 
II.     Deputies. 

898.   May  be  appointed.   Clerks  of  the  superior  court  may  appoint 
deputies,  who  shall  take  and  subscribe  the  oath  ]n-(>scribed  for  clerks. 
Code,  s.  75;   R.  C,  e.  19,  s.  15;   1777,  c.  115,  s.  86. 


899  CLEKK  SUPERIOR  COURT—//.  Deputies.        Ch.   i;J 

899.  Record  of  appointment  and  discharge.    Each  clerk  of 

a  sii])ci'ior  court  shall  nialce  a  record  of  the  ap]iointraent  of  each 
deputy  he  may  appoint,  on  the  special  proceedings  docket  of  his  court, 
giving  the  name  of  such  a])pointee  and  the  date  of  such  ap]iointment, 
and  make  a  cross-index  of  the  same,  and  siiall  furnish  to  the  register 
of  deeds  of  his  county  a  transcript  of  such  record;  and  such  register 
of  deeds  shall  record  the  same  in  the  records  of  deeds  in  his  othce  and 
make  a  cross-index  thereof  on  the  general  index  in  his  office.  When- 
ever any  such  deputy  clerk  shall  be  removed  from  his  office  the  clerk 
of  the  superior  court  by  whom  he  was  appointed  shall  write  on  the 
margin  of  the  record  of  such  appointment  in  his  office,  and  on  the 
margin  of  the  record  of  sncli  appointment  in  the  office  of  the  register 
of  deeds,  the  word  "revoked"  and  the  date  of  such  revocation,  and 
sig-n  his  name  thereto.  A  duly  certified  copy  of  such  appointment 
and  of  snch  revocation,  under  the  hand  and  official  seal  of  the  regis- 
ter of  deeds,  shall  be  deemed  prima  facie  evidence  of  the  regularity 
of  such  appointment  and  revocation,  and  shall  be  admitted  as  evi- 
dence in  all  the  courts. 
1899,  c.  235,  s.  3. 

900.  Clerk  responsible  for  acts  of.    The  several  clerks  of  the 

superior  court  shall  be  held  res])onsible  for  the  acts  of  their  deputies. 
Deputies  shall  be  subject  in  all  respects  to  all  laws  which  apply  to 
the  clerks. 

1899,  e.  235,  s.  2. 

III.     Powers. 

901.  Enumeration  of.   Every  clerk  has  power — 

1.  To  issue  subpa?nas  to  compel  the  attendance  of  any  witness  resid- 
ing or  being  in  the  state,  or  to  compel  the  production  of  any  bond 
or  paper,  material  to  any  inquiry  pending  in  his  court. 

2.  To  administer  oaths  and  take  acknowledgments,  whenever 
necessary,  in  the  exercise  of  the  powers  and  duties  of  his  office. 

3.  To  issue  commissions  to  take  the  testimony  of  any  witness  within 
or  without  this  state. 

4.  To  issue  citations  and  orders  to  show  cause  to  parties  in  all 
matters  cognizable  in  his  court,  and  to  compel  the  appearance  of 
such  parties. 

.'>.  To  enforce  all  lawful  orders  and  decrees  by  execution  or  other- 
wise, against  those  who  fail  to  comply  thercwitli  or  to  execute  lawful 
process.  Process  may  bo  issued  by  the  clerk,  to  be  executed  in  any 
county  of  the  slate,  and  to  be  returned  before  him. 

fi.  To  cxemjdifv,  under  seal  of  his  court,  all  transcripts  of  deeds, 
pa]iers  or  proceedings  therein,  which  shall  be  received  in  evidence 
in  all  the  courts  of  the  state. 


901  CLEEK  SUPERIOR  COURT— 777.  Powers.  Ch.  13 

7.  To  preserve  order  in  his  court  and  to  punish  contempts. 

8.  To  adjourn  any  proceeding  pending  before  him  from  time  to 
time. 

9.  To  open,  vacate,  modify,  set  aside,  or  enter  as  of  a  former  time, 
decrees  or  orders  of  his  court,  in  the  same  manner  as  courts  of  general 
jiirisdiction. 

10.  To  award  costs  and  disbursements  as  prescribed  by  law,  to  be 
paid  personally,  or  out  of  the  estate  or  fund,  in  any  proceeding  be- 
fore him. 

11.  To  compel  the  return  to  his  office  by  each  justice  of  the  peace, 
on  the  expiration  of  the  term  of  office  of  such  justice,  or  if  the  justice 
be  dead  by  his  personal  representative,  of  all  records,  papers  dockets 
and  books  held  by  such  justice  by  virtue  or  color  of  his  office  and  to 
deliver  the  same  to  the  successor  in  office  of  such  justice. 

12.  To  take  proof  of  deeds,  bills  of  sale]  official  bonds,  letters  of 
attorney,  or  other  instruments  permitted  or  required  by  law  to  be 
registered. 

13.  To  take  proof  of  wills  and  grant  letters  testamentary  and  of 
administration. 

14.  To  revoke  letters  testamentary  and  of  administration. 

15.  To  appoint  and  remove  guardians  of  infants,  idiots,  inebriates 
and  lunatics. 

16.  To  bind  out  apprentices  and  to  cancel  the  indentures  in  such 
cases. 

17.  To  audit  the  accounts  of  executors,  administrators,  collectors, 
receivers,  commissioners  and  guardians. 

18.  To  exercise  jurisdiction  conferred  on  him  in  every  other  case 
prescribed  by  law. 

Code,  33.  103,  108;  C.  C.  P.,.S3.  417,  418,  442;  1901,  c.  614,  s.  2. 

902.  When  he  can  not  exercise.  No  clerk  can  act  as  such  in  rela- 
tion to  any  estate  or  proceeding — 

1.  If  he  has,  or  claims  to  have,  an  interest  by  distribution,  by  will, 
or  as  creditor,  or  otherwise. 

2.  If  he  is  so  related  to  any  person  having  or  claiming  such  inter- 
est, that  he  would,  by  reason  of  such  relationship,  be  disqualified  as 
a  juror;  but  the  disqualification  on  this  ground  ceases,  unless  the 
objection  is  made  at  the  first  hearing  of  the  matter  before  him. 

3.  If  he  or  his  wife  is  a  party  or  a  subscribing  witness  to  any  deed 
of  conveyance,  testamentary  paper  or  nuncupative  will ;  but  this  dis- 
qualification ceases  when  such  deed,  testamentary  paper,  or  will  has 
been  finally  admitted  to  or  refused  probate  by  another  clerk,  or  before 
the  judge  of  the  superior  court. 

4.  If  he  or  his  wife  is  named  as  executor  or  trustee  in  any  testa- 
mentary or  other  paper ;  but  this  disqualification  ceases  when  the  will 


902  CLERK  SUPERIOR  COURT—///.  Powers.  Ch.  13 

or  other  paper  is  finally  admitted  to  or  refused  probate  by  another 
clerk,  or  before  the  judge  of  the  superior  court. 

5.  If  he  shall  renounce  the  exeeutorshi])  and  endorse  the  same 
on  the  will  or  on  some  paper  attached  thereto,  before  it  is  propounded 
for  probate,  in  which  case  the  renunciation  must  be  recorded  with 
the  M'ill  if  admitted  to  probate. 

Code,  s.   104;   C.  C.  P.,  s.  419;    1871-2,  c.   196. 

Note.  Clerk  can  not  appoint  himself  or  deputy  oouimissioner  to  sell  land,  see 
Partition,  s.  251.3. 

903.  Exercise  of,  on  waiver  of  disqualification.  The  parties  may 

waive  the  di.'^qualilication  specified  in  subdivisions  one,  two,  three 
and  five  of  the  preceding  section,  and  upon  filing  in  the  office  such 
waiver  in  writing,  the  clerk  shall  act  as  in  other  cases. 

Code,  s.   10.5;   C.  C.   P.,   s.  420. 

904.  When  can  not  exercise,  cause  removed.  When  any  of  the 

disqualifications  specified  in  this  chapter  exist,  and  there  is  no  waiver 
thereof,  or  can  not  be  such  waiver,  any  party  in  interest  may  apply 
to  the  judge  of  the  district  or  to  the  judge  holding  the  courts  of  such 
district  for  an  order  to  remove  the  proceedings  to  the  clerk  of  tlie 
superior  coiirt  of  an  adjoining  county  in  the  same  district. 

Code,  s.  106;  C.  C.  P.,  s.  421. 

Note.  For  probate  of  conveyances  to  which  clerks  are  parlies,  see  Convey- 
ances, s.  995. 

905.  Exercised  by  judge,  when.    In  all  cases  where  the  clerk  of 

the  superior  court  shall  be  executor,  administrator,  collector  or  giiar- 
dian  of  any  estate  at  the  time  of  his  election  to  office,  in  order  to  euable 
him  to  settle  such  estate,  the  judge  of  the  superior  court  mentioned  in 
the  preceding  section  is  empowered  to  make  sucli  orders  as  may  be 
necessary  in  the  settlement  of  the  estate ;  may  audit  the  accounts  or 
appoint  a  commissioner  to  audit  the  accounts  of  such  executor  or 
administrator,  and  report  to  either  of  said  judges  for  his  a{)proval, 
and  when  the  accounts  are  so  approved,  it  shall  be  his  duty  to  order 
the  proper  record  to  be  made  by  the  clerk,  and  the  accounts  to  be  filed 
in  court. 

Code,  s.  107;   1871-2,  c.  197. 

IV.       DUTIE.S. 

906.  To  receive  official  papers  from  predecessor.  Immediately 

after  he  shall  have  given  boiul  and  qualilicd,  liic  clerk  shall  r(M'eivc' 
from  the  late  clerk  of  the  superior  court  all  tiie  records,  books. 
])apers,  moneys  and  pr(3perty  of  his  office,  and  give  receipts  for  the 
same,  and  if  any  clerk  shall  refu.se,  or  fail  witliin  a  reasonable  time 


906  CLERK  SUPEEIOR  COURT— ZF.  Duties.  Ch.   V, 

after  demand  to  deliver  such  records,  books,  papers,  moneys  and  prop- 
erty, he  shall  be  liable  on  his  official  bond  for  the  value  thereof. 

Code,  s.  81;   C.  C.  P.,  s.   142. 

Note.     Failure  to  deliver  books,  records,  etc.,  misdemeanor,  see  ss.  3570,  3592. 

907.  To  transfer  records  to  successor,  how  compelled.  Upon 

going  out  of  office  for  whatever  reason,  any  clerk  of  the  superior, 
inferior,  or  criminal  court,  shall  transfer  and  deliver  to  his  successor 
(or  to  such  person,  before  his  successor  in  office  may  be  appointed, 
as  the  court  may  designate),  all  records,  documents,  papers,  and 
money  belonging  to  the  office.  And  the  judge  appointing  any  clerk 
to  a  vacancy  in  the  clerkship  of  the  superior  court,  may  give  to  such 
person  an  order  for  the  delivery  to  him,  by  the  person  having  the 
custody  thereof,  of  the  records,  documents,  papers  and  moneys  belong- 
ing to  the  office,  and  he  shall  deliver  the  same  in  obedience  to  such 
order.  And  in  case  any  clerk  going  out  of  office  as  aforesaid,  or 
other  person  having  the  custody  of  such  records,  documents,  papers, 
and  money  as  aforesaid,  shall  fail  to  transfer  and  deliver  them  as 
herein  directed,  he  shall  forfeit  and  pay  to  the  state  one  thousand 
dollars,  which  shall  be  sued  for  by  the  prosecuting  officer  of  that 
court. 

Code,   s.    124;   R.   C,  c.   19,   s.   14. 

908.  Unperformed  duties  of  outgoing  clerk,  how  compelled. 

Whenever,  upon  the  death  or  resignation,  removal  from  office,  or  at 
the  expiration  of  his  term  of  office,  any  clerk  shall  have  failed  to  dis- 
charge any  of  the  duties  of  his  office,  the  court,  if  practicable,  shall 
cause  the  same  to  be  performed  by  another  person,  who  shall  receive 
for  such  services,  and  as  a  compensation  therefor,  the  fees  allowed  by 
law  to  the  clerk ;  and  such  portion  thereof  as  may  be  paid  by  the 
county,  may  be  recovered  by  the  coimty,  by  suit  on  the  official  bond 
of  the  defaulting  clerk,  to  be  brought  on  the  relation  of  the  board 
of  commissioners  of  the  county. 

Code.  s.  87;  R.  C,  c.  19,  s.  19;   1844,  c.  5,  s.  6. 

909.  When  and  where  to  keep  office  open.   He  shall  have  an 

office  in  the  courthouse  or  other  place  provided  by  the  board  of  com- 
missioners, in  the  county  town  of  his  county.  He  shall  give  due 
attendance,  in  person  or  by  deputy,  at  his  office  daily,  Sundays  and 
holidays  excepted,  from  nine  o'clock,  a.  m.,  to  three  o'clock,  p.  m., 
and  longer  when  necessary  for  the  dispatch  of  business ;  and  per- 
sonally every  Monday  for  the  transaction  of  probate  business,  and  on 
each  succeeding  day  till  such  matters  are  disposed  of;  and  upon  his 
failure  to  do  so,  unless  caused  by  sickness  or  other  urgent  necessity 
or  unless  leave  of  absence  is  obtained  by  law,  he  shall  forfeit  his 
office. 

Code,  ss.  80,   114,   115;   C.   C.   P.,  s.   141;    1871-2,  c.   1.3G. 
239 


910  CLERK  SUPERIOR  COURT— /I'.  Duties.  Ch.  13 

910.  How  leave  of  absence  from  office  obtained.  Upon  api)lica- 

tion  of  any  clerk  of  the  superior  Cdurt  U>  the  judge  of  the  superior 
court,  residing  in  tlie  district  in  wiiich  said  clerk  resides,  showing 
good  and  sufhcient  reason  for  said  clerk  absenting  himself  from  his 
office,  said  judge  may  issue  an  order  allowing  said  clerk  to  absent 
himself  from  his  office  for  such  time  as  said  judge  may  deem  proper: 
Provided,  said  clerk  of  the  superior  court  shall  at  all  times  leave  a 
competent  deputy  in  charge  of  his  office  during  his  absence.  The 
order  of  said  resident  judge  granting  relief  shall  be  filed  and  re- 
corded in  the  office  of  the  clerk  of  the  superior  court  of  the  county 
in  which  said  clerk  resides. 
1903,  e.  467. 

911.  To  furnish  blank  process,  bonds  and  undertakings.  Clerks 

of  courts  shall  furnish  to  parties  printed  copies  of  the  formal  parts 
of  all  process  required  to  be  issued  by  them,  with  convenient  blank 
spaces  for  the  insertion  of  written  matter;  and  also  the  blank  forms 
of  such  bonds  and  undertakings  as  are  required  to  be  taken  by  them. 

Code.  s.  3761;  C.  C.  P..  s.  .")5n :   1868-!),  o.  279,  s.  .558. 

912.  How  papers  must  be  filed.  The  clerk  must  tile  and  preserve 
all  papers  in  proceedings  before  him,  or  belonging  tx)  the  court ;  and 
shall  keep  the  papers  in  each  action  in  a  se]iarate  roll  or  bundle,  and 
at  its  termination  attach  them  together,  properly  labeled,  and  file 
them  in  the  order  of  the  date  of  the  final  judgment;  and  all  such 
papers  and  the  books  kept  by  him  belong  to,  and  appertain  to,  his 
ofiice,  and  must  be  delivered  to  his  successor. 

Code,  ss.  86,   111;  C.  C.  P.,  ss.   146,  426. 

913.  To  keep  record;  liable  for  records  and  papers.  He  shall 

keep  in  bound  volumes  a  complete  and  faithful  record  of  all  his  offi- 
cial acts,  and  give  copies  thereof  to  all  persons  desiring  them,  ou 
payment  of  the  legal  fees.  He  shall  be  answerable  for  all  records 
belonging  to  his  office,  and  all  papers  filed  in  the  court,  and  they 
shall  not  be  taken  from  his  custody,  unless  by  special  order  of  the 
court,  or  on  the  written  con.sent  of  the  attorneys  of  record  of  all  the 
parties;  but  parties  may  at  all  times  have  copies  upon  paying  the 
clerk  therefor. 

Code,  s.  82;   C.  C.  P..  s.  143;    1868-9,  c.   i:>n,  s.  4. 

914.  To  endorse  date  of  issue  on  process.  The  clerk  shall  note 

on  all  precepts,  process  and  executidus  the  day  on  which  the  same 
shall  be  issued;  and  the  sheriff  or  other  officer  receiving  the  same  for 
execution  shall  in  like  numner  note  tliereon  the  day  on  which  he  sliall 
have  received  it,  and  the  day  of  the  execution  ;  and  every  clerk,  siieritT 
or  other  officer  neglecting  so  to  do  shall  forfeit  and  pay  one  hundred 
dollar.^. 

Code,  s.  100. 


111;-.  CLERK  SUPERIOR  COURT— 77.  Duties.  Ch.   13 

915.  Books  to  be  kept.  Each  clerk  shall  keep  the  following  books, 
which  shall  be  open  to  the  inspection  of  the  public  during  reg-nlar 
office  hours : 

1.  Summons  docket,  which  shall  cnutain  a  docket  of  all  writs, 
summonses  or  other  original  process  issued  by  him,  or  returned  to  his 
office,  which  are  made  returnable  to  a  regular  term  of  the  superior 
court;  this  docket  shall  contain  a  brief  note  of  every  proceeding 
whatever  in  each  action,  up  to  the  final  judgment  inclusive. 

2.  Judgment  docket,  which  shall  contain  a  note  of  the  substance 
of  every  judgment  and  every  proceeding  subsequent  thereto. 

3.  Civil  issue  docket,  which  shall  contain  a  docket  of  all  issues 
of  fact  joined  upon  the  pleadings,  and  of  all  other  matters  for  hear- 
ing before  the  judge  at  a  regular  term  of  the  court,  a  copy  of  which 
shall  be  furnished  to  the  judge  at  the  commencement  of  each  term. 

4.  Cross-index  to  judgments,  which  shall  contain  ;i  dir.'ct  and 
reverse   alphabetical   index   of   all   final   judgments   in   civil    actions  _ 
rendered  in  the  court,  with  the  dates  and  numbers  thereof,  and  also 
of  all  final  judgments  rendered  in  other  courts  and  authorized  by  law 
to  be  entered  on  bis  judgTuent  docket. 

.5.  Ceiminal  docket,  which  shall  contain  a  note  of  evcu'v  pro- 
ceeding in  each  criminal  action. 

fi.  i\IiNUTE  docket,  which  shall  contain  a  recurd  of  all  jirocced- 
ings  had  in  the  court  during  term,  in  the  order  in  which  they  occur, 
and  such  other  entries  as  the  judge  may  direct  to  be  made  therein. 

7.  Special  proceedings  docket,  which  shall  contain  a  docket 
of  all  writs,  summonses,  petitions,  or  other  original  process  issued  by 
him,  or  returnable  to  his  office,  and  not  returnable  to  a  regular  term ; 
this  docket  shall  contain  a  brief  note  of  every  proceeding,  up  to 
the  final  judgTnent  inclusive. 

5.  Minute  docket,  which  shall  contain  a  record  of  all  proceed- 
ings had  before  the  clerk,  in  actions  or  proceedings  not  returnable  to 
a  regular  tenn  of  the  court. 

9.  Record  of  wills,  which  shall  contain  a  record  of  all  wills, 
with  the  certificates  of  probate  thereof. 

10.  Record  of  appointments,  which  shall  contain  a  record  of 
appointments  of  executors,  administrators,  guardians,  collectors  and 
masters  of  apprentices,  with  revocations  of  all  such  appointments; 
and  on  which  shall  be  noted  all  subsequent  proceedings  relating 
thereto. 

11.  Record  of  orders  and  decrees,  which  shall  contain  a  record 
of  all  orders  and  decrees  passed  in  his  office,  which  he  is  required  to 
make  in  writing,  and  not  required  to  be  recorded  in  some  other 
book. 

12.  Record  of  accounts,  which  shall  contain  a  record  of  accounts, 
in  which  must  be  recorded  inventories  and  annual  accounts  of  execu- 

Rev.  Vol.  1—12  241 


915  CLERK  SUPERIOR  COURT—/]'.  Duties.  Ch.  13 

tors,  administrators,  collectors,  trustees  Tinder  assi<^ninonts  for  cred- 
itors, and  guardians,  as  audited  by  him  from  time  to  time. 

13.  Record  of  setti,emexts,  which  shall  contain  a  record  of 
settlements,  in  which  must  be  entered  the  final  settlements  of  execu- 
tors, administrators,  collectors,  commissioners,  trustees  under  assign- 
ments for  creditors,  and  g-iiardians. 

14.  Record  of  jurors^  which  shall  contain  a  list  of  all  persons 
who  serve  as  grand,  petit,  and  tales  jurors  in  his  coiirt;  which  shall 
be  i^roperly  indexed. 

15.  Record  of  justices  of  the  peace,  which  shall  contain  a 
complete  list  of  the  justices  of  the  peace  of  the  county,  by  townships, 
giving  the  date  of  election  or  appointment,  qualification,  and  expira- 
tion of  term  of  office  of  each ;  and  whenever  a  vacancy  occurs  it  shall 
be  noted  therein.  These  books  shall  at  all  times  show  a  complete  list 
of  the  justices  of  the  peace  of  the  county  and  who  was  the  jirede- 
cessor  of  each  justice  and  the  succession  in  otfice. 

IG.  Record  of  bookSj  which  shall  contain  the  date  of  delivery 
to  each  justice  of  the  peace  of  any  dockets,  records,  and  books;  and 
the  date  of  the  receipt  by  him  to  any  justice  of  the  peace,  or  to  the 
personal  representative  of  a  deceased  justice  of  the  peace,  for  any 
dockets,  records  and  books  returned  to  iiim. 

17.  Cro.ss-index  of  wills,  which  .shall  contain  a  general  alplia- 
betical  cross-index  of  all  wills  filed  or  recorded  in  the  otfice  of  tlic 
clerk  of  the  superior  court,  and  devising  real  esta.te  or  any  interest 
therein,  whether  such  devise  appears  on  the  face  of  said  will  or 
not,  showing  the  full  name  of  each  devisor,  and  all  devisees  as  they 
are  given  in  the  will,  together  with  the  date  of  the  ]irobate  of  such 
will. 

IS.  Cross-index  of  executors  and  AT>.MiNisTiiAToi!s,  which  shall 
contain  a  general  alphabetical  cross-index  of  tiie  ajjpointnient  of  all 
executors  and  administrators  made  by  the  courts  of  their  county, 
showing  the  name  of  the  appointee,  the  name  of  the  decedent,  and 
date  of  appointment. 

10.  Cross-index  of  guardians,  which  shall  contain  a  general 
alphabetical  cross-index  of  the  appointment  of  all  g\uirdians  made 
by  the  courts  of  their  county,  showing  the  name  of  the  guardian,  the 
names  of  tlie  wards,  and  date  of  appointment. 

20.  Record  of  fines  and  penalties,  which  shall  contain  an 
itemized  and  detailed  statement  of  the  respective  amounts  received 
by  him  in  the  way  of  fines,  penalties  and  forfeitures,  and  paid  over 
to   the  county  treasurer. 

21.  Lien  docket,  whicli  shall  contain  a  record  of  nil  notices  of 
liens  filed  in  his  office,  ]u-o])erly  indexed  showing  tlic  names  of  llie 
lienor  and  lienee. 


!»15  CLERK  SUPERTOE  COURT— 7T^  Duiies.  Cli.  13 

22.  Recoed  of  appointment  of  receivers,  which  shall  contain 
a  record  of  all  aijpointinents  of  receivers,  and  all  inventories,  reports, 
and  accounts  filed  by  them ;  Avhich  shall  be  properly  indexed. 

23.  Record  of  corporations,  which  shall  contain  a  record  of  the 
I'crtificate  of  incorporation  of  all  corporations  chartered  under  gen- 
rial  law,  with  principal  otRce  or  place  of  business  in  his  county. 

24.  Accounts  of  indigent  orphans,  which  shall  contain  a 
II  cord  of  all  receipts  from  persons  for  money  paid  for  indigent  chil- 
dren. 

25.  Register  of  physicians  and  surgeons,  which  shall  contain 
a  list  of  the  names  and  places  of  residence  with  date  of  registration 
of  all  persons  registered  by  him  as  physicians  and  surgeons. 

26.  Register  of  dentists,  which  shall  contain  a  registration  of 
certificates  of  all  persons  entitled  to  practice  dentistry  in  his  county. 

27.  Register  of  trained  nurses,  which  shall  contain  the  name, 
residence  and  date  of  registration  of  all  trained  nurses  duly  licensed 
in  his  county. 

28.  Permanent  roll  of  registered  voters,  which  shall  contain 
an  alphabetical  list  by  to\\niships  of  all  persons  entitled  to  perma- 
nent registration,  giving  the  name  and  age  of  each,  the  name  of  the 
person  from  whom  he  was  descended,  unless  he  himself  was  a  voter 
on  July  1,  1867,  or  prior  thereto,  the  state  in  which  he  was  such  voter 
and  the  date  he  applied  for  registration. 

29.  Record  of  payment  of  poll  tax,  which  shall  contain  a 
list  by  townships  of  all  j^ersons  certified  to  him  by  sheriif  or  tax  col- 
lector as  having  paid  their  poll  tax  by  May  first. 

30.  Lunacy'  docket,  which  shall  contain  a  record  of  all  exami- 
nations of  persons  alleged  to  be  insane,  a  brief  summary  of  the 
proceedings,  and  his  findings,  and  a  record  of  all  proceedings  in 
lunacy  transmitted  to  him  by  justices  of  the  peace. 

31.  Record  of  county'  treasurer's  report,  which  shall  contain 
an  itemized  statement  of  all  fines  and  penalties  paid  to  the  county 
treasurer;  which  said  itemized  statement  of  fines  and  penalties  re- 
ceived by  the  county  treasurer  shall  be  by  him  reported  to  the  clerk 
on  the  first  day  of  January,  April,  July  and  October,  respectively,  of 
each  and  every  year. 

32.  ISToL.  PROS.  WITH  LEAVE  RECORD,  whicli  shall  contain  a  I'ccord 
of  all  cases  in  which  a  nolle  prosequi  with  leave  is  entered  in  criminal 
actions,  with  the  terra  of  court  at  which  the  order  is  made,  and  which 
sliall  be  cross-indexed. 

Code,  ss.  83,  O.'),  96.  97,  112,  1789;  1893,  c.  52;  1899,  c.  110;  1903,  c.  51  ;  1901, 
c.  2,  s.  9 ;  1899,  c.  82 ;  1880,  c.  181.  s.  4 ;  1S87.  c.  178,  s.  2  ;  1903,  c.  Sno,  s.  (! ;  1!X)1, 
c.  550,  s.  3;  1901,  c.  89,  s.  13;   1899,  c.  1.  s.  17;  1905,  c.  360,  s.  2. 


Note.     For  record  of  official  reports,  see  s.  919. 


91G  CLERK  SUPERIOR  COURT— F.  Reports.  Cli.   13 

V.     Reports. 

916.  List  of  justices  to  secretary  of  state.   The  clerk  of  the 

superior  court  of  each  county  in  which  justices  of  the  peace  are  not 
elected  by  the  qualified  voters  tliereof  un  the  first  ^londay  in  January 
preceding  each  regular  session  of  the  general  assembly  shall  certify  \>< 
the  secretary  of  state  a  correct  list  of  all  justices  of  the  peace  in  ottii-c 
in  his  county,  the  township  in  which  each  resides,  the  term  of  oflice 
of  each,  time  of  election  or  appointment,  and  when  the  respective 
terms  of  office  of  each  expires.  He  shall  also  report  the  names  of 
those  elected  or  appointed  justices  of  the  peace,  but  who  have  failed 
to  qualify,  and  when  their  terms  of  office  began  and  the  length 
thereof. 

Code,  s.  89;    1901,  c.  37,  s.  2;    1881,  c.  32G. 

917.  Criminal  statistics  to  attorney  general.    Within  twenty 

days  after  the  adjournment  of  any  term  of  the  superior  coiirt  at 
which  criminal  causes  were  triable,  the  clerk  thereof  shall  transmit 
to  the  office  of  the  attorney  general  of  the  state  a  duly  certified  state- 
ment of  the  number  of  indictments  finally  disposed  of  at  such  court, 
specifying  the  number  for  each  separate  offense,  the  number  on 
which  convictions  were  had  and  on  which  defendants  were  acquitted, 
and  of  indictments  against  persons  who  were  convicted  on  confes- 
sion, and  against  persons  who  were  discharged  without  trial,  and 
also  the  name,  age,  occupation,  sex,  race  and  offense  of  every  person 
convicted  at  such  court,  or  pleading  guilty  of  any  offense,  together 
with  such  other  items  of  information  in  relation  to  such  convicts  and 
their  offenses  as  the  attorney  general  shall  require,  on  a  form 
prescribed  by  him.  For  every  neglect  of  any  clerk  of  said  court 
he  shall  forfeit  the  sum  of  fifty  dollars,  to  be  adjudged  in  tlie 
superior  court  of  Wake  county  on  the  motion  of  the  attorney 
general,  whose  duty  it  is  hereby  made  to  make  such  motion  at  the 
first  term  of  said  court  held  after  such  neglect  of  ajiy  clerk. 

1889,  c.  341,  ss.  1,  2,  3. 

VI.  Money  in  Hands  of. 

918.  Of  funds  in  hand  to  county  commissioners,  chrks  of  the 

superior  courts  sliall  make  an  annual  rcpurt  of  all  public  funds  which 
may  be  in  tlieir  liands  on  the  first  ^Monday  in  ]Oi'cend)er  of  each  anil 
every  year,  or  oftcuer,  if  required  by  orih'r  of  the  board  of  conunis- 
sioners  or  any  other  lawful  authoi-ity,  which  report  shall  include  a 
statement  of  all  funds  in  the  hands  of  said  clerks  by  virtue  or  color 
of  their  office,  and  wliich  may  belong  to  persons  or  corporations. 
The  said  report  shall  be  made  to  the  board  of  county  commissioners 

244 


UlS     CLEEK  SUPERIOE  COURT— 17.  Money  in,  etc.     Ch.   13 

and  shall  be  addressed  to  the  chairman  thereof,  and  the  said  report 
shall  give  an  itemized  statement  of  said  funds  so  held,  with  the  date 
and  source  from  which  they  were  received,  and  the  person  to  whom 
due,  how  invested  and  where,  and  in  whose  name  deposited,  giving  the 
date  of  any  certificate  of  deposit,  or  other  evidence  of  investment 
of  said  fund,  and  the  rate  of  interest  the  same  is  drawing,  and  said 
report  shall  be  subscribed  and  verified  by  the  oath  of  the  party 
making  the  same  before  any  person  allowed  to  administer  oaths. 

1891,  c.  580. 

Note.  Failure  to  report  or  swearing  falsely  to  same  a  misdemeauor,  see 
8.  3605. 

919.  How  approved,  recorded,  and  published.   The  board  of 

commissioners  shall  refer  all  itemized  statements  made  by  the  clerks 
of  the  superior  courts  to  a  special  committee  of  their  board,  who 
shall  compare  the  same  with  the  records  of  the  clerk's  otfice  from 
which  said  report  is  made  and  certify  the  same  to  the  board  as  cor- 
rect, and  if  approved  the  board  shall  cause  the  same  to  be  registered 
in  the  ofiice  of  the  register  of  deeds,  in  a  book  to  be  furnished  to  said 
register  by  the  board  of  county  commissioners,  which  books  shall  be 
styled  "Record  of  Oificial  Reports,"  with  a  i)roper  index  of  all  reports 
recorded  therein,  and  each  original  i-eport  shall,  if  approved  by  the 
chairman  of  the  board,  be  endorsed  with  the  word  "approved,"  the 
date  of  approval  and  the  endorsement  sigTied  by  the  chairman,  and 
when  recorded  by  the  register  of  deeds  he  shall  endorse  thereon  the 
date  of  registration,  the  page  of  the  Record  of  Official  Reports 
upon  which  the  same  is  registered,  sign  the  same  and  file  it  in  his 
office.  The  said  register  shall  also  cause  a  copy  of  said  report  to  be 
published  one  time  in  some  newspaper  of  general  circulation  pub- 
lished in  the  coTinty  of  said  I'egister  and  also  posted  at  the  courthouse 
door  within  twenty  days  after  filing  said  reports ;  and  if  no  news- 
paper is  published  in  the  county  the  posting  of  said  report  at  the 
courthouse  door  shall  be  a  sufficient  publication.  The  cost  of  publish- 
ing said  report  shall  be  paid  by  the  county. 

Code,  s.  90;   1891,  c.  580,  s.  3;   1893,  c.  14,  s.  3;   1874-5,  c.  151;   1876-7,  c.  276. 

920.  Compelled  by  commissioners.   If  any  clerk  shall  fail  to 

report,  or  if  after  a  rc])ort  has  been  made,  the  board  of  county  com- 
missioners shall  have  reason  to  believe  that  any  report  is  incorrect, 
the  board  shall  take  legal  steps  to  compel  a  proper  report  to  be  made 
by  suit  on  the  bond  of  such  clerk,  or  by  reporting  the  fact  to  the 
solicitor  of  the  district  to  which  the  county  of  said  board  may  belong 
for  his  action. 

Code.  s.  92;   1891,  e.  580,  s.  2;   1874-5,  e.  151,  s.  3;   1876-7,  e.  276. 


921     OLEKK  81TPEKT0R  COURT— 17.  :!iIoHcy  in,  etc.     Ch.   lo 

921.  Paid  to  persons  entitled.  The  said  clerks  shall,  on  or  before 
the  first  day  of  .lanuarv  in  every  year  after  the  statements  required 
in  the  foregoing  sections  are  made,  account  with  and  jiay  to  the  j)er- 
sons  entitled  to  receive  the  same  all  such  balances  re])orted  as  afore- 
said to  be  in  their  hands. 

Code,  s.  1865;  R.  C,  c.  73,  s.  2;  1823,  c.  1186,  s.  2;  1831,  o.  3,  ss.  1.  3; 
1893,  c.  14,  s.  1. 

922.  Fees  of  jurors  and  witnesses,  when  paid  to  treasurer. 

All  moneys  due  jurors  and  witnesses  which  shall  remain  in  the 
hands  of  any  clerk  of  the' .sniaerior  court  on  the  first  day  of  January 
after  the  publication  of  a  third  annual  report  of  the  said  clerk  show- 
ing the  same  shall  be  turned  over  to  the  county  treasurer  for  the  use 
of  the  school  fund  of  the  county,  and  it  shall  be  the  duty  of  said  clerk 
to  indicate  in  his  report  any  moneys  so  held  by  him  for  a  period 
embracing  the  two  annual  reports. 

1891,  c.   580,  s.  4;    1893,  c.   14,  s.  3. 

923.  Used  by  public  till  called  for.  The  money  aforesaid,  while 
held  by  the  clerks,  shall  be  paid  on  application,  to  the  persons  entitled 
thereto;  and  after  it  .shall  cease  to  be  so  held,  it  may  be  used  as 
other  revenue,  subject,  however,  to  the  claim  of  the  rightful  owner. 

Code,  s.  1869;  R.  C,  c.  73,  s.  6;  1828,  e.  41,  s.  1. 

924.  Paid  indigent  children,  when.  Whenever  any  moneys  less 
in  amount  than  twenty  dollars  shall  be  paid  into  court  for  indigent 
or  needy  children  for  whom  no  one  will  become  guardian,  upon  sat- 
isfactory proof  of  their  necessities,  the  clerk  may  pay  the  same  upon 
his  own  motion  or  order  to  the  mother  or  other  person  who  has 
charge  of  said  minor  or  to  some  discreet  neighbor  of  said  minor  to 
be  used  for  the  benefit  or  maintenance  of  said  minor.  Such  person 
shall  be  solvent  and  shall  faithfully  apply  any  money  so  paid  to  him 
or  her.  The  clerk  shall  take  a  receipt  from  the  person  to  whom 
the  same  is  paid  and  record  it  in  a  book  entitled  record  of  amounts 
paid  for  indigent  children,  and  the  same  shall  be  a  valid  acquittance 
for  said  clerk. 

1899,  c.  82. 


Note.     For   duties  as  to   process,   see  Civil    Procedure. 
For  duties  as  to  wrecked  or  stranded  property,  sec  Wrecks. 
For  qunlifieation  of  notaries  public,  sec  s.  2348. 
For  liability  in  relation  to  guardian  bonds,  see  ss.  1784,  1785. 


COMMISSIONERS  OF  AFFIDAVITS.  Ch.  14 


CHAPTER  14. 
COWIIVIISSIONERS  OF  AFFIDAVITS. 

(Sections  925—931.) 

925.  Clerks  and  notaries  authorized  to  take  affidavits.   The 

clerks  of  the  supreme  and  superior  courts  and  notaries  iniblic  are 
authorized  to  take  and  certify  affidavits  to  be  used  before  any  jus- 
tice of  the  peace,  judge  or  court  of  the  state;  and  the  affidavits  so 
taken  by  a  clerk  shall  be  certified  under  the  hands  of  the  said  clerk, 
and  if  to  be  used  out  of  the  county  where  taken,  also  under  the  seal 
of  the  court  of  which  they  are  respectively  clerks,  and,  if  by  a  notary, 
under  his  notarial  seal. 
Code,  s.  631. 

926.  Governor  appoints;  term  of  office;  powers.  The  governor 

is  hereby  authorized  to  appoint  and  commission  one  or  more  com- 
missioners in  any  foreign  country,  state  or  republic;  and  in  such 
of  the  states  of  the  United  States,  or  in  the  District  of  Columbia, 
or  any  of  the  territories,  colonies  or  dependencies  as  he  may  deem 
expedient,  who  shall  continue  in  office  for  two  years  from  the  date  of 
their  appointment,  unless  sooner  removed  by  the  governor,  and  shall 
have  authority  to  take  the  acknowledgment  or  proof  of  any  deed, 
mortgage  or  other  conveyance  of  lands,  tenements,  or  hereditaments 
lying  in  this  state,  and  to  take  the  private  examination  of  married 
women,  parties  thereto,  or  any  other  writings  to  be  used  in  this  state. 
And  such  acknowledgment  or  proof,  taken  or  made  in  the  manner 
directed  by  the  laws  of  this  state,  and  certified  by  the  commissioner 
shall  have  the  same  force  and  effect  for  all  pur]30ses,  as  if  the  same 
had  been  made  or  taken  before  any  competent  authority  in  this  state. 
Code,  s.  632. 

927.  How  qualify;  may  administer  oaths,  take  depositions,  affi- 
davits, etc.  Every  conmiissioner  appointed  by  the  governor  afore- 
said, before  he  shall  proceed  to  perform  any  duty  by  virtue  of  this 
chapter,  shall  take  and  subscribe  an  oatli  before  a  juistice  of  the 
peace  in  the  city  or  comity  in  which  such  commissioner  shall  reside 
well  and  faithfully  to  execute  and  perform  all  the  duties  of  such 
commissioner,  according  to  the  laws  of  North  Carolina ;  which  oath 
shall  be  filed  in  the  office  of  the  secretary  of  state.  And  thereupon 
he  shall  have   full  power  and   authority  to  administer   an   oath   or 


927  COMMISSIONERS  OF  AFFIDAVITS.  Cli.   U 

affirmation  to  any  person,  who  shall  be  willing  or  desirous  to  make 
such  oath  or  affirmation  before  him,  and  to  take  depositions  and  to 
examine  the  witnesses  under  any  commission  emanating  from  the 
coiirts  of  this  state,  relating  to  any  cause  depending,  or  to  be  brought 
in  said  courts,  and  every  deposition,  affidavit,  or  affirmation  made 
before  him  shall  be  as  valid  as  if  taken  before  any  projjor  officer  in 
this  state. 
Code,  s.  633. 

928.  Appointments,  where  recorded;  certified  copies  evidence. 

It  shall  be  the  duty  of  the  governor  to  cause  to  be  recorded  by  the 
secretary  of  state  the  names  of  the  persons  who  are  appointed  and 
qualified  as  commissioners,  and  for  what  state,  territory,  county, 
city,  or  town ;  and  the  secretary  of  state,  when  the  oath  of  the  com- 
missioner shall  be  filed  in  his  office,  shall  forthwith  certify  the 
appointment  to  the  several  clerks  of  the  superior  courts  of  the  state, 
who  shall  record  the  certificate  of  the  secretary  at  length ;  and  all 
removals  of  commissioners  by  the  governor,  and  all  commissioners 
whose  commissions  have  expired  by  law,  and  which  have  not  been 
renewed,  shall  be  recorded  and  certified  in  like  manner;  and  a  cer- 
tified copy  thereof  from  the  clerk,  or  a  certificate  of  the  appoint- 
ment or  removal  aforesaid  from  the  secretary  of  state,  shall  be  suffi- 
cient evidence  of  the  appointment  or  removal  of  such  commissioner. 
Code,  s.  634. 

929.  Secretary  of  state  to  prepare  and  publish  list  in  public 

laws.  The  secretary  of  state  shall  prepare  and  cause  to  be  printed 
in  each  volume  of  the  public  laws  a  list  of  all  persons  who  since  the 
preceding  publication  in  the  public  laws  have  been  appointed  com- 
missioners of  affidavits  and  to  tal<e  the  probate  of  deeds  in  any  for- 
eign country  and  in  the  several  states  and  territories  of  the  United 
States  and  in  the  District  of  Columbia,  under  this  chapter,  setting 
forth  the  states,  territory  or  district  or  foreign  countrv  for  wdiich 
such  persons  were  appointed  and  the  dates  of  their  respective 
appointments  and  term  of  office;  and  he  shall  add  to  each  of  said  lists 
a  list  of  all  those  persons  whose  appointments  have  been  renewed, 
revoked,  or  have  resigned,  removed  or  died  since  the  date  of  the  list 
previously  published,  as  far  as  the  same  may  be  known  to  him,  with 
the  dates  of  such  revocation,  resignation,  removal  or  death. 
Code,  3S.  63.5,  636,  637,  639. 

930.  Published  list  conclusive  evidence.  The  list  of  commis- 
sioners so  ]inl)lislic(l  ill  any  volume  <<{  llic  iiul)lic  laws  .shall  be  con- 
clusive evidence  in  all  courts  of  the  ap])ointinents  tlierein  stated, 
and  of  the  dates  thereof. 

Code,  s.  638. 

248 


931  COMMISSIONERS  OF  AFFIDAVITS.  Ck  14 

931.  Clerks  of  courts  of  record  in  other  states,  commissioners 

of  deeds.  Every  clerk  of  a  court  of  record  in  any  other  state  shall 
have  full  power  as  a  commissioner  of  affidavits  and  deeds  as  is  vested 
in  regularly  appointed  conmaissioners  of  affidavits  and  deeds  for  this 
state. 

Code,  s.  640. 


Note.     For  powers  as  to  probate  of  deeds,  see  ss.  989-991. 


CHAPTER  15. 
COMMON  LAW. 

(Section  9.32.) 

932.   Common  law  declared  to  be  in  force.  All  such  parts  of 

the  common  law  as  were  heretofore  in  force  and  use  within  this  state, 
or  so  much  of  tlie  common  law  as  is  not  destructive  of,  or  repugnant 
to,  or  inconsistent  with,  the  freedom  and  independence  of  this  state 
and  the  form  of  government  therein  established,  and  which  has  not 
been  otherwise  provided  for  in  whole  or  in  part,  not  abrogated, 
repealed,  or  become  obsolete,  are  hereby  declared  to  be  in  full  force 
within  this  state. 

Code,   s.  641;   R.   C,  c.  22;    1715,  c.   5,  ss.   2,  3;    1778,  c.   133. 


CHAPTER  16. 
CONSTABLES. 

(Sections  93.3—938.) 

933.    How  elected.    In  each  township  there  shall  lie  a  constable, 
elected  by  the  voters  thereof,  who  shall  hold  his  office  for  two  years. 
Const.,  Art.  IV,  s.  24. 


934  CONSTABLES.  Ch.  16 

934.  Oath  of  office  to  be  taken.  All  constables,  before  they  shall 
be  qualified  to  aet,  ,<liall  take  licforc  the  board  of  county  commis- 
sioners the  oaths  jireseribed  for  ))ub]ic  othcers,  and  also  an  oath  of 
office. 

Code,  s.  642;  R.  C,  c.  24,  s.  8. 
Note.     For  bond  of.  see  .s.  .302. 

935.  Special  constables  appointed  by  justices.  For  the  better 

exccutinii'  any  ])rect'pt  nr  mandate  in  (•.xtranrdinarv  cases,  any  jus- 
tice of  the  peace  may  direct  the  same  in  the  absence  of,  or  for  want 
of  a  constable,  to  any  person  not  beinji'  a  party,  who  shall  be  obliged 
to  execute  the  same,  under  like  penalty  that  any  constable  woTild  be 
liable  to. 

Code,   s.   G45. 

936.  Vacancies  filled  by  board  of  commissioners.   Upon  the 

death,  failure  to  qualify  or  removal  of  any  constable  out  of  the  town- 
ship in  which  he  was  elected  or  appointed  constable,  the  board  of 
commissioners  may  apjioint  another  person  to  fill  the  vacancy,  who 
shall  be  qualified  and  act  until  the  next  election  of  constables. 
Code,  s.  646;   R.  C,  e.  24,  s.  6. 

937.  Powers  and  duties,  ("onstables  are  hereby  invested  with, 
and  may  execute  the  same  power  and  authority  as  they  have  been. 
by  law  heretofore  vested  with,  and  have  executed ;  and,  in  dis- 
charge of  their  duties,  they  shall  execute  all  precepts  and  processes  of 
whatever  nature  to  them  dire<"ted  by  any  justice  of  the  peace  or 
other  competent  authority  within  their  county  or  u]ion  any  bay^ 
river,  or  creek  adjoining  thereto ;  and  the  said  prece]its  and  jirocesses. 
shall  be  returned  to  the  magistrate,  or  other  ]iro]ier  authority. 

Code,   s.   C43;    R.   C,   c.   24,   s.   0. 

938.  Shall  execute  notices  within  justice's  jurisdiction.  Consta- 
bles shall  likewise  excenti',  within  the  places  at'uri'said,  all  notices 
tendered  to  them,  which  are  rccpiired  by  law  to  be  given  for  tiie 
commencement,  or  in  the  prosecution  of  any  cause  before  a  justice 
of  the  ])eace ;  and  the  service  thereof  shall  be  made  by  delivering  a 
copy  to  the  person  to  be  notified  or  by  leaving  a  copy  at  his  usual  ])hice 
of  abotle,  if  in  the  jurisdiction  of  the  constable,  which  sen'ice,  with 
the  time-  thereof,  he  shall  retuni  on  the  notice,  and  such  return  shall 
be  evidence  of  its  service.  On  demand  they  shall  deliver  the  notice  to» 
the  party  at  whose  instance  it  was  issued. 

Code,    s.    644;    R.    C,   c.    24,    s.    10. 
Sop  also.  s.  430. 


2.50 


!):;!)  CONTEMPT.  Cli.  17 

CHAPTEK  17. 
CONTEMPT. 

(Sections  !):j!i— 945.) 

939.  What  constitutes;  common  law  repealed;  appeals;  duty  of 

solicitor  and  attorney  general.   Any  person  guilty  of  any  of  the  fol- 
lowing acts  may  be  punished  for  contempt : 

1.  Disorderly,  contemptuous,  or  insolent  behavior  committed  dur- 
ing the  sitting  of  any  court  of  justice,  in  immediate  view  and  pres- 
ence of  the  covirt,  and  directly  tending  to  interrupt  its  proceedings, 
or  to  impair  the  respect  dne  to  its  authority. 

2.  Behavior  of  the  like  character  committed  in  the  presence  of 
any  referee  or  referees,  while  actually  engaged  in  any  trial  or  hear- 
ing pursuant  to  the  order  of  any  court,  or  in  the  presence  of  any 
jury  while  actually  sitting  for  the  trial  of  a  cause,  or  upon  any 
inquest  or  other  proceeding  authorized  by  law. 

3.  Any  breach  of  the  peace,  noise  or  other  disturbance  directly 
tending  to  interrupt  the  proceedings  of  any  court. 

4.  Wilful  disobedience  of  any  process  or  order  lawfully  issued  by 
any  court. 

5.  Resistance  wilfully  offered  by  any  person  to  the  lawful  order 
or  process  of  any  court. 

6.  The  contumacious  and  unlawful  refusal  of  any  person  to  be 
sworn  as  'a  witness,  or  when  so  sworn,  the  like  refusal  to  answer  any 
legal  and  proper  interrogatory. 

7.  The  publication  of  grossly  inaccurate  reports  of  the  proceed- 
ings in  any  court,  about  any  trial,  or  other  matter  pending  before 
said  court,  made  with  intent  to  misrepresent  or  to  bring  into  contempt 
the  said  court;  but  no  person  can  be  punished  as  for  a  contempt  in 
publishing  a  true,  full  and  fair  report  of  any  trial,  ai'gunicnt,  deci- 
sion or  proceeding  had  in  court. 

8.  Misbehavior  of  any  officer  of  the  court  in  any  official  trans- 
action. 

The  several  acts,  neglects  and  omissions  of  duty,  malfeasances, 
misfeasances,  and  nonfeasances,  above  specified  and  described,  shall 
be  the  only  acts,  neglects  and  omissions  of  duty,  malfeasances,  mis- 
feasances and  nonfeasances  which  shall  be  the  subject  of  contempt  of 
court.  And  if  there  be  any  parts  of  the  common  law  now  in  force 
in  this  state  which  recognized  other  acts,  neglects,  omissions  of  duty, 
malfeasances,  misfeasances  and  nonfeasances  besides  those  specified 
and  described  above,  the  same  are  hereby  repealed  and  annulled. 


939  CONTEMPT.  Ch.   IT 

Any  person  adjudged  to  be  guilty  of  contempt  under  this  section 
shall  have  the  right  to  appeal  to  the  supreme  court  in  tlic  same  manner 
as  is  jjrovided  for  appeals  in  criminal  actions:  Provided,  that  such 
right  of  appeal  shall  not  apply  to  the  contempt  described  and  detincd 
in  subsections  one,  two,  three  and  six:  Provided  further,  that  such 
right  of  appeal  shall  not  apply  to  the  contempt  described  and  defined 
in  subsections  four  and  five ;  if  such  contempt  shall  be  committed  in 
the  presence  of  the  court:  Provided  further,  that  in  all  cases  where 
a  rule  for  contempt  is  issued  by  any  court,  referee  or  other  officer  the 
solicitor  shall  appear  for  the  court  or  other  officer  issuing  the  rule,  and 
in  case  of  appeal  to  the  supreme  court  the  attorney  general  shall  ap- 
pear for  the  court  or  other  officer  by  whom  the  rule  was  issued. 

Code,  s.  648;  1905,  c.  449. 

940.  Punishment.  Punishment  for  contempt  for  matters  set  forth 
in  the  preceding  section  shall  be  by  fine  not  to  exceed  two  himdred 
and  fifty  dollars,  or  imprisonment  not  to  exceed  thirty  days,  or  both, 
in  the  discretion  of  the  court. 

Code,  s.  649. 

941.  Court  may  punish  summarily.  Contempt  committed  in  the 
immediate  vicAv  and  presence  of  the  court  may  be  punished  sum- 
marily, but  the  court  shall  cause  the  particulars  of  the  offense  to  be 
specified  on  the  record,  and  a  copy  of  the  same  to  be  attached  to 
every  committal,  attachment  or  process  in  the  nature  of  an  execution 
founded  on  such  judgment  or  order. 

Code,  s.  650. 

942.  Who  may  punish.  Every  justice  of  the  peace,  referee,  com- 
missioner, clerk  of  the  superior  court,  inferior  court,  criminal  court, 
or  judge  of  the  superior  court,  or  justice  of  the  supreme  court,  or  board 
of  commissioners  of  each  county,  or  corporation  conunissioner,  shall 
have  power  to  punish  for  contempt  while  sitting  for  the  trial  of 
causes  or  engaged  in  official  duties. 

Code,  ss.  651,  652. 

943.  Order  to  show  cause  when  not  committed  in  presence  of 

court.  Whenever  the  contempt  shall  not  have  been  committed  in  the 
inunediate  presence  of  the  court,  or  so  near  as  to  interrupt  its  busi- 
ness, proceedings  thereuiiou  shall  be  by  an  order  directing  the 
offender  to  a]ipear,  within  reasonable  time,  and  show  cause  why 
he  sliould  not  be  attached  for  contempt.  At  the  time  specified  in 
the  order,  the  person  charged  with  the  contempt  may  appear  and 
answer,  and,  if  he  fail  to  appear  and  show  good  cause  why  he  should 
not  be  attached  for  the  contempt  charged,  he  shall  be  punished  as 
provided  in  this  chapter. 

Code,  s.  653. 

252 


!)44  CONTEMPT.  Ch.  17 

944.  What  constitutes  offense  punished  as  for  contempt.  Every 

court  of  record  shall  have  power  to  pimish  as  for  ('(inleiapt,  when 
the  act  complained  of  was  such  as  tended  to  defeat,  impair,  impede, 
or  prejudice  the  rights  or  remedies  of  a  party  to  an  action  then  pend- 
ing in  court — 

1.  Any  clerk,  sheriff,  register,  solicitor,  attorney,  counsellor,  cor- 
oner, constable,  referee,  or  any  other  person  in  any  manner  selected 
or  appointed  to  perform  any  ministerial  or  judicial  service,  for  any 
neglect  or  violation  of  dvity  or  any  misconduct  by  which  the  rights 
or  remedies  of  any  party  in  a  cause  or  matter  pending  in  such  court 
may  be  defeated,  impaired,  delayed  or  prejudiced  for  disobedience 
of  any  lawful  order  of  any  court  or  judge,  or  any  deceit  or  abuse  of 
any  process  or  order  of  any  such  court  or  judge. 

2.  Parties  to  suits,  attorneys,  and  all  other  persons  for  the  non- 
payment of  any  sum  of  money  ordered  by  such  court,  in  cases  where 
execution  can  not  be  awarded  for  the  collection  of  the  same. 

3.  All  persons  for  assuming  to  be  officers,  attorneys  or  counsellors 
of  the  coiirt,  and  acting  as  such  without  authority,  for  receiving  any 
property  or  person  which  may  be  in  custody  of  any  officer  by  virtue 
of  any  order  or  process  of  the  court,  for  unlawfully  detaining  any 
witness  or  party  to  any  suit,  while  going  to,  remaining  at,  or 
returning  from  the  coTirt  where  the  same  may  be  set  for  trial,  or  for 
the  unlawful  interference  with  the  proceedings  in  any  action. 

4.  All  persons  summoned  as  witnesses  in  refusing  or  neglecting 
■to  obey  such  summons  to  attend,  be  sworn,  or  answer,  as  such  witness. 

5.  Parties  summoned  as  jurors  for  impropriety,  conversing  with 
parties  or  others  in  relation  to  an  action  to  be  tried  at  such  court  or 
receiving  communication  therefrom. 

6.  All  inferior  magistrates,  officers  and  tribunals  for  disobedience 
of  any  lawful  order  of  the  court,  or  for  proceeding  in  any  matter  or 
cause  contrary  to  law,  after  the  same  shall  have  been  removed  from 
their  jurisdiction. 

T.  All  other  cases  where  attachments  and  proceedings  as  for  con- 
tempt have  been  heretofore  adopted  and  practiced  in  courts  of  record 
in  this  state  to  enforce  the  civil  remedies  or  protect  the  rights  of  any 
party  to  an  action. 

Code,  ss.  654,  656. 

Note.     Any  person  disobeying  order  of  court,  guilty,  see  s.  0S4. 

945.  Proceedings  as  for  contempt,  how  prosecuted.  Proceed- 
ings as  for  contem]it  shall  be  prosecuted  and  carried  on,  as  provided 
in  provisional  remedies. 

Code,  s.  655. 


Note.     For  refusal  to  pro<luce  books  of  corporations,  see  ss.  1-215  et  seq. 


946  CONVEYANCES— 7.   Consfruclion.  Cb.  18 


CHAPTER  IS. 
CONVEYANCES. 

Sections. 
I.     Construction,  040 —  049 

II.     Officer  not  in  office,  9.i0 —  !).t1 

III.  Bv  husband  and  wife,  9.i2—  959 

IV.  Fraudulent,  9G0—  900 
V.     Assignment  for  creditors,  9G7 —  973 

VI.  Contracts  to  be  written,  974—  978 

VII.  Registration  required,  979—  988 

VIII.  Proljate.  989—1000 

IX  Forms.  1001—1007 

X.  Probates  validated,  1008-10:50 

XI.  Trustees.  lO.'il— 1038 

XII.  Chattel  mortgage,  lO.'iO- 1041 

XIII.  Mortgage  sales,  1042—1044 

XIV.  Kevocation  and  discharge.  1045 — 1046 

I.     Construction. 

946.  Construed  to  be  in  fee,  when.  When  real  estate  shall  be 
conveyed  to  any  person,  the  same  shall  be  held  and  construed  to  be 
a  conveyance  in  fee,  whether  the  word  "heirs"  shall  be  used  or  not, 
unless  such  conveyance  shall,  in  jjlain  and  express  words,  show,  or  it 
sliall  be  plainly  intended  by  the  conveyance  or  some  jjart  thereof,  that 
the  grantor  meant  to  convey  an  estate  of  less  dignity. 

Code,  s.  1280;   1879,  c.  148. 

Note.  Deed  and  registry  of  conveyance  destroyed,  presumed  to  convey  fecsim- 
ple,  see  Evidence,  s.  1602. 

947.  Attornment  unnecessary,  conveyance  of  reversions,  etc. 

Every  conveyance  of  any  rent,  reversion,  or  remainder  in  lands,  tene- 
ments or  hereditaments,  otherwise  sufficient,  shall  be  deemed  complete 
without  attoriunent  by  the  holders  of  particular  estates  in  said  lands: 
Provided,  no  holder  of  a  particular  estate  shall  be  prejudiced  by  any 
act  done  by  him  as  holding  inulcr  his  graiitor,  M'itho\it  notice  of  such 
conveyance. 

Code,  s.  1764;  4  Anne,  c.  16,  s.  9;   1868-9,  c.   156,  s.   17. 

948.  Vagueness  of  description.  Xo  deed  or  other  writing  pur- 
porting to  convey  land  or  an  interest  in  land  shall  be  declared  void 
for  vagnieness  in  the  description  of  the  thing  intended  to  be  granted 
by  rea.son  of  the  use  of  the  word  "adjoining"  instead  of  the  words 
"bounded  by,"  or  for  the  reason  tliat  the  boundaries  given  do  not  go 
entirely   around   the  land   described :   Provided,   it  can   be   made  to 


;»48  COiSTVEYANCES— /.   Construction.  Cli.   IS 

appear  to  the  satisfaction  of  the  jury  that  the  grantor  o\\Tied  at  the 
time  of  the  execution  of  such  deed  or  paper-writing  no  other  land 
which  at  all  corresponded  to  the  description  contained  in  such  deed 
or  paper-writing. 

1801,  c.  465,  s.  2. 

Note.     For  vagueness  of  description  in  pleadings,  see  s.   1G05. 

949.  Conveyances  to  slaves.  Whenever  it  is  made  to  appear  that 
any  gift  or  conveyance  has  been  made  to  any  person,  while  a  slave, 
of  any  lands  or  tenements,  whether  the  same  shall  have  been  con- 
veyed by  deed  or  parol,  and  the  bargainee  or  donee  has  been  placed 
into  actual  possession  of  the  same,  then  and  in  that  case  such  gift  or 
conveyance  shall  have  the  force  and  effect  of  transferring  the  legal 
title  to  the  said  lands  and  tenements  to  such  bargainee  or  donee: 
Provided,  such  possession  shall  have  continued  for  the  term  of  ten 
years  prior  to  the  ninth  day  of  March,  one  thousand  eight  hundred 
and  seventy :  Provided  further,  that  any  absence  from  the  prem- 
ises from  the  first  day  of  May,  one  thousand  eight  hundred  and  sixty- 
one,  to  the  first  day  of  January,  one  thousand  eight  hundred  and 
sixty-six,  shall  not  be  held  as  an  abandonment  or  discontinuance  of 
the  possession :  Provided  also,  that  this  section  shall  not  affect  the 
interest  of  a  bona  fide  purchaser  for  value  from  the  grantor  or  bar- 
gainor of  the  lands  or  tenements  in  dispute. 

Code,  s.  1278;   1869-70,  c.  77. 

II.     Officer  not  in  Office. 

950.  Executed  by  ex-officer,  when.  Whenever  any  sheriff,  cor- 
oner, constable  or  tax  collector  by  virtue  of  his  office  shall  have  sold 
any  real  or  personal  estate,  and  shall  go  out  of  ofiice  before  executing 
a  proper  conveyance  therefor,  he  may  execute  the  same  after  his  term 
of  office  shall  liave  expired. 

Code,  s.  1267;  E.  C,  c.  37,  s.  30. 

951.  Executed  by  successor,  when.  Whenever  any  sheriff',  cor- 
oner, constable  or  tax  collector,  by  virtue  of  his  office  shall  have  sold 
any  real  or  personal  estate,  and  such  officer  shall  die  or  remove 
from  the  state  before  executing  a  proper  conveyance  therefor,  or 
whenever  a  sheriff  or  tax  collector  shall  die  having  a  tax  list  in  his 
hands  for  collection,  and  his  personal  representative  or  surety,  in 
collecting  such  taxes,  shall  make  sale  according  to  law,  his  successor 
in  such  ofiice  shall  execute  conveyances  for  the  property  so  sold  to 
the  person  entitled. 

Code,  s.  1267;   1891,  c.  242. 


Note.     See  also,  s.  290.5. 


952       CONVEYANCES—///.  By  Ilitshand  and  Wife.       Ch.   is 

ITT.     T>Y  Hu.sr.ANi)  axd  Wife. 

952.  Of  wife's  land;  how  proven.  Every  conveyance,  power  of 
attorney  or  other  insfviiiueut  affecting  the  estate,  right  or  title  of  any 
married  woman  in  hinds,  tenements  or  liereditaments  must  be  exe- 
cuted by  such  married  woman  and  her  husband,  and  due  proof  or 
acknowledgment  thereof  must  be  made  as  to  the  husband  and  due 
acknowledgment  thereof  must  be  made  by  the  wife,  and  her  private 
examination,  touching  her  voluntary  assent  to  such  instrument,  shall 
be  taken  separate  and  apart  from  her  husband,  and  such  acknowledg- 
ment or  proof  as  to  the  execution  by  the  husband  and  such  acknowl- 
edgment by  the  wife  and  her  private  examination  shall  be  taken  and 
certified  as  provided  by  law.  Any  conveyance,  power  of  attorney, 
contract  to  convey,  mortgage,  deed  of  tnist  or  other  instrument  exe- 
cuted by  any  married  woman  in  the  manner  by  this  chapter  provided 
and  executed  by  her  husband  also,  shall  be  valid  in  law  to  pass,  bind 
or  charge  the  estate,  right,  title  and  interest  of  such  married  woman 
in  and  to  all  such  lands,  tenements  and  hereditaments  or  other  estate, 
real  or  personal,  as  shall  constitute  the  subject  matter  or  be  emlu-aceil 
within  the  terms  and  conditions  of  such  instrument  or  purport  to  be 
passed,  bound,  charged  or  conveyed  thereby. 

Code,  s.  12.'i6;  1899,  c.  235,  s.  9 ;  C.  C.  P.,  s.  429,  subsec.  6;  1868-9.  c.  277,  s.  15. 
Note.     For  forms  of  private  examination,  see  ss.   100.3,  1004. 

953.  Acknowledgment  by,  at  different  times  and  places;  before 

different  officers.  Tn  all  cases  of  deeds  or  other  instruments  executed 
by  husband  and  wife  and  requiring  registratinn,  the  probate  of  snch 
instruments  as  to  the  husband  and  acknowledgment  and  private  exami- 
nation of  the  wife  may  be  taken  before  different  officers  authorized 
by  law  to  take  probate  of  deeds,  and  at  different  times  and  places, 
whether  both  of  said  officials  reside  in  this  state  or  only  one  in  this 
state  and  the  other  in  another  state  or  country.  And  in  taking  the 
probate  of  such  instruments  executed  by  husband  and  wife,  including 
the  private  examination  of  the  wife,  it  shall  not  be  material  whether 
the  execution  of  the  instnnnent  was  proven  as  to  or  acknowledged  by 
the  husband  before  or  after  the  acknowledgment  and  private  examina- 
tion of  the  wife. 

1899,  c.  235,  s,  9;    1895,  c.   1.36. 

954.  Husband's  deed  registered  though  no  private  examination 

of  wife.  When  an  instrument  pu>r]iorts  to  be  signed  by  a  husband 
and  wife  the  instrument  may  be  ordered  registered,  if  the  acknowl- 
edgment of  the  husband  is  duly  taken,  whether  the  private  examina- 
'  tion  of  the  wife  is  properly  taken  or  not,  but  no  such  instrument 
.shall  be  the  act  or  deed  of  tlu*  wife,  unless  her  jirivate  examination 
is  taken  according  to  law. 
1899,  c.  235,  s.  8;   1901,  c.  637. 

250 


955       CONVEYANCES— ///.%  //M.s'/ja/((/  a)K/  ir//V'.       Ch.    18 

955.  What  officers  can  take  private  examinations  of  femes 

covert.  A\'licn  the  ])rivate  examination  of  any  married  woman  is 
necessary  to  be  talven,  the  oificials  authorized  by  law  to  take  proofs  and 
acknowledg-nients  of  the  execution  of  any  instrument  are  each  and 
every  one  of  them  hereby  empowered  to  take  the  private  examination 
of  any  married  woman  touching  her  free  and  voluntary  assent  to 
the  execution  of  such  instrument  to  which  her  assent  is  or  may  be 
necessary,  and  to  certify  the  fact  of  such  private  examination. 
1899,  c.  235,  s.  6. 

956.  Private  examination  procured  by  fraud,  deed  good  as  to 

innocent  purchaser  for  value.  No  deed  of  conveyance  for  lands  nor 
instriunent  of  writing-  of  whatever  nature  or  kind  which  is  required  or 
allowed  by  law  to  be  registered  executed  by  a  husband  and  wife  since 
the  eleventh  of  March,  one  thousand  eight  hundred  and  eighty-nine, 
or  which  may  be  hereafter  executed  by  a  husband  and  wife,  if  the 
private  examination  of  the  wife  shall  have  been  certified  in  the 
manner  prescribed  by  law,  shall  be  deemed  or  declai-ed  invalid  in 
any  case  because  its  execution  was  procured  by  fraud,  diiress  or  other 
undue  influence,  unless  it  shall  be  shown  that  the  grantee  or  person 
or  persons  to  whom  such  instrument  was  or  shall  be  made  participated 
in  the  fraud,  duress  or  other  undue  influence  or  had  notice  thereof 
before  the  delivery  of  the  instrument,  and  where  the  grantee  or 
person  or  persons  to  whom  such  instriiment  has  been  or  shall  be 
made  is  shown  to  have  had  notice  of  siich  fraud,  duress  or  imdue 
influence  or  to  have  participated  therein,  an  innocent  purchaser  for 
a  valuable  consideration  from  or  under  such  grantee  or  person  to 
whom  such  instrument  has  been  or  shall  be  made  shall  not  be  affected 
by  any  fraud,  duress  or  other  undue  influence  practiced  or  exer- 
cised in  procuring  the  execution  and  acknoAvledgment  of  such  instru- 
ment. 

1889,  c.  389;   1899,  c.  235,  s.   10. 

957.  Under  power  of  attorney  from.  All  conveyances  which  may 
be  made  by  any  ])erson  under  a  power  of  attorney  from  any  feme 
covert  by  her  freely  executed  with  her  husband,  shall  be  valid  to 
all  intents  and  pur|)oses  to  pass  the  estate,  right  and  title  which  said 
feme  covert  may  have  in  such  lands,  tenements  and  hereditaments 
as  are  mentioned  or  included  in  such  ]iower  of  attorney. 

Code,  s.  1257;  R.  C,  c.  37,  s.  11;   1798,  e.  510. 

958.  Wife  need  not  join  in  purchase-money  mortgage.  The  pur- 
chaser of  real  estate  who  does  not  jiay  the  whole  of  the  purchase 
money  at  the  time  when  he  takes  a  deed  for  title,  may  nmko  a  mort- 
gage for  securing  the  ])ayment  of  such  ]>urchase  moliey,  or  such  part 

Rev.  Vol.  I— 13  .  257 


958       CONVEYAIvTCES— 777.  Bij  Hushand  aird  Wife.       Ch.   IS 

thereof  as  may  remain  unpaid,  which  shall  be  good  and  effectual 
against  his  wife  as  well  as  himself,  without  requiring  her  to  join 
in  the  execution  of  such  mortgage  deed. 

Code,   s.   1272;    1868-9,  0.   204. 

959.  By  husband,  wife  a  lunatic.  Every  man  whose  wife  is  a 
lunatic  or  insane  and  is  confined  in  any  asylum  for  lunatics  and  insane 
persons  in  the  state  of  ISTorth  Carolina  shall  have  the  right  to  sell  and 
convey  any  of  his  real  estate  by  deed,  except  his  homestead,  without 
the  signature  and  private  examination  of  his  wife:  Provided,  the 
superintendent  of  the  asylum  in  which  said  feme  covert  shall  be  con- 
fined shall  certify  that  she  is  confined  in  the  asylum  of  which  he  is 
superintendent,  and  that  she  is  of  insane  mind  and  niemory,  whicli 
certificate  shall  be  subscribed  and  sworn  to  before  the  clerli  of  the 
superior  coi\rt  of  the  county  in  which  said  asylum  shall  Ije  situated, 
which  certificate  shall  be  attached  to  the  deed,  together  with  the  cer- 
tificate of  the  clerk,  under  his  hand  and  official  seal.  When  the  deed 
of  a  married  man  whose  wife  is  insane  or  a  lunatic  shall  be  executed, 
probated  and  registered  in  accordance  with  law,  it  shall  convey  all 
the  estate  and  interest  of  the  grantor  in  the  land  con%'eyed  free  and 
exempt  from  the  dower  rights  and  all  other  interests  of  his  wife: 
Provided,  this  section  shall  not  apply  to  the  homestead  of  the  husband. 

1905,  c.  138,  ss.  1,  3. 

Note.     For  probate  of  such  deed,  see  s.  1000. 


Note.     For  other  rights  of  husband  and  wife,   see  Married  Women. 
For  validity  of  marriage  settlements,  see  s.  963. 

IV.  Fkaudulent. 

960.  Void  as  to  creditors.  For  avoiding  and  abolishing  feigned, 
covinous  and  fraudulent  gifts,  gTants,  alienations,  conveyances,  bonds, 
suits,  judgments  and  executions,  as  well  of  lands  and  tenements  as 
of  goods  and  chattels,  which  may  be  contrived  and  devised  of  fraud, 
to  the  purpose  and  intent  to  delay,  hinder  and  defraud  creditors  and 
others  of  their  just  and  lawful  actions  and  debts,  every  gift,  grant, 
alienation,  bargain  and  conveyance  of  lands,  tenements  and  heredita- 
ments, goods  and  chattels,  by  writing  or  otherwise,  and  every  bond, 
suit,  judgment  and  execution,  at  any  time  had  or  made,  to  or  for  any 
intent  or  purpo.se  last  before  declared  and  expressed,  shall  be  deemed 
and  talcen  (only  as  against  that  person,  liis  heirs,  executors,  admin- 
istrators and  assigns,  whose  actions,  debts,  accounts,  damages,  penal- 
ties and  forfeitures,  by  such  covinous  or  fraudulent  devices  and  prac- 
tices aforesaid,  are,  shall,  or  might  be  in  anywise  disturlied,  hin- 
dered, deUiyed  or  defrauded),  to  be  utterly  void  and  of  no  effect; 


iJiiU  CONVEYANCES— /F.  Fraudulent.  Ch.   18 

any  pretense,  color,  feigned  consideration,  expressing  of  use,  or  any 
otlier  matter  or  thing  to  the  contrary  notwithstanding;  and  in  all 
actions  by  creditors  to  set  aside  gifts,  grants,  alienations  and  convey- 
ances of  lands  and  tenements  and  judgments  purporting  to  be  liens  on 
the  same  on  the  ground  that  such  gifts,  grants,  alienations,  convey- 
ances and  judgments  are  feigned,  covinous  and  fraudulent  hereunder, 
■it  shall  be  no  defense  to  the  action  to  allege  and  prove  that  the  lands 
and  tenements  fdleged  to  be  so  conveyed  or  encumbered  do  not  exceed 
in  value  the  homestead  allowed  by  law  as  an  exemption :  Provided, 
that  nothing  in  this  section  shall  be  construed  to  authorize  the  sale 
under  execution  or  other  final  process  obtained  on  any  debt  during 
the  continuance  of  the  homestead,  of  any  interest  in  such  land  as 
may  be  exempt  as  a  homestead. 

Code,  s.  1545;  1893,  c.  78;  R.  C,  e.  50,  s.  1 ;  50  Edw.  III.,  e.  6;  13  Eliz., 
c.  5,  s.  2;   1715,  c.  7,  s.  4. 

961.  When  void  as  to  purchasers.  Every  conveyauce,  charge, 
lease  or  encumbrauee  of  any  lands  or  hereditaments,  goods  and  chat- 
tels, if  the  same  be  made  with  the  actual  intent  in  fact  to  defraud 
such  person  as  hath  purchased  or  shall  purchase  in  fee-simple  or  for 
lives  or  years  the  same  lands  or  hereditaments,  goods  and  chattels, 
or  to  defraud  such  as  shall  purchase  any  rent  or  profit  out  of  the 
same,  shall  be  deemed  utterly  void  against  such  person  and  others 
claiming  mider  him  who  shall  purchase  for  the  full  value  thereof 
the  same  lands  or  hereditaments,  goods  and  chattels,  or  rents  or 
profits  out  of  the  same,  without  notice  before  and  at  the  time  of  his 
purchase  of  the  conveyance,  charge,  lease  or  incumbrance,  by  him 
alleged  to  have  been  made  with  intent  to  defraud;  and  possession 
taken  or  held  by  or  for  the  person  claiming  under  such  alleged  fraudu- 
lent conveyance,  charge,  lease  or  encumbrance  shall  be  always  deemed 
and  taken  as  notice  in  law  of  the  same. 

Code,  s.  1546;  R.  C,  c.  50,  s.  2;  27  Eliz.,  c.  4,  s.  2;   1840,  c.  28,  ss.  1,  2. 

962.  Gifts,  indebtedness  evidence  of  fraud.  No  voluntary  gift 

or  settlement  of  property  by  one  indebted  shall  be  deemed  or  taken 
to  be  void  in  law,  as  to  creditors  of  the  donor  or  settler  prior  to  such 
gift  or  settlement,  by  reason  merely  of  such  indebtedness,  if  prop- 
erty, at  the  time  of  making  such  gift  or  settlement,  fully  sufficient 
and  available  for  the  satisfaction  of  his  then  creditors,  be  retained 
by  such  donor  or  settler;  biit  tlie  indebtedness  of  the  donor  or  settler 
at  such  time  shall  be  held  and  taken,  as  well  with  respect  to  creditors 
prior  as  creditors  subsequent  to  such  gift  or  settlement,  to  be  evidence 
only  from  which  an  intent  to  delay,  hinder  or  defraud  creditors  may 
be  inferred ;  and  in  any  trial  shall,  as  such,  be  submitted  by  the  court 
to  the  jury,  with  such  observations  as  may  be  right  and  ]n'oper. 
Code,  s.  1547;  E.  C,  c.  50,  s.  3;   1840,  c.  28,  ss.  3,  4. 


963  COXVEYANCES— 7F.  Fmmhilcnt.  Ch.   IS 

963.  Marriage  settlements,  as  to  existing  creditors.  Every  con- 
tract and  settlement  of  property  made  by  any  man  and  woman  in  con- 
sideration of  a  marriage  between  them,  for  the  benefit  of  such  man  or 
woman,  or  of  their  issue,  wliether  the  same  be  made  before  or  after 
marriage,  shall  be  void  as  against  creditors  of  the  parties  making 
the  same  respectively,  existing  at  the  time  of  such  marriage,  if  the 
same  is  antenuptial,  or  at  the  time  of  making  such  contract  or  settle- 
ment, if  the  same  is  postnuptial. 

Code,  ss.  1270,  1820;  1871-2,  c.  193,  s.  11;  R.  C,  c.  37,  s.  25;  1785,  c.  238.  s,  2. 
Note.     See  also,  s.  2108. 

964.  Bona  fide  conveyances  to  innocent  purchaser  for  value. 

valid.  Nothing  contained  in  the  preceding  sections  shall  be  construed 
to  impeach  or  make  void  any  conveyance,  interest,  limitation  of  use 
or  uses,  of  or  in  any  lands  or  tenements,  goods  or  chattels,  bona  fide 
made,  upon  and  for  good  consideration,  to  any  per.son  not  having 
notice  of  such  fraud. 

Code,  s.  1548;  R.  C,  c.  50,  s.  4;   13  Eliz.,  c.  5,  s.  6 ;   1785,  c.  7,  s.  6. 

965.  Innocent  purchaser  for  value  protected  against  illegal  con- 
sideration. Xo  conveyance  or  mortgage,  made  to  secure  the  payment 
of  any  debt  or  the  performance  of  any  contract  or  agreement,  shall 
be  deemed  void  as  against  any  purchaser  for  valuable  or  other  good 
consideration  of  the  estate  or  property  conveyed,  sold,  mortgaged  or 
assigTied,  by  reason  that  the  consideration  of  such  debt,  contract  or 
agreement  shall  be  forbidden  by  law,  if  such  purchaser,  at  the  time 
of  his  purchase,  shall  not  have  had  notice  of  the  unlawful  considera- 
tion of  such  debt,  contract  or  agreement. 

Code,  s.   1549;   R.  C,  c.   50,  s.  5;    1842,   c.   70. 

966.  Purchasers  entitled  to  remedy  of  creditors.  Purchasers  of 

estates  previously  conveyed  in  fraud  of  creditors  or  ]iurcliasers  shall 
have  like  remedy  and  relief  as  creditors  might  have  had  Ix^fore  the 
sale  and  purchase. 

Code,  s.   1550;   R.  C,  c.  50,  s.  6. 


Note.     For  fraudulent  trading,  see  s.  2118. 

V.     Assignments  for  Creditohs. 

967.  Debts  mature  on  execution  of;  schedule  of  preferred  debts 

filed.  Upon  the  execution  of  any  voluntai-y  deed  of  trust  or  deed  of 
assignment  for  the  benefit  of  creditors,  all  debts  of  the  maker  thereof 
shall  become  due  and  payable  at  once;  a  schedule  of  all  preferred 
debts  shall  be  filed  under  oath  by  the  assignor  in  the  ofilce  of  the 
clerk  of  the  superior  court  of  the  county  in  wliich  such  assignment 

260 


!m;7       CONVEYANCES— F.  Assignment  for  Creditors.       Ch.   18 

is  made,  stating  the  name  of  preferred  creditors,  the  amount  due 
each,  when  the  debt  was  made,  and  the  circumstances  under  which 
said  debt  was  contracted,  and  said  schedule  shall  be  filed  within  five 
I  lays  of  the  registration  of  such  deed  of  assignment. 

1893,   c.   453. 

968.  Inventories  filed  within  ten  days.   Upon  the  execution  of 

su'/h  deed  of  trust,  the  trustee,  whether  named  therein  or  appointed 
as  hereafter  provided  for,  shall  file  with  the  clerk  of  the  superior 
court  of  the  county  in,  which  said  deed  of  trust  is  registered,  within 
trn  days  after  the  registration  thereof,  an  inventory  under  oath, 
giving  a  complete,  full  and  perfect  account  of  all  property  that  has 
come  into  his  iiands  or  to  the  hands  of  any  person  for  hira,  by  virtue 
of  such  deed  of  trust,  and  whenever  further  property  of  any  kind 
not  included  in  any  previous  return  shall  come  to  the  hands  or 
knowledge  of  such  trustee  he  shall  return  the  same  as  hereinbefore 
prescribed  within  ten  days  after  the  possession  or  discovery  thereof. 
1893,  c.  453,  s.  2. 

969.  Insolvent  trustee  without  bond  removed  by  clerk.   Upon 

the  complaint  of  any  creditor  of  the  assignor  or  trustee  in  such  deed 
of  trust,  alleging  under  oath  that  the  trustee  named  therein  is  insol- 
\ int  and  asking  that  he  be  required  to  give  bond  or  be  removed,  it 
shall  be  the  duty  of  the  clerk  of  the  superior  coirrt  of  the  county 
in  which  such  deed  of  trust  is  registered,  upon  a  notice  of  not  more 
tlian  ten  days  to  such  trustee,  to  hear  said  complaint;  and  if  upon  such 
hearing  said  clerk  shall  be  satisfied  that  such  trustee  is  insolvent, 
ii  shall  be  his  duty  to  remove  such  trustee  and  to  appoint  some  com- 
petent person  to  execute  the  provisions  of  such  deed  of  trust,  unless 
sneh  insolvent  triistee  shall  file  with  said  clerk  a  good  and  sufficient 
liond,  to  be  approved  by  said  clerk,  in  a  sum  double  the  value  of  the 
])iviperty  in  said  deed  of  trust,  payable  to  the  state  of  North  Carolina, 
and  conditioned  that  such  trustee  shall  faithfully  execute  and  carry 
into  effect  the  provisions  of  said  deed  of  trust. 
1893,  c.  453,  s.  3. 

970.  Substituted  trustee  to  give  bond.   Upon  the  removal  of 

sneh  insolvent  trustee  it  shall  be  the  diity  of  the  clerk  to  require 
the  person  appointed  to  execute  the  provisions  of  such  deed  of  trust, 
liefore  entering  upon  his  duties,  to  file  with  the  clerk  a  good  and 
sufficient  bond,  to  be  approved  by  the  clerk  in  a  sum  double  the  value 
of  the  property  in  said  deed  of  trust,  payable  to  the  state  of  North 
<  arolina,  and  conditioned  that  such  person  shall  faithfully  execute 
and  carry  into  effect  the  provisions  of  said  deed  of  trust. 
1893,  C.453,  s.  3. 

261 


971       CONVEYA]\^CES— r.  Assignment  for  Creditors.       Ch.   l.s 

971.  Only  perishable  property  sold  within  ten  days  from  regis- 
tration. It  shall  be  unlawful  for  any  trustee,  whether  uamed  iu  such 
deed  of  trust  or  appointed  by  a  clerk  of  the  superior  court,  to  sell 
any  part  of  the  property  described  in  such  deed  of  trust  within  ten 
days  from  the  registration  thereof,  unless  such  property  or  some  part 
thereof  be  perishable,  in  which  case  he  may  sell  such  property  as  is 
perishable,  according  to  the  powers  conferred  tipon  him  in  said  deed 
of  trust. 

1893,  c.  453,  s.  4. 

972.  Creditors  to  file  verified  statements  with  trustee.  All  cred- 
itors of  the  maker  of  such  deed  of  trust  shall,  before  receiving  pay- 
ment of  any  amount  from  the  said  trtistee,  file  with  the  clerk  of  the 
sui^erior  court  a  statement  under  oath  that  the  amount  claimed  by  him 
is  justly  due,  after  allowing  all  credits  and  ofPsets,  to  the  best  of  his 
knowledge  and  bdief. 

1893,  cr453,  s.  G. 

973.  Trustee  to  file  quarterly  accounts;  close  trust  in  twelve 

months.  The  trustee,  whether  named  in  the  deed  of  trust  or  appointed 
by  a  clerk  of  a  superior  court,  shall  within  three  months  from  the 
registration  of  such  deed  of  trust,  file  with  the  clerk  of  the  superior 
court  of  the  county  in  which  the  same  is  registered  an  account  under 
oath,  stating  in  detail  his  receipts  and  disbursements  and  his  action 
as  trustee,  and  at  each  succeeding  period  of  three  months  he  shall 
file  a  like  account,  and  within  twelve  months  he  shall  file  his  final 
account  of  his  administration  of  his  trust.  The  clerk  of  the  superior 
court  shall  have  power  upon  good  cause  sho^^ni  to  extend  the  time 
within  which  the  quarterly  and  final  accounts  herein  provided  for  are 
to  be  filed. 

1893,  c.  453,  s.  5. 


XoTE.     For  violation  of  duty  by  trustee,  see  s.  3689. 

VI.     Contracts  to  be  Wrtttex. 

974.  Charging  executor  personally,  or  one  with  debt  of  another. 

'So  action  shall  be  brought  whereby  to  charge  an  e-xecutor,  administra- 
tor or  collector  upon  a  special  promise  to  answer  damages  out  of  his 
own  estate  or  to  charge  any  defendant  upon  a  special  promise  tn 
answer  the  debt,  default  or  miscarriage  of  another  person,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or  some  mem- 
orandum, or  note  thereof  shall  be  in  writing,  and  signed  by  the  party 
charged  therewith  or  some  other  person  theretinto  by  him  hnvfully 
authorized. 

Code,  s.  1552;  R.  C,  c.  50,  a.  15;   1826,  c.  10;   29  Cliurles  II.,  c.  3,  s.  4. 

262 


975       CONVEYANCES— F7.   Contracts  to  be  Written.       Ch.  18 

975.  With  Indians.  All  contracts  and  agreements  of  every  de- 
scription made  with  any  Chei'okee  Indian,  or  any  person  of  Cherokee 
Indian  blood  within  the  second  degree,  for  an  amount  equal  to  ten 
dollars  or  more,  shall  be  void,  unless  some  note  or  memorandum 
thereof  be  made  in  writing  and  signed  by  such  Indian  or  person  of 
Indian  blood,  or  some  other  person  by  him  authorized,  in  the  pres- 
ence of  two  Avitnesses,  who  shall  also  subscribe  the  same. 

Code,   s.   1553;   R.  C,  c.  50,  s.   16. 

976.  For  sale  or  lease  of  land.  All  contracts  to  sell  or  convey 
any  lands,  tenements  or  hereditaments  or  any  interest  in  or  concern- 
ing them,  and  all  leases  and  contracts  for  leasing  land  for  the  purpose 
of  digging  for  gold  or  other  minerals,  or  for  mining  generally,  of 
whatever  duration ;  and  all  other  leases  and  contracts  for  leasing 
lands,  exceeding  in  duration  three  years  from  the  making  thereof, 
shall  be  void  unless  said  contract,  or  some  memorandum  or  note 
thereof  be  put  in  writing  and  signed  by  the  party  to  be  charged 
therewith,  or  by  some  other  person  by  him  thereto  lawfiilly  author- 
ized. 

Code,  ss.  1554,  1743;  R.  C.  c.  50,  s.  11;  29  Ch.  II.,  c.  3,  ss.  1,  2,  3;   1819, 
e.   1016;    1844,  e.   44;    1868,   e.   156,   ss.   2,   33. 
Note.     See  s.  878. 

977.  Sales  of  liquors  on  credit.  No  retail  liquor  dealer  shall  sell 
to  any  person,  on  credit,  liquors  to  a  greater  amount  than  ten  dollars, 
unless  the  person  credited  sign  a  book  or  note,  in  the  presence  of  a 
witness,  in  acknowledgTiient  of  the  debt,  under  the  penalty  of  losing 
the  money  so  credited ;  and  in  any  action  brought  for  recovery  of 
such  debt  the  matter  of  defense  allowed  by  this  section  may  be  set 
up  in  the  answer  and  given  in  evidence. 

Code,  s.  1555;  R.  C,  e.  79,  s.  4;  1798,  c.  501,  s.  6. 

978.  Promise  to  revive  debt  of  bankrupt.  No  promise  to  pay  a 

debt  discharged  by  any  decree  of  a  court  of  competent  jurisdiction, 
in  any  proceeding  in  bankruptcy,  shall  be  received  in  evidence  unless 
such  promise  shall  be  in  writing  and  signed  by  the  party  to  be  charged 
therewith. 
1899,  c.  57. 


Note.     For  requirement  that  new  promise  bars  statute  of  limitations,  see  Civil 
Procedure,  s.  371. 

VII.     Registration  Required. 

979.    Probate  and  registration  supplies  livery  of  seizin.    All 

deeds,  cdntracts  m-  leases,  before  registration,  except  those  executed 
prior  to  January  first,  one  thousand  eight  hundred  and  seventy,  shall 


979        CONVEYAXCES— T//.  liegistmlion  Eequired.       Ch.   18 

be  acknowledged  by  the  grantor,  lessor  or  the  person  executing  the 
same,  or  their  signatures  proven  on  oath  by  one  or  more  witnesses  in 
the  manner  prescribed  by  law,  and  all  deeds  executed  and  registered 
according  to  hnv  shall  be  valid,  and  pass  title  and  estates  without 
livery  of  seizin,  attornment  or  other  ceremony  whatever. 

Code,  s.  1245;  1885,  c.  147,  s.  3;  29  Ch.  II.,  c.  3;  R.  C,  c.  37,  s.  1;   1715.  e.  7: 
1756,  c.  58,  s.  3;  1838-9,  e.  33;  1905,  c.  277. 

980.  Conveyances,  contracts  to  convey,  and  leases  of  land. 

No  conveyance  of  land,  or  contract  to  convey,  or  lease  of  land  for 
more  than  three  years  shall  be  valid  to  pass  any  property,  as  against 
creditors  or  purchasers  for  a  valuable  consideration,  from  the  donor, 
bargainor  or  lessor,  but  from  the  registration  thereof  within  the 
county  where  the  land  lieth :  Provided,  the  provisions  of  this  section 
shall  not  a]iply  to  contracts,  leases  or  deeds  executed  prior  to  !March 
first,  one  thousand  eight  hundred  and  eighty-five,  until  the  first 
day  of  January,  one  thousand  eight  hundred  and  eighty-six ;  and 
no  purchase  from  any  such  donor,  bargainor  or  lessor  shall  avail 
or  pass  title  as  against  any  unregistered  deed  executed  prior  to  the 
first  day  of  December,  one  thousand  eight  hundred  and  eighty-five, 
when  the  person  holding  or  claiming  under  such  Tmregistered  deed 
shall  be  in  the  actual  possession  and  enjoyment  of  such  land,  either 
in  person  or  by  his  tenant  at  the  time  of  the  execution  of  such  second 
deed,  or  when  the  person,  claiming  \mder  or  taking  such  second  deed, 
had  at  the  time  of  taking  or  purchasing  under  such  deed  actual  or 
constructive  notice  of  such  unregistered  deed,  or  the  claim  of  the 
per.son   holding   or   claiming   thereunder. 

Code,  s.  1245:   1885,  c.  147,  s.  1. 

981.  Deeds  executed  prior  to  January  first,  one  tfiousand  eight 

hundred  and  seventy.  Any  person  holding  any  unregistered  deed 
or  claiming  title  tliercunder,  executed  prior  to  the  first  day  of  Janu- 
ary, one  thousand  eight  hundred  and  seventy,  may  have  the  same 
registered  without  proof  of  the  execution  thereof:  Provided,  that  such 
person  .shall  make  an  affidavit  before  the  officer  having  jurisdiction 
to  take  probate  of  such  deed,  that  the  grantor,  bargainor  or  maker 
of  such  deed,  and  the  witnesses  thereto  are  dead  or  can  not  he  found, 
and  that  he  can  not  make  proof  of  their  handwriting:  Provided,  that 
it  shall  also  be  made  to  appear  by  affidavit  that  affiant  Ixdieves  sucii 
deed  to  be  a  bona  fide  deed  and  executed  by  the  grantor  therein  named  : 
And  ))r()vided  further,  that  this  section  shall  not  interfere  with  vested 
rights  nor  shall  a  deed  so  admitted  lo  record  be  used  as  evidence  in  any 
action  now  pending.  Said  affidavit  shall  be  written  ujion  or  attached 
to  such  deed,  and  the  same,  together  witli  such  deed,  shall  be  entitled 
to  registration  in  the  same  manner  and  with  tlie  same  effect  as  if 
proven  in  the  manner  prescribed  by  law  for  otlier  deeds. 
1885,  c.  147,  s.  2;  1905,  c.  277. 

264 


. 


982       CONVEYAXCES— 777.  Begistration  Required.       Ch.   IS 

982.  Mortgages  and  deeds  of  trust.  jSTo  deed  of  trust  or  mort- 
gage for  real  or  personal  estate  shall  be  valid  at  law  to  pass  any  prop- 
erty as  against  creditors  or  jjurcliasers  for  a  valuable  consideration 
from  the  donor,  bargainor  or  mortgagor,  but  from  the  registration 
of  such  deed  of  trust  or  mortgage  in  the  county  where  the  land 
lieth ;  or  in  case  of  personal  estate  where  the  donor,  bargainor  or  mort- 
gagor resides;  or  in  case  the  donor,  bargainor  or  mortgagor  shall 
reside  out  of  the  state,  then  in  the  county  where  the  said  personal 
estate,  or  some  part  of  the  same,  is  situated ;  or  in  case  of  choses  in 
action,  where  the  donee,  bargainee  or  mortgagee  resides. 

Code,  s.  1254;  E.  C,  c.  37,  s.  22;   1829,  c.  20. 

983.  Conditional  sales  of  personal  property.    All  conditional 

sales  of  personal  property  in  which  the  title  is  retained  by  the  bar- 
gainor, shall  be  reduced  to  writing  and  registered  in  the  same  manner, 
for  the  same  fees  and  with  the  same  legal  effect  as  is  provided  for 
chattel  mortgages,  in  the  county  where  the  purchaser  resides,  or,  in 
case  the  purchaser  shall  reside  out  of  the  state,  then  in  the  county 
where  the  said  personal  estate  or  some  part  thereof  is  situated ;  or  in 
case  of  choses  in  action,  wliere  the  donee,  bargainee  or  mortgagee 
resides. 

Code,  s.  1275;   1891,  c.  240;   1883,  c.  342. 

984.  Conditional  sales  of  railroad  property.  Whenever  any  rail- 
road equipment  and  rolling  stock  shall  hereafter  be  sold,  leased  or 
.loaned  on  the  condition  that  the  title  to  the  same,  notwithstanding 
the  possession  and  use  of  the  same  by  the  vendee,  lessee,  or  bailee, 
shall  remain  in  the  vendor,  lessor  or  bailor  until  the  terms  of  the 
contract,  as  to  the  payment  of  the  installments,  amounts  or  rentals 
payable,  or  the  performance  of  other  obligations  thereunder,  shall 
have  been  fully  complied  with ;  such  contract  shall  be  invalid  as  to 
any  subsequent  judgment  creditor,  or  any  subsequent  purchaser  for  a 
valuable  consideration  without  notice,  unless — 

1.  The  same  shall  be  evidenced  by  ^vriting  didy  acknowledged 
before  some  person  authorized  to  take  acknowledgments  of  deeds. 

2.  Such  writing  shall  be  registered  as  mortgages  are  registered,  in 
the  office  of  the  register  of  deeds  in  each  county  in  which  such  vendee, 
lessee  or  bailee  does  business. 

3.  Each  locomotive  or  car  so  sold,  leased  or  loaned  shall  have  the 
name  of  the  vendor,  lessor,  or  bailor,  or  the  assignee  of  such  vendor, 
lessor  or  bailor  plainly  marked  upon  both  sides  thereof,  followed  by 
the  word  owner,  lessor,  bailor  or  assignee,  as  the  case  may  be. 

This  section  shall  not  apply  to  or  invalidate  any  contract  made 
before  the  twelfth  day  of  March,  one  thovisand  eight  hundred  and 
eighty-three. 

Code,  s.  2006;  1883,  c.  416. 

265 


985       CONVEYANCES— r//.  Begistration  Required.       Ch.   IS  _ 

985.  Marriage  settlements.    All  marriage  settlements  and  other  " 
marriage   contracts,    whereby    any   money   or   other   estate   shall    be 
secured  to  the  wife  or  husband,  shall  be  proved  or  acknowledged  and 
registered  in  the  same  manner  as  deeds  for  lands,  and  shall  be  valid 
against  creditors  and  purchasers  for  value  only  from  registration. 

Code,  ss.  1269,  1270,  1821;  1885,  c.  147;  R.  C,  e.  37,  ss.  24,  25;  1785,  c.  238; 
1871-2,  c.  193,  s.  12. 

986.  Deeds  of  gift.  All  deeds  of  gift  of  any  estate  of  whatever 
nature  shall  within  two  years  after  tlie  making  thereof  be  proved  in 
due  form  and  registered,  or  otherwise  shall  be  void,  and  shall  be 
good  against  creditors  and  purchasers  for  value  only  from  the  time 
of  registration. 

Code,  s.  1252;  1885,  c.  147;  E.  C,  e.  37,  s.  18;  1789,  c.  315,  s.  2. 

987.  Powers  of  attorney.  Every  power  of  attorney,  wherever 
made  or  concerning  whatsoever  matter,  may,  on  acknowledgment  or 
proof  of  the  same  before  any  competent  official,  be  registered  in  the 
county  wherein  the  property  or  estate  which  it  concerns  is  situate, 
if  such  power  of  attorney  relate  to  the  conveyance  thereof ;  if  it  does 
not  relate  to  the  conveyance  of  any  estate  or  property,  then  in  the  ■ 
county  in  which  the  attorney  resides  or  the  business  is  to  be  trans- 
acted. 

■    Code,   s.   1249;    1899,  c.   235.   s.   15. 

988.  Certified  copies  may  be  registered;  used  as  evidence.  A 

duly  certified  copy  of  any  deed  or  writing,  required  or  allowed  to  be- 
registered,  may  be  registered  in  any  county;  and  the  registry  or  duly 
certified  copy  of  any  deed  or  wi-iting  when  registered  in  the  county 
where  the  land  is  situate  may  be  given  in  evidence  in  any  court  of  the 
state. 

Code,  s.  1253;   1858-9,  e.  18,  s.  2. 

Note.     For  records  of  court  to  prove  deed,  see  ss.  337,  338.  I 

VIII.     Peobatk. 

989.  Before  what  officers.  The  execution  of  all  deeds  of  convey- 
ance, contracts  to  buy,  sell  or  convey  lands,  mortgages,  deeds  of  trust, 
assignments,  powers  of  attorney,  covenants  to  stand  seized  to  the 
use  of  another,  leases  for  more  than  three  years,  releases  and  any 
and  all  instruments  and  writings  of  whatsoever  natuirc  and  kind 
which  are  required  or  allowed  by  law  to  be  registered  in  the  office 
of  the  register  of  deeds  or  which  may  hereafter  be  required  or 
allowed  by  law  to  be  so  registered,  may  be  proven  <ir  acknowledged 
before  any  one  of  the  following  officials  of  this  state:  The  several 
justices   of  the   su.preme   cotirt,    the   several   judges  of   the   sujicrior 


989  CONVEYAN'CES— y/Z7.  Probate.  Ch.   18 

court,  conunissioners  of  affidavits  appointed  by  the  governor  of  this 
state,  the  clerk  of  the  supreme  court,  the  several  clerks  of  the  superior 
court,  the  deputy  clerks  of  the  superior  courts,  the  several  clerks  of 
the  criminal  courts,  notaries  public,  and  the  several  justices  of  the 
peace. 

Code,  s.  1246;  1899,  c.  235;  1895,  e.  161,  ss.  1,  3;  1897,  c.  87. 

990.  Before  what  nonresident  officers.  The  execution  of  all  such 

instruments  and  writings  as  are  permitted  or  required  by  law  to  be 
registered  may  be  proven  or  acknowledged  before  any  one  of  the 
following  officials  of  the  United  States,  of  the  District  of  Columbia, 
of  tie  several  states  and  teiTitories  of  the  United  States,  of  countries 
under  the  dominion  of  the  United  States  and  of  foreign  countries: 
Any  judge  of  a  court  of  record,  any  clerk  of  a  court  of  record,  any 
notary  piiblic,  any  mayor  or  chief  magistrate  of  an  incorporated 
town  or  city,  any  ambassador,  minister,  consul,  vice-consid,  vice-consul 
general,  or  commercial  agent  of  the  United  States.  And  the  execu- 
tion of  all  such  instruments  may  be  proven  or  acknowledged  before 
any  justice  of  the  peace  of  any  state  or  territory  of  the  United  States. 
If  the  proof  or  acknowledgment  of  the  execution  of  an  instrument  be 
had  before  a  justice  of  the  peace  of  any  state  of  the  United  States 
other  than  this  state  or  of  any  territory  of  the  United  States,  the  cer- 
tificate of  such  justice  of  the  peace  shall  be  accompanied  by  a  certifi- 
cate of  the  clerk  of  some  court  of  record  of  the  co\inty  in  which  such 
justice  of  the  peace  resides,  which  certificate  of  the  clerk  shall  be 
under  his  hand  and  official  seal,  to  the  effect  that  such  justice  of  the 
peace  was  at  the  time  the  certificate  of  such  justice  bears  date  an  act- 
ing justice  of  the  peace  of  snch  county  and  state  or  territory  and  that 
the  genuine  signature  of  such  justice  of  the  peace  is  set  to  such  certifi- 
cate. 

1899,  c.  235,  s.  5;  1905,  c.  451. 

Note.     See  Commissioners  of  Affidavits;  Notaries  Public. 

991.  By  commissioner  appointed  by  clerl<,  maker  nonresident. 

Whenever  it  shall  appear  to  the  clerk  of  the  siiperior  court  of  any 
county  that  any  person  nonresident  of  this  state  is  desirous  of 
acknowledging  a  power  of  attorney,  deed  or  other  conveyance  touch- 
ing any  real  estate  situated  in  the  county  of  said  clerk,  he  shall  issue 
a  commission  to  a  commissioner  for  receiving  such  acknowledgment, 
or  taking  such  proof,  and  said  commissioner  may  likewise  take  the 
acknowledgment  and  privy  examination  of  a  married  woman  sepa- 
rate and  apart  from  her  husband,  touching  her  assent  to  any  power  of 
attorney,  deeds  or  other  conveyances,  touching  real  estate  in  said 
county.  The  commissioner  shall  make  certificate  of  the  acknowl- 
edgments or  proof  and  privy  examination  made  by  him,  and  shall 
return  the  same  to  the  clerk  of  the  superior  court,  whereupon  he  shall 

267 


991  CONVEYAXCES— T///.  Prooate.  Ch.   IS 

adjudge  that  such  conveyance,  power  of  attorney  or  other  instrument 
is  duly  acknowledged  or  proved,  and  that  such  examination  is  in  due 
form,  and  shall  order  the  same  to  be  registered. 
Code,  s.  1258;   1869-70,  c.  ISo. 

992.  Before  justice  of-  county  other  than  where  land  lies; 

clerk's  certificate.  If  the  proof  <if  acknuwlcdgmont  of  any  instru- 
ment shall  be  hud  before  a  justice  of  the  jieace  nf  any  county  (ithcr 
than  the  county  in  which  such  instrument  is  offered  for  registration, 
the  certiticate  of  proof  or  acknowledgiuent  made  by  such  justice  of 
the  peace  shall  be  accompanied  by  the  certificate  of  tlie  clerk  of  the 
superior  court  of  the  county  in  which  said  justice  of  the  peace  resides, 
that  such  justice  of  the  peace  was  at  the  time  his  certiticate  bears 
dat«  an  acting  justice  of  the  peace  of  such  county,  and  that  such 
justice's  genuine  signature  is  set  to  his  certificate.  The  certiticate 
of  the  clerk  of  the  superior  court  herein  provided  for  sliall  be  under 
his  hand  and  oificial  seal. 

1899,  c.  235,  s.  4. 

993.  Seal  of  probating  officer,  when.  When  proof  or  acknowl- 
edgment of  the  execution  of  imj  instrument  by  any  maker  of 
such  instrument,  whether  a  married  woman  or  other  jierson  or 
corporation,  is  had  before  any  official  authorized  by  law  to  take  such 
proof  and  acknowledgment  and  such  official  has  an  official  seal  he 
shall  set  his  official  seal  to  his  certificate.  If  the  official  before  whom 
the  instrument  is  proven  or  acknowledged  has  no  official  seal  he 
shall  certify  under  his  hand,  and  his  private  seal  shall  not  bo  essential. 
When  the  instrument  is  proven  or  acknowledged  before  the  clerk  or 
deputy  clerk  of  the  superior  court  of  the  county  in  which  the  instru- 
ment is  to  be  registei-ed  the  official  seal  shall  not  be  necessary. 

1899,  c.  235,  s.  8. 

994.  Taken  anywhere.  The  execution  of  any  and  all  instruments 
required  or  jiermitted  by  law  to  be  registered  may  be  proven  or 
acknowledged  before  any  of  the  officials  authorized  by  law  to 
take  probates,  regardless  of  the  county  in  this  state  in  which  the 
subject  matter  of  the  instrument  may  be  situated  and  regardless  of 
the  domicile,  residence  or  citizenship  of  the  per.son  who  executes 
such  instrument,  or  of  the  domicile,  residence  or  citizenship  of  the 
person  to  whom  or  for  whose  benefit  such  instriunent  may  be  made. 

189!),  c.  23.5,   s.   13. 

995.  When  clerk  is  a  party.  All  instruments  required  or  jier- 
mitted  by  law  to  be  registered  to  whicii  clerks  of  the  superior  court 
are  parties  or  in  which  such  clerks  are  interested,  may  be  ]>rovcd  or 
ackiiowledgeil   and  ])rivy  cx.Tmination  of  any  uuirried  woman,  when 


995  CONVEYANCES— 17/7.  Prohate.  Ch.   18 

necessary,  taken  before  any  justice  of  the  peace  of  the  county  of  said 
clerk,  which  clerk  may  then,  under  his  hand  and  otHcial  seal,  certify 
to  the  genuineness  thereof,  or  before  any  judge  of  the  superior  court 
or  justices  of  the  supreme  court,  and  tlie  said  instrument  probated 
and  ordered  to  be  registered  by  such  judge  or  justice  in  like  manner 
as  is  provided  by  law  for  probates  by  clerks  of  the  superior  court 
in  other  cases. 

1891,  c.  102;   1893,  c.  3. 

Note.     See  proviso,  s.  999. 

996.  Subscribing  witness,  or  maker  subpoenaed,  when.    The 

grantee  or  other  party  to  an  instruuK'nt  required  or  allnwed  by  law 
to  be  registered  may  at  his  own  expense  obtain  from  the  clerk  of  the 
superior  court  of  the  county  in  which  the  instrument  is  required  to 
be  registered  a  subpoena  for  any  or  all  of  the  makers  of  or  subscribing 
witnesses  to  such  instrument,  commanding  such  maker  or  subscril> 
ing  witness  to  appear  before  such  clerk  at  his  office  at  a  certain  time 
to  give  evidence  concerning  the  execution  of  the  instrument.  Such 
subpoena  shall  be  directed  to  the  sheriff  of  the  county  in  which  the 
person  upon  whom  it  is  to  be  served  resides.  If  any  person  refuses 
to  obey  such  subpoena  he  shall  be  liable  to  a  fine  of  forty  dollars  or 
to  be  attached  for  contempt  by  the  clerk,  upon  its  being  made  to 
appear  to  the  satisfaction  of  the  clerk  that  such  disobedience  was 
intentional,  under  the  same  rules  of  law  as  are  prescribed  in  the  cases 
of  other  defaulting  witnesses. 

Code,  s.  1268;  1899,  c.  235,  s.  16;  1897,  e.  28. 

997.  Proof  of  witness'  handwriting,  when.   If  an  instrument 

required  or  permitted  by  law  to  be  registered  have  a  subscribing  wit- 
ness and  such  witness  be  dead  or  out  of  the  state,  or  of  \msound 
mind,  the  execution  of  the  same  may  be  proven  before  any  official 
authorized  to  take  the  proof  and  acknowledgment  of  such  instrument 
by  proof  of  the  handwriting  of  such  subscribing  witness  or  of  the 
handwriting  of  the  maker,  but  this  shall  not  be  proof  of  the  execution 
of  instruments  by  married  women. 
1899,   e.   235,   s.    12. 

998.  Proof  of  maker's  handwriting,  when.  If  any  instrument 

required  or  pcnnitted  by  law  tr>  lie  registered  have  no  subscribing  wit- 
ness, the  execution  of  the  same  may  be  proven  before  any  official 
authorized  to  take  the  proof  and  acknowledgment  of  such  instrument 
by  proof  of  the  handwriting  of  the  maker,  but  this  shall  not  aii]5ly  to 
proof  of  execution  of  instnunents  by  married  women. 

1899,  c.   235,   s.    11. 

999.  Clerk  or  deputy  must  pass  on  certificate  of  other  officer. 

Whenever   the    proof   or    ncknowledgineut   of    tlic    rxccutinn    of    any 

269 


999  CONVEYANCES— F77/.  Prohaie.  Cli.  is 

instniment,  required  or  permitted  by  law  to  be  registered,  is  had 
before  any  other  official  than  the  clerk  or  depiity  clerk  of  the  superior 
court  of  the  county  in  which  such  instrTiment  is  offered  for  registra- 
tion, the  clerk  or  deputy  clerk  of  the  superior  court  of  the  county  in 
which  the  instrument  is  offered  for  registration  shall,  before  the  same 
shall  be  registered,  examine  the  certificate  or  certificates  of  proof  or 
aclvnowledgmeiit  appearing  upon  the  instrument,  and  if  it  shall  appear 
that  the  instrument  has  been  duly  proven  or  acknowledged  and  the 
certificate  or  certificates  to  that  effect  are  in  due  form  he  shall  sn 
adjudge  and  shall  order  the  instrument  to  be  registered  together  with 
the  certificates :  Provided,  that  if  the  clerk  of  the  superior  court  is  a 
party  to  or  interested  in  s\ich  instruinent  such  adjudication  and 
order  of  regisrration  shall  be  made  by  his  deputy  or  by  the  clerk 
of  the  superior  court  of  some  other  county  of  this  state,  or  by  some 
justice  of  the  supreme  court  of  this  state  or  some  judge  of  the 
superior  court  of  this  state :  Provided  further,  the  aeknowledgnnenf 
of  such  instruments  may  also  be  made  before  a  justice  of  the  peace  of 
said  county,  and  the  adjudication  of  the  sufficiency  of  the  certificate 
of  said  justice  may  be  made  by  said  clerk  or  his  deputy. 
1899,  c.  235,  s.  7;  1905,  c.  414. 

1000.  Of  deed  by  husband  whose  wife  is  insane.  When  a  deed 

executed  by  a  married  man  whose  wife  is  insane  or  a  lunatic,  together 
with  the  certificate  of  the  superintendent  of  the  asylum  and  the  certifi- 
cate of  the  clerk  taken  as  prescribed  in  section  nine  hundred  and  fifty- 
nine,  shall  be  offered  for  jirobate  before  the  clerk  of  the  superior  court 
of  the  county  in  which  the  land  conveyed  is  situated,  and  the  execution 
of  such  deed  shall  be  acknowledged  or  proved,  the  clerk  shall  adjiidge 
whether  the  certificates  of  the  superintendent  and  the  clerk  are  in  due 
form,  and  if  adjudged  to  be  in  due  form  he  shall  order  the  registra- 
tion of  the  deed  and  certificates. 
1905,  c.  138,  s.  2. 

IX.     Forms. 

1001.  Adjudication  and  order  of  registration.  The  form  of  adju- 
dication and  order  of  registration  required  by  section  nine  hundred 
and  ninety-nine  shall  be  substantially  as  follows: 

North  Carolina,    County. 

The  foregoing  (or  annexed)  certificate  of  (here  give  name  ami 
official  title  of  the  officer  signing  the  certificate  passed  upon)  is 
adjudged  to  be  correct.  Let  the  instruinent  and  the  certificate  be 
registered. 

This day  of ,  A.  D 


1899,  e.  23.5,  s.  7.  (Signature  of  officer.) 


1002  CONVEYANCES— 7X.  Fonxs.  Ch.  18 

1002.  Acknowledgment  by  grantor.  Where  the  instrument  shall 
be  acknowledged  by  the  grantor  or  maker,  the  form  of  acknowledg- 
ment shall  be  in  substance  as  follows : 

North  Carolina,    County. 

I  (here  give  the  name  of  the  official  and  his  official  title),  do  hereby 
certify  that  (here  give. the  name  of  the  grantor  or  maker)  personally 
appeared  before  me  this  day  and  acknowledged  the  due  execution  of 
the  foregoing  instrument.  Witness  my  hand  and  (where  an  official 
seal  is  reqiiired  by  law)  official  seal  this  the  .  .  .  day  of (year). 

(Official  seal.)  

(Signature  of  officer.) 

1003.  Private  examination  of  wife.  When  an  instrument  purports 
to  be  signed  by  a  married  woman,  the  form  of  certificate  of  her 
acknowledgment  and  private  examination  before  any  officer  aiithor- 
ized  to  take  the  same,  shall  be  in  substance  as  follows : 

North  Carolina,    County. 

I  (here  give  name  of  the  official  and  his  official  title),  do  hereby 
certify  that  (here  give  name  of  the  married  woman  who  executed 
the  instrument),  wife  of  (here  give  husband's  name),  personally 
appeared  before  me  this  day  and  acknowledged  the  due  execution 
of  the  foregoing  (or  annexed)  instrument;  and  the  said  (here  give 
married  woman's  name),  being  by  me  privately  examined,  separate 
and  apart  from  her  said  husband,  touching  her  voluntary  execution 
of  the  same,  doth  state  that  she  signed  the  same  freely  and  volun- 
tarily, without  fear  or  compulsion  of  her  said  husband  or  any  other 
person,  and  that  she  doth  still  voluntarily  assent  thereto. 

Witness  my  hand  and  (when  an  official  seal  is  required  by  law) 
official  seal,  this.  .  .  .  (day  of  month),  A.  D (year). 

(Official  seal.)  

(Signature  of  officer.) 

1899,  c.  235,  s.  8;    1901,  c.  637. 

1004.  Private  examination  and  acl<nowledgment  by  iiusband. 

Where  the  instrument  shall  be  acknowledged  by  both  husband  and 
wife  or  by  other  grantor  before  the  same  officer  the  form  of  acknowl- 
edgment shall  be  in  substance  as  follows: 

North  Carolina,    County. 

I  (here  give  name  of  official  and  liis  official. title),  do  hereby  certify 
that  (here  give  name  of  the  grantors  whose  acknowledgment  is  being 
taken)  personally  appeared  before  me  this  day  and  acknowledged 
the  due  execution  of  the  foregoing  (or  annexed)  instrument,  and  the 
said   (here  give  name  of  the  married  woman  or  women),  wife   (or 


1004  CONVEYANCES— 7.Y.  Forms.  Ch.   1- 

wives)  of  (hero  give  name  of  husband  oi-  husbands),  being  by  nie 
privately  examined,  separate  and  apart  from  her  said  husband,  toucli 
ing  her  vohintMry  execution  of  the  same,  doth  state  that  she  signed 
the  same  freely  and  voluntarily,  without  fear  or  compulsion  of  her 
said  husband  or  any  other  person,  and  that  she  doth  still  voluntarily 
assent  thereto. 

AA'itness  my  hand  and  (when  an  official  seal  is  required  by  law) 
official  seal,  this.  .  .  .  (day  of  month),  A.  D (year). 

(Official  seal.)  

(Signature  of  officer.) 

1899,  c.  235,  s.  8;   1901,  c.  299. 

1005.  Corporate  conveyances.  The  following  forms  of  probat, 
for  deeds  and  other  cou\eyances  executed  by  a  corpoi'ation  shall  !"• 
deemed  sufficient,  but  shall  not  exclude  other  forms  of  probate,  whieli 
would  be  deemed  sufficient  in  law.  If  the  instrument  is  execute! 
by  the  president  or  presiding  member  or  trustee  and  two  other  mem 
bers  of  the  corporation,  and  sealed  with  the  common  seal,  the  folhiw 
ing  form  shall  be  sufficient: 

North  Carolina,    County. 

This  .  .  day  of ,  A.  D ,  personally  came  before 

me  (here  give  the  name  and  official  title  of  the  officer  who  signs 
this  certificate),  A.  B.  (here  give  the  name  of  the  subscribing 
M'itness),  who,  being  by  me  duly  sworn,  says  that  he  knows  the  com- 
mon seal  of  the  (here  give  the  name  of  the  corporation),  and  is  also 
acquainted  with  C.  D.,  who  is  the  president  (or  presiding  member  or 
trustee),  and  also  with  E.  F.  and  G.  H.,  two  other  members  of  said 
corporation;  and  that  he,  the  said  A.  B.,  saw  the  said  president  (or 
presiding  member  or  trustee)  aiid  the  two  said  other  members  sign 
the  said  instrument,  and  saw  the  said  president  (or  presiding  mem 
ber  or  trustee)  affix  the  said  common  seal  of  said  corporation  theri'l". 
and  that  he,  the  said  subscribing  witness,  signed  his  name  as  siicli 
subscribing  witness  thereto  in  their  presence.  Witness  my  hand 
and  (when  an  official  seal  is  required  by  law)  official  seal,  this.  . .  . 
day  of ,  (year). 

(Official  seal.)  

(Signature  of  officer.) 

Tf  the  deed  or  other  instrument  is  executed  by  the  president,  pre- 
siding member  or  trustee  of  the  corporation,  and  sealed  with  its 
common  seal,  and  attested  by  its  secretary  or  assistant  secretary,  either 
of  the  following  forms  of  proof  and  certificate  lliereof  shall  be  deemed 
sufficient : 


J 


KM  15  CONVEYANCES— /Z.  Forms.  Ch.   18 

(1) 

.Viirtli  C'arolina,    County. 

This  .  .  day  of ,  A.  D ,  personally  came  before 

me  (here  give  name  and  official  title  of  the  officer  who  signs  the  cer- 
tificate) A.  B.  (here  give  the  name  of  the  attesting  secretary  or  assist- 
ant secretary),  who,  being  by  me  duly  sworn,  says  that  he  knovs  the 
common  seal  of  (here  give  the  name  of  the  corporation),  and  is  ac- 
quainted with  C.  D.,  who  is  the  president  of  said  corporation,  and 
that  he,  the  said  A.  B.,  is  the  secretary  (or  assistant  secretary)  of  the 
said  corporation,  and  saw  the  said  president  sign  the  foregoing  (or 
annexed)  instrument,  and  saw  the  said  common  seal  of  said  corpora- 
tion aiSxed  to  said  instrument  by  said  president  (or  that  he,  the  said 
A.  B.,  secretary  or  assistant  secretary  as  aforesaid,  affixed  said  seal 
to  said  instrument),  and  that  he,  the  said  A.  B.,  signed  his  name  in 
attestation  of  the  execution  of  said  instrument  in  the  presence  of 
said  president  of  said  corporation.  Witness  ray  hand  and  (when 
an  official  seal  is  required  by  law)  official  seal,  this  the.  .  .  .day  of 
;•. (year). 

(Official  seal.)  ' 

(Signature  of  officer.) 
(2) 

North  Carolina,    County. 

This  is  to  certify  that  on  the  .  .  day  of 19 .  . ,  before  me 

personally  came , (president,  vice-president,  secre- 
tary or  assistant  secretary,  as  the  case  may  be),  with  whom  I  am  per- 
sonally acquainted,  who,  being  by  me  duly  sworn,  says  that 

is  the  president  (or  vice-president),  and is  the  secretary 

(or  assistant  secretary)  of  the ,  the  corporation  described 

in,  and  which  executed  the  foregoing  instrument ;  that  he  knows  the 
common  seal  of  said  corporation ;  that  the  seal  affixed  to  the  foregoing 
instrument  is  said  common  seal,  and  the  name  of  the  corporation  was 
subscribed  thereto  by  the  said  president  (or  vice-president),  and  that 
said  president  (or  vice-president)  and  secretary  (or  assistant  secre- 
tary) subscribed  their  names  thereto,  and  said  common  seal  was 
affixed,  all  by  order  of  the  board  of  directors  of  said  corporation,  and 
that  the  said  instrument  is  the  act  and  deed  of  said  corporation.  Wit- 
ness my  hand  and  (when  an  official  seal  is  required  by  law)  official 
seal,  this  the  ....  day  of (year). 

(Official  seal.)  

(Signature  of  officer.) 

1899,  c.  235,  s.  17;  1901,  e.  2.  s.  110;  1905,  c.  114. 

Note.     For  validation  of  all  corporate  probates  prior   to   Februarv   18,   1901, 
see  ss.  in27,  1028. 

Rev.  Vol.  1—14  273 


lOofi  CONVEYANCES— /.Y.   Fonm.  Cli.   IS 

1006.  Clerk's  certificate  upon  probate  by  justice  of  peace.  Wlan 

tlie  pi-dof  or  iU'knnwlcdginent  of  any  instnimeiit  is  had  Ix'fore  a  jus- 
tice of  the  peace  of  some  other  state  or  territory  of  the  United  States, 
or  before  a  justice  of  the  peace  of  this  state  but  of  a  county  differ- 
ent from  that  in  which  the  instrimient  is  offered  for  registration, 
the  form  of  certificate  as  to  his  oflicial  position  and  signature  shall 
be  substantially  as  follows: 

^orth  Carolina,    CoTuity. 

I,  A.  B.  (here  give  name  and  official  title  of  a  clerk  of  a  court 
of  record)  do  hereby  certify  that  C.  D.  (here  give  the  name  of  the 
justice  of  the  peace  taking'  the  proof,  etc.),  was  at  the  time  of  sign- 
ing the  foregoing  (or  annexed)   certificate  an  acting  justice  of  the 

peace  in  and  for  the  county  of and  state  (or  territory)  of 

,  and  that  his  signature  thereto  is  in  his  own  proper  hand- 
writing. 

In  witness  whereof,  I  hereunto  set  my  hand  and  official  seal, 
this.  .  day  of  .  .  .  .,  A.  D 

(Official  seal.)  

(Signature  of  officer.) 

1899,  c.  235,  s.  8. 

1007.  Clerk's  certificate  upon  probate  by  nonresident  officer 

without  seal.  When  the  proof  or  ackuowledgment  of  any  instru- 
ment is  had  l)efore  any  official  of  some  other  state,  territory  or  country- 
and  such  official  have  no  official  seal,  then  the  certificate  of  si:ch 
official  shall  be  accompajiied  by  the  certificate  of  a  clerk  of  a  court 
of  record  of  the  state,  ten'itory  or  country  in  which  the  official  taking 
the  proof  or  acknowledgment  resides,  of  the  official  position  and 
signature  of  such  official;  such  certificate  of  the  clerk  shall, be  under 
his  hand  and  official  seal  and  shall  be  in  substance  as  follows: 

North  Carolina,    ( 'ounty. 

I,  A.  E.  (here  give  name  and  official  title  of  the  clerk  of  a  court 
of  record  as  provided  herein),  do  hereby  certify  that  C  D.  (here 
give  name  of  the  official  taking  the  proof,  etc.),  was  at  the  time 
of  signing  the  foregoing  (or  annexed)  certificate  a  (here  give  the 
official  title  of  the  officer  taking  proof,  etc.),  in  and  for  the  county 

of and  state  of (or  other  political  divisiim  of 

the  state,  teri'itory  or  country  as  the  case  may  be),  and  that  his  sig- 
nature thereto  is  in  his  own  proper  handwriting. 

In  witness  whereof,  I  hereunto  set  my  hand  and  official  seal,  ihis 
.  . .  .day  of A.  I) 

(Official  scaL)  

(Signature  of  clerk.) 

1899,  c.  235,  s.  8. 


lOOS  CONVEYANCES— X.  Probates  Validated.  Ch.  18 

X.     Probates  Validated. 

1008.  Errors  in  registration  corrected.  Every  person  who  dis- 

Icovers  that  there  is  an  error  in  the  registration  of  his  grant,  convey- 
lance,  bill  of  sale  or  other  instrument  of  writing,  may  prefer  a  petition 
'to  the  clerk  of  the  superior  court  of  the  county  in  which  said  writing 
is  registered,  in  the  same  manner  as  is  directed  for  petitioners  to  cor- 
irect  errors  in  grants  or  patents,  and  if  on  hearing  the  same  before 
said  clerk,  it  appears  that  errors  have  been  committed,  the  clerk 
shall  order  the  register  of  the  county  to  correct  such  errors  and  make 
the  record  conformable  to  the  original :  Provided,  that  such  petitioner 
shall  have  notified  his  grantor  and  every  person  claiming  title  to, 
or  having  lands  adjoining  those  mentioned  in  the  petition,  thirty 
Idays  previous  to  preferring  the  same:  Provided  further,  that  any 
person  dissatisfied  with  the  judgment  may  appeal  to  the  superior 
court  as  in  other  cases. 

Code,  s.  1266;  R.  C,  c.  37,  s.  28;  1790,  c.  326,  ss.  2,  3,  4. 

1009.  Taken  by  judges  supreme  or  superior  court,  or  deputy 

clerks.  Wherever  the  judges  of  the  supreme  or  the  superior  court, 
'ir  tlie  clerks  or  deputy  clerks  of  the  superior  court,  or  courts  of  pleas 
nii'l  ijuarter  sessions,  mistaking  their  powers,  have  essayed  previously 
til  I  he  first  day  of  January,  one  thousand  eight  hundred  and  eighty- 
iiiiic,  to  take  the  probate  of  deeds  or  any  instrument  required  or 
iilliiwed  by  law  to  be  registered,  and  the  privy  examination  of  femes 
iM\rrt,  whose  names  are  signed  to  such  deeds,  and  have  ordered 
s:iiil  deeds  to  registration,  and  the  same  have  been  registered,  all 
siiili  probates,  privy  examinations  and  registrations  so  taken  and 
IkhI  are  validated. 

(dile,  s.   1260;    1871-2,  c.  200,  s.   1;    1889,  e.  252;    1891,  c.  484. 

1010.  Defective  order  of  registration.   In  all  cases  where  any 

I'lcrk  (if  the  superior  courts  or  clerk  of  the  inferior  courts  or  clerk  of 
;in\-  criminal  courts  of  this  state  has  passed,  or  shall  hereafter  pass, 
ii|"iiL  the  certificate  of  an  ofticer,  taking  the  proof  or  acknowledgment 
ul'  any  deed,  deed  in  trust,  mortgage  or  other  instrument  required  to 
be  registered,  and  has  then  worded  or  shall  word  the  order  to  registra- 
tion substantially  as  follows:  "Therefore,  let  the  same  with  this  cer- 
tilicate  be  registered,"  and  the  instrument  has  been  admitted  or  shall 
liri'uafter  be  admitted  to  registration  on  such  order,  such  registration 
shall  be  as  good  and  valid  as  if  the  order  to  registration  had  been  as 
follows :  "Therefore,  let  the  instrument  with  the  certificates  be  regis- 
tered." 

1905,  c.  344. 

1011.  Where  registered  on  order  of  judge,  clerk  being  party. 

All  deeds,  mortgages  or  other  instruments  which  prior  to  the  tweu- 


1017  COATVEYANCES— A'.  Probates  ValldaicL  Cli.   IS 

1017.  Probate  in  wrong  county;  by  wife  before  husband.  The 

probate  and  registratitui  of  all  deeds  and  other  instruments  reqnir- 
•  ing  registration  taken  by  a  justice  of  the  peace  in  the  conntv  other 
than  that  in  which  the  grantor  or  subscribing  witness  resided,  and 
all  probates  of  instruments  executed  by  a  husband  and  wife  in 
which  the  probate  as  to  the  husband  has  been  taken  before  or  subse- 
quent to  the  privy  examination  of  his  wife  are  validated. 
1893,  c.  293. 

1018.  Acl<nowledgments  before  different  officers.  Where,  prior 

to  the  second  day  of  jMarch,  one  thousand  eight  hundred  and  ninety- 
five,  the  probate  of  a  deed  or  other  instrument,  executed  by  husband 
and  wife,  has  been  taken  as  to  the  husband  and  the  wife  by  different 
officers  having  the  power  to  take  probates  of  deeds,  whether  both 
officers  reside  in  this  state,  or  one  in  this  state  and  the  other  in 
another  state,  the  said  probate,  in  the  cases  mentioned,  shall  be 
valid  to  all  intents  and  purposes,  and  all  deeds  and  other  instruments 
required  to  be  registered,  and  which  have  been  ordered  to  registra- 
tion by  the  proper  officer  in  this  state,  and  upon  such  probate  or 
probates,  and  have  been  registered,  shall  be  taken  and  considered  as 
duly  registered  and  the  word  "probate,"  as  used  in  this  section,  shall 
include  privy  examination  of  the  wife. 
1895,  c.  120.  , 

1019.  Acl<nowledgment  by  resident  beyond  state.  In  all  cases, 

])rior  to  the  ninth  day  of  Mai'ch,  one  thousand  eight  hundred  and 
ninety-five,  when  a  deed  or  mortgage  executed  by  a  resident  of  this 
state  has  been  proven  or  acknowledged  by  the  maker  thereof  before  a 
notary  ptiblic  of  any  other  state  of  the  United  States,  and  said  deed 
or  mortgage  has  been  ordered  to  be  registered  by  the  clerk  of  the 
superior  court  of  the  cotmty  in  which  the  land  conveyed  by  such 
deed  or  mortgage  is  situated,  and  said  deed  or  mortgage  has  been 
registered,  such  registration  shall  be  valid  and  binding. 
1895,  c.   181. 

1020.  By  clerks  of  criminal  courts  in  Buncombe  county.  Wher- 
ever clerks  of  the  criminal  coiirts  of  Muncomlic  county  have,  prior 
to  the  second  day  of  Febnmry,  one  thousand  eight  hundred  and 
ninety-three,  essayed  to  take  the  probate  of  any  deed,  letter  of  attor- 
ney or  other  instrument  requiring  registration,  and  the  ^irivate  exam- 
ination of  femes  covert  whose  names  are  signed  to  .such  deeds,  and 
have  ordered  said  deeds  to  registration,  and  the  same  have  been 
registered,  all  such  |)robates,  private  examinations  and  registrations 
.so  taken  and  had  shall  be  valid  and  binding. 

189.3,  c.  13. 


1021  CONVEYAN"CES— A'.  Probates  Validated.  Ch.   18 

1021.  By  clerks  of  inferior  courts.  All  probates  and  orders  of 
registration  made  by  and  taken  before  any  clerk  of  any  inferior, 
or  criminal  court,  prior  to  the  twentieth  day  of  February,  one  thou- 
sand eight  hundred  and  eighty-five,  and  valid  in  form  and  substance, 
shall  be  valid  and  effectual,  aud  all  deeds,  mortgages  or  other  instru- 
ments requiring  registration,  registered  upon  such  probate  and  order 
of  registration,  shall  be  valid.  This  section  shall  apply  only  to  the 
counties  of  Halifax,  Northampton,  Hertford,  Buncombe,  Mecklen- 
burg, Granville,  Beaufort,  Lenoir,  Robeson,  Cumberland,  Ashe,  Mar- 
tin, Wayne,  Greene,  Iredell,  Bertie,  Edgecombe,  Duplin  and  New 
Hanover. 

1SS5,  cc.  105,  108;   1889,  c.  143;   1889,  c.  463. 

1022.  Before  notary  or  clerl<  of  court  of  record  of  another  state. 

All  deeds  and  conveyances  made  for  lands  in  this  state,  which  have 
previous  to  February  fifteenth,  one  thousand  eight  hundred  and 
eighty-three,  been  proven  before  a  notary  public  or  clerk  of  a  court 
of  record  of  any  other  state,  and  such  proof  having  been  duly  certi- 
fied by  such  notary  or  clerk  taking  the  proof  as  aforesaid,  under 
the  official  seal  of  such  notary  public  or  court  of  record,  and  such 
deed  or  conveyance  so  proven  and  certified,  with  the  certificate  of 
having  been  registered  in  the  office  of  register  of  deeds  in  the  book 
of  records  thereof  for  the  county  in  which  such  lands  were  situate 
at  the  time  of  the  registration  of  such  deed  or  conveyance,  shall  be 
sufficient  registration  of  the  same,  and  such  proof  and  registration 
shall  be  adjudged  good  and  valid  in  law. 
Code,  s.  1262;  1885,  c.  11;  1883,  c.  129,  s.  1. 

1023.  Evidence  under  preceding  section.  All  deeds  and  convey- 
ances proven,  certified  and  registered  under  the  preceding  section, 
or  certified  copies  of  the  same,  may  be  used  as  evidence  of  title  for 
the  lands  on  the  trial  of  any  suit  in  any  courts  where  title  to  the 
lands  shall  come  in  controversy,  and  further  registration  of  such 
deeds  and  conveyances  so  proven  and  registered  shall  not  be  nec- 
essary. 

Code,  s.  1263;  1883,  c.  129,  s.  2. 

1024.  Taken  before  vice-consul  or  vice-consul  general.    The 

order  for  registration  by  the  clerk  of  the  superior  court  and  the  regis- 
tration thereof  of  all  deeds  of  conveyance  and  other  instruments  in 
any  county  of  this  state  prior  to  January  first,  one  thousand  nine  hun- 
dred and  five,  upon  the  certificate  of  any  vice-consul  or  vice-consul 
general  of  the  United  States  residing  in  a  foreign  country,  certifying 
in  due  form  under  his  name  and  the  official  seal  of  the  United  States 
consul  or  United  States  consulate  general  of  the  same  place  and  coun- 
try where  such  vice-consul  or  vice-consul  general  resided  and  acted, 


lOi'i  CONVEYAXCES— -Y.  Probates  YaUdated.  Cli.   18 

that  lie  bad  taken  the  proof  or  ackuowledgiueuts  of  the  parties  to  such 
iiistriinients,  together  with  the  privy  examinations  of  married  women 
parties  thereto,  are  hereby,  together  with  such  jiroof  and  acknowledg- 
ments, privy  examinations  of  married  women  by,  and  certiticates  as, 
such  vice-consuls  or  vice-consuls  general,  validated,  and  the  same  shall 
be  valid  and  binding. 

1905,  e.  451,  s.  2. 

1025.  Under  form  previously  legal.  Where  deeds  or  other  instru- 
ments have  heretofore  been  acknowledged  by  husband  and  wife  or 
by  other  gi-antors  piirsuant  to  any  .form  of  acknowledgnnent  which 
was  then  lawful,  such  acknowledgment  is  hereby  declared  to  be  sutti- 
cicnt  and  valid. 

1901,  e.  299,  s.  2. 

1026.  Proof  of  handwriting  of  grantor  refusing  to  acknowledge. 

All  registrations  of  instruments,  prior  to  February  fifth,  one  thou- 
sand eight  hundred  and  ninety-seven,  permitted  or  required  by  law 
to  be  registered,  which  were  ordered  to  registration  \ipon  proof  of 
the  handwriting  of  the  grantor  or  maker  who  refused  to  acknowledge 
the  execution,  are  hereby  validated. 

1897,  c.   2S. 

1027.  Proof  of  corporate  articles  of  agreement.  All  proofs  of 

articles  of  agreement  for  the  creation  of  corporations  which  were, 
prior  to  the  eighteenth  day  of  February,  one  thousand  nine  hundred 
and  one,  made  before  any  officer  who  was  at  that  time  authorized 
by  the  law  to  take  proofs  and  acknowledgments  of  deeds  and  mort- 
gages are  ratified  and  declared  valid. 

1901,  c.   170. 

Note.     See  also.  s.  1248. 

1028.  Execution  and  proof  of  corporate  deeds.  All  deeds  and 

conveyances  for  lands  in  tliis  state,  made  by  any  corporation  of  this 
state,  which  have  heretofore  been  proven  or  acknowledged  before  any 
notary  ]>ublic  in  any  other  state,  or  before  any  commissioner  of  deeds 
and  attidavits  for  the  state  of  Xorth  Carolina  in  any  other  state,  and 
sealed  with  the  common  seal  of  the  corporation  and  attested  by  the 
treasurer,  are  hereby  ratified  and  confirmed  and  declared  to  be  good 
and  valid  deeds  for  all  pnrjioses.  AVherever  any  such  deeds  hereto- 
fore executed  by  any  corporation  of  this  state  by  the  president  thereof 
and  attested  by  the  treasurer  of  said  corporation,  and  sealed  with  the 
common  seal  of  said  corporation,  have  been  proven  or  acknowledged 
before  any  notary  ])ublic  of  any  state,  or  before  any  commissioner  of 
deeds  and  affidavits  for  the  state  of  North  Carolina  in  any  other  state, 
and  said  acknowledgment  or  probation  has  boon  duly  jiassed  upon  by 


]    1028  CONVEYANCES— X.  Probates  Validated.  Ch.   18 


any  deputy  clerk  and  adjudj^ed  to  be  correct  and  sufficient  and  in  due 
form,  and  ordered  to  be  registered,  said  acknowledg:iient,  probate  and 
registration  are  hereby  ratified  and  confirmed,  and  said  deed  is  de- 
clared to  be  legally  executed  and  good  and  valid  in  law,  and  no  fur- 
ther registration  of  such  deeds  shall  be  necessary.  All  such  deeds  and 
conveyances  proven  or  acknowledged  and  registered  as  aforesaid,  or 
certified  copies  of  the  same,  may  be  used  as  evidence  of  title  to  the 
lands  therein  conveyed  in  the  trial  of  any  suits  in  any  of  the  courts  of 
this  state  where  the  title  of  said  lauds  shall  come  in.  controversy. 

1905.  c.  307. 

Note.     See  also,  s.  1248. 

1029.  By  de  facto  officers  in  Greene.  The  probate  of  all  instru- 
ments requiring  registration  made  by  Alexander  Taylor  while  actr 
ing  as  and  being  the  de  facto  clerk  of  the  superior  court  of  Greene 
county  during  the  month,  of  December,  one  thousand  eight  hundred 
and  ninety-eight,  and  during  the  year  one  thousand  eio-ht  hundred 
and  ninety-nine,  are  hereby  declared  valid ;  and  the  registration  of  all 
instruments  requiring  registration  as  made  by  W.  E.  Murphrey  while 
acting  as  the  de  facto  register  of  deeds  of  Greene  coimty,  during  the 
month  of  December,  one  thousand  eight  hundred  and  ninety-eight, 
and  during  the  year  one  thousand  eight  hundred  and  ninety-nine,  are 
hereby  declared  valid. 

1901,  c.  369. 

1030.  By  clerks  of  wrong  county.  All  deeds  acknowledged  or 
proven,  prior  to  January  twenty-first,  one  thousand  eight  hundred 
and  ninety-one,  by  tlie  grantor,  maker  or  subscribing  witness  before 
any  clerk  of  the  superior  court  or  of  the  inferior  or  criminal  court, 
or  before  a  notary  public  or  justice  of  the  peace  of  a  county  within 
this  state  wherein  the  land  conveyed  did  not  lie,  and  where  said 
gTantor,  maker  or  suhscribing  witness  did  not  reside,  are  declared 
sufficiently  proven  and  the  registration  valid. 

1891,  c.    12. 

Note.  Appointment  and  discharge  of  deputies,  see  Clerk  Superior  Court,  ss. 
898,  899. 

Clerks  responsible  for  acts  of  deputies  in  probating  conveyances,  see  Clerk 
Superior  Court,  s.  900. 

For  law  making  property  of  corporations  under  mortgage  liable  for  certain 
debts,  see  s.  1131, 

XT.      Trustees. 

1031.  Trustee  or  mortgagee  dead,  personal  representative  exe- 
cutes power.  When  the  mortgagee  in  a  mortgage,  or  the  trustee  in 
a  deed  in  trust  executed  for  the  purpose  of  securing  a  debt  contain- 
ing a  power  of  sale,  shall  die  before  the  payment  of  the  debt  secured 


1031  CONVEYANCES— A7.  Trustees.  Cli.   IH 

in  such  mortgage  or  deed  in  trust,  all  the  title,  ritrhts,  powers  and 
duties  of  such  mortgagee  or  trustee  shall  pass  to  and  devolve  u])on  tlie 
executor  or  administrator  of  such  mortgagee  or  trustee,  including  the 
right  to  bring  an  action  of  foreclosure  in  any  of  the  courts  of  this 
state  as  prescribed  for  trustees  or  mortgagees,  and  in  such  action  it 
shall  not  be  necessary  to  make  the  heirs  at  law  of  such  deceased  ukmI- 
gagee  or  trustee  parties  thereto. 

1901.  e.  186:   1887,  c.  147;   1895.  e.  4.31  ;   l!l(t.").  c  A-2:-,. 

1032.  Foreclosures  by  representative  of  deceased  mortgagees. 

validated.  In  all  actions  which  may  have  been  bnmglit  or  ])roscciUc(l 
prior  to  the  fourth  day  of  ]\Iarch,  one  thcmsand  nine  hundred  and  tivc. 
for  the  foreclosure  of  any  mortgage  or  deed  in  trust  by  any  executor 
or  administrator  of  any  decx?ased  mortgagee  or  trustee  where  the  heirs 
of  the  mortgagor  have  been  duly  made  parties  and  regular  and  orderly 
decrees  of  foreclosure  entered  by  the  court  and  sale  had  by  a  commis- 
sioner appointed  by  the  court  for  that  purpose  and  deed  made  after 
confirmation,  the  title  so  conveyed  to  purchaser  at  such  judicial  sale 
shall  be  deemed  and  held  to  be  vested  in  such  purchaser,  whether  the 
heir  of  such  deceased  mortgagee  or  trustee  shall  have  been  a  part}-  t'l 
such  foreclosure  proceeding  or  not,  and  such  heir  of  any  deceased 
mortgagee  shall  be  estopjied  to  bring  or  prosecute  any  further  action 
against  such  purchaser  for  the  recovery  of  such  property  or  fore- 
closure of  such  mortgage  or  deed  in  trust. 
1905,  e.  425.  s.  2. 

1033.  Surviving  mortgagee  executes  power,  lu  all  mortgages  and 

deeds  of  trust  wherein  two  or  more  persons,  as  trustees  or  otherwise, 
are  given  power  to  sell  the  property  therein  conveyed  or  embraced, 
and  one  or  more  of  such  persons  shall  be  dead,  any  one  of  the  per- 
sons sun'iving  having  such  power  may  make  sale  of  such  projierty 
in  the  manner  directed  in  such  deed,  and  execute  such  assurances  of 
title  as  are  proper  and  lawful  under  the  power  so  given;  and  the 
act  of  such  person,  in  pursuance  of  said  power,  .shall  be  as  valid 
and  binding,  as  if  the  same  had  been  done  by  all  the  persons  on 
whom  the  power  was  conferred. 
lSSr>,  c.  327.  s.  2. 

1034.  When  succeeding  guardian  executes  power.    When  a 

gu^ardian  to  Avhom  a  mortgage  has  been  executed  has  died  or  been 
removed  or  resigned  before  the  ]iayment  of  the  debt  secured  in  such 
mortgage,  all  the  rights,  ])owers  and  duties  of  such  UKU'tgagee  shall 
devolve  u])on  the  succeeding  guardian. 

190.-).  0.  4:i3. 

1035.  Power  executed  by  agent,  appointed  orally  or  by  writing. 

All  sales  of  projierty,  real  or  jicrsonal,  under  a  power  of  sale  con- 

282 


1035  CONVEYANCES— AT.  Trustees.  Ch.   18 

tained  in  any  mortgage  or  deed  of  trust  to  secure  the  payment  of 
money,  by  any  mortgagee  or  trustee,  through  an  agent  or  attorney 
for  that  purpose,  by  such  mortg-agce  or  trustee,  a)ipointed  orally  or 
in  writing,  M-hether  such  writing  has  been  or  shall  be  registered  or 
not,  shall  be  valid,  whether  or  not  such  mortgagee  or  trustee  shall 
have  been  or  shall  be  present  at  such  sale. 
1805,  c.   117. 

1036.  Infant  trustees  convey,  how.  Whenever  any  infant  shall 
be  seized  or  possessed  of  any  estate  whatever  in  trust,  whether  by 
way  of  mortg-ago  or  otherwise,  for  another  person  who  may  be  enti- 
tled in  law  to  have  a  conveyance  of  such  estate,  or  may  be  declared 
to  be  seized  or  possessed,  in  the  course  of  any  proceeding  in  the 
superior  court,  the  court  may  decree  that  tlie  infant  shall  convey 
and  assure  such  estate,  in  such  manner  as  it  may  direct,  to  such 
other  person ;  and  every  conveyance  and  assurance  made  in  pursu- 
ance of  such  decree  shall  be  as  effectual  in  law  as  if  made  by  a  per- 
son of  full  age. 

Code,  s.  1265;  R.  C,  c.  37,  s.  27;  1821,  c.  1116,  ss.  1,  2. 

1037.  When  clerk  appoints  a  new  trustee.  AVhen  the  sole  or  last 

surviving  trustee  named  in  a  will  or  deed  of  trust  has  died,  removed 
from  the  county  where  the  will  was  probated  or  deed  executed  and 
from  the  state,  or  in  any  way  become  incompetent  to  execute  the  said 
trust,  or  is  a  nonresident  of  this  state,  the  clerk  of  the  superior  court 
of  the  county  wherein  the  said  will  was  probated  or  deed  of  trust  was 
executed  is  authorized  and  empowered,  in  proceedings  to  which  all 
persons  interested  shall  be  made  parties,  to  appoint  some  discreet  and 
competent  person  to  act  as  trustee  and  execute  the  trust  according  to 
its  true  intent  and  meaning,  and  as  fully  as  if  originally  appointed: 
Provided,  that  in  all  actions  or  proceedings  had  under  this  section 
prior  to  January  first,  one  thousand  nine  hundred,  before  the 
clerks  of  the  superior  court  in  which  any  trustee  was  appointed 
to  execute  a  deed  of  ti-ust  where  any  trustee  of  a  deed  of  trust 
has  died,  removed  from  the  county  where  the  deed  was  executed 
and  from  the  state,  or  in  any  way  become  incompetent  to  exe- 
cute the  said  trust,  whether  such  appointment  of  such  trustees  by 
order  or  decree,  or  otherwise,  was  made  upon  the  application  or 
petition  of  any  person  or  persons  ex-parte,  or  whether  made  in  pro- 
ceedings where  all  the  proper  parties  were  made,  are  in  all  things 
confirmed  and  made  valid  so  far  as  regards  the  parties  to  said  actions 
and  proceedings  to  the  same  extent  as  if  all  proper  parties  had 
originally  been  made  in  such  actions  or  proceedings. 

Code,  s.   1276;    1901,  c.   .576;    1869-70,  c.   183;    1873-4,  c.   126. 
Note.     See  ss.  IGG,  1032. 


1038  CONVEYA^TCES— X/.  Trustees.  Ch.   IS 

1038.  Executor  of  mortgagee  may  renounce;  trustee  appointed 

by  clerk.  The  executor  or  administrator  of  any  deceased  niortg'agee 
or  trnstee  in  any  mortgage  or  deed  of  trust  heretofore  or  hereafter 
executed  may  renounce  in  writing  before  the  clerk  of  the  superior 
court  before  whom  he  qualifies,  the  trust  under  the  mortgage  or  deed 
of  trust  at  the  time  he  qualifies  as  executor  or  administrator,  or  at  any 
time  thereafter  before  he  intermeddles  with  or  exercises  any  of  the 
duties  imder  said  mortgage  or  deed  of  trust,  except  to  preserve  the 
property  until  a  tnistee  can  be  appointed,  and  in  every  such  case  of 
renunciation  the  clerk  of  the  sujDerior  court  of  any  county  wherein 
the  said  mortgage  or  deed  of  trust  is  registered  shall  have  power  and 
authority,  upon  proper  proceedings  instituted  before  him,  as  in  other 
cases  of  special  proceedings,  to  appoint  some  person  to  act  as  trustee 
and  execute  said  mortgage  or  deed  of  trust.  That  the  clerk  of  the 
superior  court,  in  addition  to  recording  his  proceedings  in  his  book  of 
orders  and  decrees,  shall  enter  the  name  of  the  substituted  trufetee  or 
mortgagee  on  the  margin  of  the  deed  in  trust  or  the  mortgage  in  the 
book  of  the  ofiice  of  the  register  of  deeds  of  said  county. 
1905,  c.  128. 

XII.     Chattel  Mortgage. 

1039.  Form  of.  Any  person  indebted  to  another  in  a  sum  to  be 
secured,  not  exceeding  at  the  time  of  executing  the  instrmnent  herein 
provided  for  the  sum  of  three  hundred  dollars,  may  execute  a  chattel 
mortgage  in  form  substantially  that  which  follows : 

I,    ,   of  the  county  of    in   the   state  of 

North  Carolina,  am  indebted  to    ,  of county, 

in  said  state,  in  the  sum  of dollars,  for  which  he  holds  my 

note  to  be  due  the.  . .  .of ,  A.  D.   19.  .  .  .,  and  to  secure 

the  payment  of  the  same,  I  do  hereby  convey  to  him  these  articles  of 
personal  property,   to-wit : 

but  on  this  special  trust,  that  if  I  fail  to 

pay  said  debt  and  interest  on  or  before  the.  .  .  .day  of 

A.  D.  19.  .  .  .,  then  he  may  sell  said  property,  or  so  much  thereof  as 
may  be  necessary,  by  public  auction  for  cash,  first  giving  twenty  days' 
notice  at  three  public  places,  and  apply  the  proceeds  of  such  sale  to 
the  discharge  of  said  debt  and  interest  on  the  same,  and  pay  any 
surplus  to  me.      Given  under  mv  hand   and  seal,  this    .  .    dav  of 

,  A.  D.  19 '  [Seal] 

Code,  s.   1273;    18701,  c.  277. 

1040.  Registration  of,  notice  of  sale  under.  Such  chattel  mort- 
gage shall  be  good  to  all  intents  and  jiurjioses  when  the  same  shall 
lie  duly  registered  according  to  law,  Init  no  sale  thereunder  shall  be 

284 


1040  CONVEYANCES— Z//.   Chattel  Mortgage.  Ch.   18 

made  without  giving  at  least  twenty  days  pnljlic  notice  of  tlie  time 
and  place  of  such  sale. 

Code,  ss.   1273,  1274;    1870-1,  e.  277,  ss.   1,  2. 

Xote.     For  fees  for  probate  and  registration,  see  ss.  2773,  2776. 

For  joinder  of  chattel  mortgage  and  lien  bond,  see  Liens,  s.  2055. 

1041.  Mortgages  of  household  and  kitchen  furniture.  All  con- 
veyances of  household  and  kitchen  furniture  by  a  married  man, 
made  to  secure  the  payment  of  money  or  other  thing  of  value,  shall 
be  void,  unless  the  wife  join  therein  and  her  privy  examination  be 
taken  in  the  manner  prescribed  by  law  in  conveyances  of  real  estate. 

1891,  c.  91. 

Note.     For  fees  for,  see  ss.  2773,  2770. 


Note.     For  lien  bonds,  see  Liens. 

XIII.     Mortgage  Sales. 

1042.  Advertised  at  courthouse  door.  All  property,  real  and  per- 
sonal, sold  under  the  terms  of  any  mortgage  or  other  contract, 
expressed  or  implied,  whether  advertised  in  some  newspaper  or 
otherwise,  shall  be  advertised  by  posting  a  notice  at  some  conspicu- 
ous place  at  the  courthouse  door  in  the  county  where  the  property 
is  situated,  such  notice  to  be  posted  for  at  least  twenty  days  before 
the  sale,  unless  a  shorter  time  be  expressed  in  the  contract. 

1889,  c.  70. 

Note.     For  notice  of  sale  under  chattel  mortgage,  see  s.  1040. 

See  also,  s.  641. 

1043.  Description  of  property  in  advertisements,  in  sales  of  real 

estate  under  deeds  of  trust  or  mortgages,  it  shall  be  the  duty  of  the 
trustee  or  mortgagee  making  such  sale  to  fully  describe  the  premises 
in  the  notice  required  by  law,  substantially  as  the  same  is  described 
in  the  deed  or  authority  under  which  said  trustee  or  mortgagee  makes 
such  sale. 
1895,  c.  294. 

1044.  Power  of  sale  barred  when.  The  power  of  sale  of  real 

property  contained  in  any  mortgage  or  deed  of  trtist  for  the  benefit 
of  creditors  shall  become  inoperative,  and  no  person  shall  execute  any 
such  power,  when  an  action  to  foreclose  such  mortg'age  or  deed  of 
trust  for  the  benefit  of  creditors  would  be  ban-ed  by  the  statute  of 
limitations.  Wherever  an  action  to  foreclose  any  such  mortgage  or 
deed  of  tnist  is  now  barred  by  the  statute  of  limitations,  the  authority 
to  execute  the  power  of  sale  contained  therein  shall  be  baiTed  on  the 
first  day  of  January,  one  thousand  nine  hundred  and  seven. 


Note.     For  who  can  execute  the  power,  see  s.  1031  et  seq. 
285 


1045     C0KVEYA:N'CES— .Y/F.  Eevocadon  and  Dkch.     Ch.   IS 
XIV.     Revocation  and  DiscirAEOE. 

1045.  Deeds  to  persons  not  in  esse  revoked.  The  gi-antor  in 

any  voluntary  coiivevaiiee  in  which  some  future  interest  in  real 
estate  is  conveyed  or  limited  to  a  person  not  in  esse,  may  at  any  time 
before  he  comes  into  being,  revoke  by  deed  such  interest  so  conveyed 
or  limited.  This  deed  of  revocation  shall  be  registered  as  other 
deeds ;  and  the  grantor  of  like  interests  for  a  valuable  consideration 
may,  with  the  joinder  of  the  person  from  whom  the  consideration 
moved,  revoke  said  interest  in  like  manner. 
1893,  e.  498. 

1046.  Mortgages  and  deeds  of  trust  released,  how.  Any  deed 

of  trust  or  mortgage  which  hath  been  or  which  hereafter  may  be 
registered  in  the  manner  required  by  law,  may  be  discharged  and 
released  in  the  following  manner,  to-wit : 

1.  The  trustee  or  mortgagee  or  his  or  her  legal  representative,  or 
the  duly  authorized  agent  or  attorney  of  such  trustee,  mortgagee  or 
legal  representative  may,  in  the  presence  of  the  register  of  deeds  or 
his  deputy,  acknowledge  the  satisfaction  of  the  provisions  of  such 
deed  of  trust  or  mortgage,  whereupon  it  shall  be  the  duty  of  the  regis- 
ter or  his  deputy  forthwith  to  make  upon  the  margin  of  the  record  of 
such  deed  of  trust  or  mortgage  an  entry  of  such  acknowledginent  of 
satisfaction,  which  shall  be  signed  by  the  said  trustee,  mortgagee,  legal 
representative  or  attorney,  and  witnessed  by  the  register  or  his 
deputy,  who  shall  also  affix  his  name  thereto ;  or, 

2.  Upon  the  exhibition  of  any  mortgage,  deed  in  trust  or  other 
instrument  intended  to  secure  the  payment  of  money,  accompanied 
with  the  bond  or  note,  to  the  register  of  deeds  or  his  deputy,  where 
the  same  is  registered,  with  the  endorsement  of  payment  and  satis- 
faction appearing  thereon  by  the  payee,  mortgagee,  trustee  or  assignee 
of  the  same,  the  said  register  or  his  deputy  shall  cancel  the  mortgage 
or  other  instrument  by  entry  of  "satisfaction"  on  the  margin  of  the 
record ;  and  the  person  so  claiming  to  have  satisfied  the  debt  may 
retain  possession  of  the  bond  and  mortgage  or  other  instrument: 
Provided,  if  the  register  or  his  deputy  shall  require  it  he  shall  file 
a  receipt  to  him  showing  by  whose  authority  the  mortgage  or  other 
instrument  was  cancelled. 

Every  such  entry  thus  made  by  the  register  of  deeds  or  his  deputy, 
and  every  such  enti-y  thus  acknowledged  and  witnessed  shall  operate 
and  have  the  same  effect  to  release  and  discharge  all  the  interest  of 
such  trustee,  mortgagee  or  representative  in  such  deed  or  mortgage, 
as  if  a  deed  of  release  or  reconveyance  thereof  had  been  duly  executed 
and  recorded. 

Codp,  s.  I'iTl;   1891,  c.  ISO;   1S93,  c.  M ;   1901.  c.  40:   1870-1,  c.  217. 


1047  CORONERS.  Ch.  19 


CHAPTER  19. 
CORONERS. 

(Sections  1047—105.3.) 

!      1047.  How  elected;  clerk  appoints  for  special  cases.  In  each 

I  comity  a  *  *  *  coroner  slinll  be  elected  by  the  qiialified  voters 
thereof,  as  is  prescribed  for  members  of  the  general  assembly,  and 
shall  hold  their  offices  (his  office)  for  two  years.  *  *  *  When 
there  is  no  coroner  in  a  county,  the  clerk  of  the  superior  court  for 
the  county  may  appoint  one  for  special  cases. 

Const.,  Art.  IV,  s.  24.  (In  case  of  a  vacancy  the  county  commissioners  appoint, 
s.  1321.) 

1 048.  Oath  of  office  to  be  taken.  Every  coroner,  before  entering 
upon  the  duties  of  his  office,  shall  take  and  subscribe  to  the  oaths 
prescribed  for  public  officers,  and  an  oath  of  office. 

Code,   s.   601. 

1049.  Vacancy,  clerk  may  appoint  special,  whenever  there  is  a 

,  vacancy  existing  in  the  office  of  coroner  in  any  county,  and  it  shall 
be  made  to  appear  by  the  affidavit  of  some  responsible  person  that 
a  deceased  person  whose  body  has  been  found  within  the  county 
probably  came  to  his  death  by  the  criminal  act  or  default  of  some 
person,  it  shall  be  the  duty  of  the  clerk  of  the  superior  court  of  such 
county  to  appoint  some  suitable  person  as  special  coroner  to  hold  an 
inquest  over  the  body  of  the  deceased. 
1903,  c.  661. 

1050.  Powers,  penalties  and  liabilities  of  special.  The  special 

coroner  api)ointed  under  the  provisions  of  the  preceding  section  shall 
be  invested  with  all  the  powers  and  duties  conferred  upon  the  several 
coroners  in  respect  to  holding  inquests  over  deceased  bodies,  and  shall 
be  subject  to  the  penalties  and  liabilities  imposed  on  the  said  coroners. 
1903,  c.  661,  s.  2. 

1051.  Holds  inquests;  when  physician  summoned.   It  shall  be 

the  duty  of  the  several  enroners,  whenever  it  is  made  to  appear,  by 
the  affidavit  of  some  responsible  person,  that  the  deceased  probably 
came  to  his  death  by  the  criminal  act  or  default  of  some  person  or 
persons,  to  go  to  the  place  \\'here  the  body  of  such  deceased  person 
is  and  forthwith  to  summon  a  jury  of  si.\  good  and  lawful  men : 
whereupon  the  coroner,  upon  oath  of  said  jury  at  the  said  place,  shall 
make  inquiry  when,  how  and  by  what  means  such  deceased  person 


1051  COEONERS.  Ch.   I'.i 

came  to  his  death,  and  his  name  if  it  was  kllo^vn,  together  with  all 
the  material  circumstances  attending  his  death ;  and  if  it  shall 
appear  that  the  deceased  was  slain,  then  who  was  guilty  either  as 
principal  or  accessory,  if  known,  or  in  any  manner  the  cause  of  his 
death.  And  as  many  persons  as  are  found  culpahle,  by  incpiisition 
in  manner  aforesaid,  shall  be  taken  and  delivered  to  the  sheriff  and 
committed  to  jail;  and  such  persons  as  are  found  to  know  anything 
of  the  matters  aforesaid  and  are  not  culpable  themselves,  shall  be 
bound  in  a  recognizance  with  sufficient  surety  to  appear  at  the  next 
superior  court  to  give  evidence;  of  all  which  matters  and  things  the 
coroner  must  make  a  record  of  his  inquisition  sig-ned  by  the  jurors, 
and  return  the  same  to  the  next  superior  court  of  his  proper  coimty. 
It  shall  be  the  dntj  of  every  coroner,  when  the  jury  investigating  the 
case  shall  reqiiire  it,  to  summon  a  physician  or  surgeon,  cxct'])t  tiiat  in 
Buncombe  county,  when  the  coroner  is  a  physician  or  surgeon,  he 
shall,  if  requested  by  one  or  more  of  the  juroi's,  make  the  investiga- 
tion. 

Code,  s.  657;   1903,  c.  586;  1899,  c.  478;  1905,  e.  028. 

1052.  Acts  as  sheriff,  when;  special  coroner.   If  at  any  time 

there  be  no  person  properly  qualified  to  act  as  sheriff  in  any  county, 
the  coroner  of  such  county  is  hereby  required  to  execute  all  process 
and  in  all  othea-  things  to  act  as  sheriff,  until  some  person  shall  be 
appointed  sheriff  in  said  county ;  and  such  coroner  shall  be  under  the 
same  rules  and  regulations,  and  subject  to  the  same  forfeitures,  fines, 
and  penalties  as  sheriffs  are  by  law,  for  neglect  or  disobedience  of 
the  same  duties.  And  if  at  any  time  the  sheriff  of  any  county 
be  interested  in  or  a  party  to  any  proceeding  in  any  court,  and  if 
there  be  no  coroner  in  such  county,  or  if  the  coroner  be  interested 
in  any  such  proceeding,  then  the  clerk  of  the  court  from  which  such 
process  issues  shall  appoint  some  suitable  person  to  act  as  special 
coroner  to  execute  such  process,  and  siich  special  coroner  shall  be 
under  the  same  rules,  regulations  and  penalties  as  hereinabove  pro- 
vided for. 

Code,  s.  658;  1891,  c.  173. 

1053.  Compensation  of  jurors  at  inquest.  All  persons  who  may 

be  summoned  to  act  as  jurors  in  any  inquest  held  by  a  coroner  over 
dead  bodies,  and  who,  in  obedience  thereto,  shall  appear  and  act  as 
such  jiirors,  shall  be  entitled  to  the  same  compensation  in  per  diem 
and  mileage  as  is  allowed  by  law  to  jurors  acting  in  the  superior 
courts.  The  coroners  of  the  respective  counties  are  liereby  authorized 
and  empowered  to  take  proof  of  the  number  of  days  of  service  of  each 
juror  so  acting  and  also  of  the  number  of  miles  traveled  by  such 
juror  in  going  to  and  returning  from  such  place  of  inqiu^st,  and  shall 


Ki.V]  CORONEES.  Ch.   19 

tile  with  the  board  of  commissioners  of  the  county  a  correct  account 
of  the  same,  which  shall  be,  by  such  commissioners,  audited  and  paid 
in  the  manner  provided  for  the  pay  of  jurors  acting  in  the  superior 
courts. 

Code,  ss.  659,  660. 


Note.     For  bond  of,  see  Bonds,  s.  299. 


CHAPTER  20. 
CORPORATION  COMMISSION. 


Sect 

ions. 

I. 
11. 
III. 

Court, 

Investigations, 

Powers, 

10.54- 

1  HA  4 

-1063 
1  Afip; 

1066- 

—  lUOO 

-1073 

IV. 

Appeals, 

1074- 

-1081 

V. 

Injunction, 

1082- 

-1085 

VI. 

Penalties, 

1086- 

-1093 

VII. 

Jurisdiction, 

1094- 

-1103 

VIII. 

Rates, 

1104- 

-1112 

IX. 

Duties, 

111.3- 

-1118 

X. 

Ta.x  commissioners. 

1119- 

-1127 

I.     Court. 

1054.  Court  of  record.  There  shall  be  a  court  of  record,  known 
as  the  "corporation  commission."  Such  court  shall  adopt  a  seal, 
and  shall  have  all  of  the  powers  and  jurisdiction  of  a  court  of  general 
jurisdiction  as  to  all  subjects  embraced  in  this  chapter.  The  mem- 
bers and  clerk  thereof  may  administer  oaths. 

1899,  c.  104,  ss.  1,  31. 

1055.  Number  of  commissioners.    The  court  shall  consist  of 

three  commissioners,  who  shall  be  elected  by  the  qualified  voters  of 
the  state,  in  the  same  manner  as  other  state  officers  are  elected.  The 
court  shall  organize  by  the  election  of  one  of  the  commissioners  as 
chairman. 

1899,  c.   164,  s.   1. 

1056.  Term  of  office.  The  term  of  office  of  the  commissioners 
shall  begin  on  the  first  day  of  January  next  after  their  election,  and 

Rev.  Vol.  1—15  289 


1056  COEPOKATIO:Nr  COMMIS.— 7.  Court.  Ch.  20 

shall  continue  for  six  years  and  until  their  successors  are  elected 
and  qualified.     One  member  of  the  court  shall  be  elected  at  each 
general  election. 
1899,  c.  164. 

1057.  Vacancy.    If  for  any  cause  there  shall  be  a  vacancy  in 

the  comniission,  the  governor  shall  apjioint  to  such  ^•acancy.  Such 
appointee  shall  hold  until  the  election  and  qualification  of  his  suc- 
cessor, who  shall  be  elected  at  the  next  general  election,  after  the 
vacancy  occurred.  The  person  so  elected  shall  hold  office  for  the 
unexpired  term. 

1899,  c.   1G4;   1901,  c.   194. 

1058.  Qualification  of  commissioners.  It  shall  be  unlawful  for 

any  member  or  official  of  said  court  to  jointly,  severally,  or  in  any 
other  way,  either  directly  or  indirectly,  hold  any  stock  or  bond,  or 
be  the  agent,  attorney  or  employee,  or  have  any  interest  in  any  way, 
in  any  steamboat,  railroad,  canal,  navigation,  express,  telegraph,  tele- 
phone, bank  or  building  and  loan  company,  or  association.  If  any 
member  or  official  of  said  court  shall,  during  the  term  of  his  office  as 
distributee  or  legatee,  or  in  any  other  way,  have  or  become  entitled  to 
any  stock  or  bonds  or  interest  therein  of  any  such  company  he  shall 
at  once  dispose  of  the  same,  and  upon  failure  to  do  so  shall  forfeit 
his  office,  and  may  be  suspended  by  the  governor. 

1899,   c.    164. 

1059.  Oath  of  office.  The  members  of  the  court,  in  addition  to  the 
oath  to  support  the  constitution  and  laws  of  the  United  States  and 
the  constitution  and  laws  of  the  state  of  North  Carolina,  shall  take, 
to  be  administered  by  one  of  the  judges  of  the  supreme  court,  the 
following  oath  of  office,  which  oath  shall  be  signed  by  such  commis- 
sioners and  attested  by  said  judge  and  recorded  in  the  office  of  the 
secretary  of  state:  "I  do  solemnly  swear  (or  affirm)  that  I  am  not 
the  owner  of  any  steamboat  or  of  any  stock  or  bond  of  any  railroad, 
navigation  or  canal  company,  express,  telegraph  or  telephone  com- 
pany, or  of  any  bank  or  building  and  loan  association,  or  the  agent  or 
attorney  or  employee  of  any  such  company  or  association ;  that  I  have 
no  interest  in  any  way  in  any  such  company  or  association,  and  that  I 
will  well  and  faithfully  execute  the  duties  of  my  office  as  a  member 
of  the  corporation  commission  and  as  state  tax  commissioner  to  the 
best  of  my  knowledge  and  ability,  without  fear,  favor,  malice,  reward 
or  the  hope  of  reward.     So  help  me,  God." 

1899,  c.  164,  8.  1;  1903,  c.  251,  s.  3. 

1060.  Place  of  meeting.  The  court  shall  be  liehl  in  the  city  of 
Tlalcigh.      Sj)ecial  sessions  may  be  lield   at  any  ]i1a<c,   in   ihr  state. 


10(30  COEPOEATIO^T  COMMIS.— Z.  Court.  Ch.  20 

when  in  the  judgment  of  the  court  the  convenience  of  all  parties  is 
best  subserved  and  expense  is  thereby  saved. 

1899,  c.  164,  sa.  30,  31;   1901,  c.  079,  s.  4. 

1061.  Open  at  all  times.  The  court  shall  be  open  at  all  times 
for  the  transaction  of  business,  and  each  member  shall  devote  his 
•whole  time  to  the  discharge  of  the  duties  of  his  office ;  and  it  shall 
lie  his  duty  to  remain  in  the  office  of  the  commission  at  least  fifteen 
Jays  in  each  month,  unless  detained  therefrom  on  official  business. 

i899,  c.  164,  s.  30;   1903,  c.  251,  s.  3. 

1062.  Quorum.  Any  two  members  of  the  court  shall  constitute  a 
quorum  for  the  transaction  of  business.  The  chairman  is  hereby 
authorized  and  empowered  to  perform  the  duties  and  exercise  the 
powers  conferred  by  law  upon  the  corporation  commission  as  to  or 
over  banks  and  building  and  loan  associations,  but  this  shall  not 
prevent,  as  to  banking  and  building  and  loan  associations,  the 
other  members  of  the  court  from  acting  with  the  chairman  in  all 
of  such  matters. 

1899,  c.  164,  s.  29. 

1063.  Clerk.  The  court  shall  appoint  a  clerk,  who  shall  be  an 
expert  accountant,  experienced  in  railroad  statistics  and  transporta- 
tion rates.  His  term  of  office  shall  be  for  two  years.  He  shall  take 
and  subscribe  to  oaths  of  office  similar  to  those  prescribed  for  the 
commissioners. 

1S99,  c.  104,  ss.  9,  31. 

II.     Investigations. 

1064.  Examinations.  The  commissioners  shall  from  time  to  time 
visit  the  places  of  business,  and  investigate  the  books  and  papers 
of  all  corporations,  firms  or  individuals  engaged  in  the  transportation 
of  freight  or  passengers,  the  transmission  of  messages  either  by  tele- 
graph or  telephone,  all  public  or  private  banks,  loan  and  trust  com- 
panies, and  all  building  and  loan  associations,  to  ascertain  if  all  the 
orders,  rules  and  regulations  of  the  corporation  commission  have  been 
complied  with,  and  shall  have  full  power  and  authority  to  examine 
all  officers,  agents  and  employees  of  such  companies,  individuals, 
firms  or  corj^orations,  and  all  other  persons  under  oath  or  otherwise, 
and  to  compel  the  production  of  papers  and  the  attendance  of  wit- 
nesses to  obtain  the  information  necessary  for  carrying  into  eiiect 
and  otherwise  enforcing  the  provisions  of  this  chapter,  and  the  chap- 
ters entitled  "Banks"  and  "Building  and  Loan  Associations." 

1899,  e.  164,  s.  1. 

291 


1065     CORPORATIOX   COMMIS.— //.  Investigations.     Ch.  20 

1065.  Railroad  accidents.  The  commission  may  investigate  the 
causes  of  any  accident  on  a  railroad  or  steamboat  which  it  may  deem 
to  require  investigation,  and  any  evidence  taken  upon  sucli  investiga- 
tion shall  be  reduced  to  writing,  filed  in  the  office  of  the  commission, 
and  be  subject  to  public  inspection. 

1899,  c.  164,  s.  24. 

III.     Powers. 

1066.  General  powers.  The  corporation  commission  shall  have 
such  general  control  and  supervision  of  all  railroad,  street  railway, 
steamboat,  canal,  express  and  sleeping  car  companies  or  corporations 
and  of  all  other  companies  or  corporations  engaged  in  the  carrying 
of  freight  or  passengers,  of  all  telegraph  and  telephone  companies, 
of  all  piiblic  and  private  banks  and  all  loan  and  trusi  companies  or 
corporations,  and  of  all  building  and  loan  associations  or  companies, 
necessary  to  carry  into  effect  the  provisions  of  this  chapter,  and  the 
laws   regulating   such   companies. 

1899,  c.  164,  s.  1;   1901,  c.  679. 

1067.  Witnesses;  production  of  papers;  contempt.  The  corpor- 
ation commission  shall  have  the  same  power  to  compel  the  attendance 
of  witnesses,  require  the  examination  of  persons  and  parties,  and 
compel  the  production  of  books  and  papers,  and  punish  for  contempt, 
as  by  law  is  conferred  iipon  the  superior  courts. 

1899,  c.   1G4,  ss.  1,  9,  10. 

1068.  Rules  of  practice.  The  corporation  commission  shall  pre- 
scribe rules  of  practice  and  procedure  in  all  matters  before  it  and 
in  all  examinations  necessary  to  be  made  under  this  chapter. 

1899,  c.  164,  s.  2,  subsec.  24. 

1069.  Rules  of  evidence.  In  all  cases  under  the  provisions  of 
this  chapter  the  rules  of  evidence  shall  be  the  same  as  in  civil  actions, 
except  as  provided  by  this  chapter. 

1899,  c.  164,  s.  26. 

1070.  Subpoenas,  how  issued;  served.  All  subpoenas  for  wit- 
nesses to  appear  before  the  commission  or  before  any  one  or  more  of 
the  commissioners,  and  notice  to  persons  or  corporations,  shall  be 
issued  by  one  of  the  commissioners  or  its  clerk  and  be  directed  to  anj'' 
sheriff,  constable  or  to  the  marshal  of  any  city  or  town  who  shall  exe- 
cute the  same  and  make  due  return  thereof  as  directed  therein  under 
the  penalties  prescribed  by  law  for  a  failure  to  execute  and  return 
the  process  of  any  court. 

1899.  c.  164,  s.  10. 


1071  COKPORATION  COMMIS.— 7/7.  Powers.  Ch.  20 

1071.  Service  of  orders.  The  clerk  of  the  commission  may  serve 
iiiiy  notice  issued  by  it  and  his  retiirn  thereof  shall  be  evidence  of 
-aid  service;  and  it  shall  be  the  duty  of  the  sheriffs  and  other  officers 
ti)  serve  any  process,  subi^oenas  and  notices  issued  by  the  commission- 
ers, and  they  shall  be  entitled  therefor  to  the  same  fees  as  are  pre- 
scribed by  law  for  serving  similar  papers  issuing  from  the  superior 
court. 

1899,  c.  164,  s.  9. 

1072.  Undertakings.  Ml  bonds  or  undertakings  required  to  be 
given  by  any  of  the  provisions  of  this  chapter  shall  be  payable  to 
the  state  of  North  Carolina,  and  may  be  sued  on  as  are  other  under- 
takings which  are  payable  to  the  state. 

1899,  c.  164,  s.  7. 

1073.  Controversies  may  be  submitted  to  commission.  When- 
ever any  comj3any  or  corjDoration  embraced  in  this  chapter  has  a  con- 
troversy with  another  corporation  or  person  and  all  the  parties  to 
such  controversy  agree  in  writing  to  submit  such  controversy  to  the 
commission  as  arbitrators,  the  commission  shall  act  as  such,  and 
after  due  notice  to  all  parties  interested  shall  proceed  to  hear  the 
same,  and  their  award  shall  be  final.  Such  award  in  cases  where 
land  or  an  interest  in  land  is  concerned  shall  immediately  be  cer- 
tified to  the  clerk  of  the  superior  court  of  the  county  in  which 
said  land  is  situated  and  shall  by  such  clerk  be  docketed  in  the  judg- 
ment docket  for  such  county,  and  from  such  docketing  shall  be  a 
judgment  of  the  superior  court  for  such  county.  Parties  may  appear 
in  person  or  by  attorney  before  such  arbitrators. 

1899,  c.  164,  s.  25. 

IV.     Appeals. 

1074.  Right  of;  how  taken.  From  all  decisions  or  determinations 
made  by  the  corporation  commission  any  party  affected  thereby  shall 
be  entitled  to  an  appeal.  L'efore  such  party  shall  be  allowed  to  appeal, 
he  shall,  within  ten  days  after  notice  of  such  decision  or  determina- 
tion, file  with  the  commission  exceptions  to  the  decision  or  determina- 
tion of  the  commission,  which  exceptions  shall  state  the  gTounds  of 
objection  to  such  decision  or  determination.  If  any  one  of  such 
exceptions  shall  be  overruled,  then  such  party  may  appeal  from  the 
order  overruling  the  exception,  and  shall,  within  ten  days  after  the 
decision  overruling  the  exception,  give  notice  of  his  appeal.  When 
an  exception  is  made  to  the  facts  as  found  by  the  commission,  the 
appeal  .shall  be  to  the  superior  court  in  term  time ;  otherwise  to  the 
judge  of  the  superior  court  at  chambers.  The  party  appealing  shall, 
within  ten  days  after  the  notice  of  appeal  has  been  served,  file  with 


1074  CORPORATION  COMMIS.— 7T'.  Appeals.  Ch.  20 

the  commission  exceptions  to  the  decision  or  determination  overruling 
the  exception,  which  statement  shall  assign  the  errors  complained  of 
and  the  grounds  of  the  appeal.  Upon  the  filing  of  such  statement  the 
commission  shall,  within  ten  days,  transmit  all  the  papers  and  evi- 
dence considered  by  it,  together  with  the  assignment  of  errors  filed  by 
the  appellant,  to  a  judge  of  the  superior  court  holding  court  or  resid- 
ing in  some  district  in  which  such  company  operates  or  the  party 
resides.  If  there  be  no  exceptions  to  any  facts  as  found  by  the  com- 
mission, it  shall  be  heard  by  the  judge  at  chambers  at  some  place  in 
the  district,  of  which  all  parties  shall  have  ten  days'  notice. 
1899,  c.  164,  ss.  7,  28;  1903,  c.  126. 

1075.  Appeal  docketed;  priority  of  trial;  burden.  The  cause  shall 

be  entitled  "State  of  Xortli  Carolina  on  relatinn  <if  the  Corporation 
Commission  against  (here  insert  name  of  appellant),"  and  if  there 
are  exceptions  to  any  facts  found  by  the  commission,  it  shall  be  placed 
on  the  civil  issue  docket  of  such  court  and  shall  have  precedence  of 
other  civil  actions,  and  shall  be  tried  under  the  same  rules  and  regu- 
lations as  are  prescribed  for  the  trial  of  other  civil  causes,  except  that 
the  rates  fixed  or  the  decision  or  determination  made  by  the  commis- 
sion shall  be  j^rima  facie  just  and  reasonable. 

1899,  c.  164,  s.  7. 

Note.     See  s.  1112. 

1076.  Heard  at  chambers  by  consent.  By  consent  of  all  parties 

the  apjDeal  may  be  heard  and  determined  at  chambers  before  any 
judge  of  a  district  through  or  into  which  the  railroad  may  extend, 
or  any  judge  holding  court  therein,  or  in  which  the  person  or  com- 
pany does  business. 

1899,  c.   164.  s.  7. 

1077.  To  supreme  court.  Either  party  may  appeal  to  the  su- 
preme court  from  the  judgment  of  the  superior  court  under  the  same 
rules  and  regulations  as  are  prescribed  by  law  for  appeals,  except 
that  the  state  of  North  Carolina  if  it  shall  appeal  shall  not  be 
required  to  give  any  undertaking  or  make  any  deposit  to  secure  the 
cost  of  such  appeal,  and  such  court  may  advance  the  cause  on  its 
docket  so  as  to  give  the  same  a  speedy  hearing. 

1899,  c.  164,  s.  7. 

1078.  Rates  vacated  pending  appeal,  how.  The  rates  of  freight 

and  fare  fixed  by  the  commission  shall  be  and  remain  the  established 
rates  and  shall  be  so  observed  and  regarded  by  corporations  appeal- 
ing until  the  same  shall  be  changed,  reversed  or  modified  by  the 
judgment  of  the  superior  court,  unless  the  railroad  company  shall 
within  fifteen  days  file  with  said  commission  a  justified  undertaking. 


.  1078  COEPORATION  COMMIS.— ZF.  Appeals.  Ch.  20 

in  a  sum  to  be  fixed  by  the  commission,  conditioned  to  pay  the  state 
of  North  Carolina  the  difference  between  the  aggregate  freights 
charged  or  received  and  those  fixed  by  said  commission,  and  to 
make  a  report  of  freights  charged  or  received  every  three  months 
diiring  the  pendency  of  such  appeal;  and  whenever  such  difference 
in  freights  equals  or  exceeds  the  penalty  of  such  undertaking  the 
commission  may  require  another  to  be  executed  and  filed  with  them. 
From  the  time  the  undertaking  first  mentioned  is  filed  the  judgment 
appealed  from  shall  be  vacated;  but  a  failure  for  ten  days  to  file 
any  additional  undertaking  required  by  the  commission  shall  eo 
instanti  revive  such  judgment.  Out  of  the  funds  jjaid  into  the  state 
treasury  under  this  section  there  shall  be  refunded  to  shippers  the 
overpaid  freight  ascertained  by  the  final  determination  of  the  appeal 
on  the  recommendation  of  the  cormnission,  if  application  therefor 
is  made  within  one  year  from  such  final  determination. 
1899,  c.   164,  s.  7. 

1079.  Judgment  superior  court  not  vacated  by  appeal.  Any 

freight  or  passenger  rates  fixed  by  the  commission,  when  ajDproved 
or  confirmed  by  the  judgment  of  the  superior  court,  shall  be  and 
remain  the  established  rates  and  shall  be  so  observed  and  regarded 
by  an  appealing  corporation  until  the  same  shall  be  changed,  revised 
or  modified  by  the  final  judgment  of  the  supreme  court,  if  there 
shall  be  an  appeal  thereto,  and  until  changed  by  the  corporation  com- 
mission. 

1899,  c.  164,  s.  7. 

1080.  Judgment  on  appeal  enforced  by  mandamus.  In  all  cases 

in  which,  upon  appeal,  a  judgment  of  the  cor])oration  commission  is 
affirmed,  in  whole  or  in  part,  the  appellate  court  shall  embrace  in  its 
decree  a  mandamus  to  the  appellant  to  put  said  order  in  force,  or  so 
much  thereof  as  shall  be  affirmed. 
1905,  c.  107,  s.  2. 

1081.  Peremptory  mandamus  to  enforce  order,  when  no  appeal. 

If  no  appeal  is  taken  from  an  order  or  judginent  of  the  corporation 
commission  within  the  time  prescribed  by  law,  but  the  corporation 
affected  thereby  fails  to  put  said  order  in  operation,  the  corporation 
commission  may  apply  to  the  judge  riding  the  superior  court  district 
which  embraces  Wake  county,  or  to  the  resident  judge  of  said  district 
at  chambers,  upon  ten  days'  notice,  for  a  peremptory  mandamus  upon 
said  corporation  for  the  putting  in  force  of  said  judgment  or  order; 
and  if  said  judge  shall  find  that  the  order  of  said  commission  was  valid 
and  within  the  scope  of  its  powers,  he  shall  issue  such  peremptory 
mandamus.      An  appeal  shall  lie  to  the  supreme  court  in  behalf  of 


1081  COEPORATIOX  COMJIIS.— 71'.  Appeals.  Cli.   20 

the  corporation  commission,  or  the  defendant  corporation,  from  the 
refusal  or  the  granting  of  such  perem])tory  mandamus. 
1905,  c.  107. 

V.     Injunction. 

1082.  When  granted;  bond.  Ko  judge  shall  grant  an  injunc- 
tion, restraining  order  or  other  process  staying  or  affecting,  during 
the  pending  of  any  appeal,  the  enforcement  of  any  determination 
of  the  corjioration  commission  fixing  rates  or  fares,  without  requir- 
ing as  a  condition  precedent  the  executing  and  filing  with  the  cor- 
poration commission  of  a  justified  undertaking  in  the  sum  of  not 
less  than  twenty-five  thousand  dollars  for  any  company  whose  road 
is  of  less  length  than  fifty  miles,  and  fifty  thousand  dollars  for  any 
company  whose  road  is  over  fifty  miles  in  length,  conditioned  that 
the  company  will  make  and  file  with  the  corporation  commission 
a  sworn  statement  every  three  months  during  the  pending  of  the 
appeal  of  the  items  of  freight,  with  names  of  shippers,  carried 
over  such  company's  road  within  the  pi-eceding  ninety  days,  show- 
ing the  freight  charged  and  those  fixed  by  the  corporation  commis- 
sion ;  and  in  the  event  the  determination  of  the  corporation  com- 
mission appealed  from  is  affirmed  in  part  or  in  whole  such  com- 
pany shall  within  thirty  days  pay  into  the  treasury  of  North  Caro- 
lina the  aggregate  difference  between  the  freights  collected  and  those 
fixed  by  the  final  determination  of  the  matter  appealed. 

1899,   c.    164.  s.   7. 

1083.  Restraining  order  vacated,  when.  Whenever  the  aggre- 
gate difference  between  the  freights  collected  and  those  fixed  by 
the  corporation  commission  shall  equal  or  exceed  the  sum  specified 
in  the  undertaking,  the  corporation  commission  shall  notify  the 
appellant  that  another  justified  undertaking  in  like  sum  and  with 
the  same  conditions  as  the  original  undertaking  is  required  to  be 
executed  and  filed  with  the  corporation  commission.  A  failure 
to  file  with  the  corporation  commission  the  sworn  statement  pro- 
vided for  in  the  preceding  section,  or  any  one  of  them  when  more 
than  one  is  required  or  asked  for,  or  a  failure  to  give  an  additional 
undertaking  when  required  within  fifteen  days  from  notice  so  to 
do,  shall  vacate  and  render  null  and  void  any  restraining  order, 
injunction  or  other  process  to  stay  the  enforcement  of  any  determi- 
nation of  the  corporation  commission  as  to  schedules  of  rates. 

1899,  c.  104,  s.  7. 

1084.  Suits  on  injunction  bond.  When  any  of  the  conditions  of 
such  undertakini;'  arc  broken  it  may  be  sued  on  and  enfurccd  in 
the  name  of  the  state  of  North   Carolina  on  the  relation  of  the 


1US4         CORPORATION  COMMIS.— F.  Injunction.         Cb.  20 

corporation  commission  by  summons  returnable  to  the  superior  court 
of  any  county  in  the  state  at  a  regular  term  thereof.  The  solicitor 
of  the  district  shall  prosecute  the  action  in  his  court  on  behalf  of 
the  state,  and  shall  be  allowed  such  fees,  to  be  taxed  in  the  bill  of 
costs,  as  the  court  may  order;  and  the  attorney-general  shall  prose- 
cute on  apjseal  to  the  supreme  court  on  behalf  of  the  state  and  shall 
be  allowed  such  fees,  to  be  taxed  in  the  bill  of  costs,  as  the  court 
shall  allow. 

1899,  e.  164.  s.  7. 

1085.  What  recovered;  application  of  recovery.  In  cases  where 

the  sworn  statements  herein  required  to  be  made  are  not  made  the 
whole  penalty  of  the  undertaking  shall  be  enforced  and  paid  into 
the  state  treasury.  The  sums  paid  into  the  treasury  under  the  pro- 
visions of  this  section  shall  be  used  to  reimburse  the  shippers  of 
freights  for  the  excess  of  freights  paid  over  what  should  have  been 
paid,  such  reimbursements  to  be  made  on  recommendation  of  the 
corporation  commission :  Provided,  application  therefor  is  made 
within  one  year  after  the  determination  of  the  appeal  in  which  the 
undertaking  was  given.  The  recovery  in  each  undertaking  shall 
be  applied  to  such  excess  of  freights  as  has  been  paid  during  the 
period  covered  by  such  undertaking. 

1899,  c.   164,  s.  7. 

VI.     Penalties. 

1086.  For  violating  rules.  If  any  railroad  company  doing  busi- 
ness in  this  state  by  its  agents  or  employees  shall  be  guilty  of  a  vio- 
lation of  the  rules  and  regulations  provided  and  prescribed  by  the 
commission,  and  if  after  due  notice  of  such  violation  given  to  the 
principal  officers  thereof,  if  residing  iu  the  state,  or,  if  not,  to  the 
manager  or  superintendent  or  secretary  or  treasurer  if  residing  in 
the  state,  or  if  not  then  to  any  local  agent  thereof,  ample  and  full 
recompense  for  the  wrong  or  injury  done  thereby  to  any  person 
(ir  corporation  as  may  be  directed  by  the  commission  shall  not 
be  made  Avithin  thirty  days  from  the  time  of  such  notice,  such 
company  shall  incur  a  penalty  for  each  offense  of  five  hundred  dol- 


1087.    Refusing  to  obey  orders  of  commission.   Any  railroad 

ur  other  corporation  which  violates  any  of  the  provisions  of  this 
chapter  or  refuses  to  conform  to  or  obey  any  rule,  order  or  regula- 
tion of  the  corporation  commission  shall,  in  addition  to  the  other 
penalties  prescribed  in  this  chapter,  forfeit  and  pay  the  sum  of  five 
hundred  dollars  for  each  offense,  to  be  recovered  in  an  action  to  be 


10S7         CORPORATION  COMMIS.— 17.  Penalties.         Ch.  20 

instituted  in  the  superior  court  of  Wake  county,  in  the  name  of  the 
state  of  North  Carolina  on  the  relation  of  the  corporation  commis- 
sion ;  and  each  day  such  company  continues  to  violate  any  provis- 
ion of  this  chapter  or  continues  to  refuse  to  obey  or  perform  any 
rule,  order  or  regulation  prescribed  by  the  corporation  commission 
shall  be  a  separate  offense. 
1890,  e.  104,  s.  23. 

1088.  Discrimination  between  connecting  lines.   All  common 

carriers  subject  to  the  provisions  of  this  cliapter  shall  according  to 
their  powers  afford  all  reasonable,  proper  and  equal  facilities  for 
the  interchange  of  traffic  between  their  respective  lines  and  for  the 
forwarding  and  delivering  of  passengers  and  freights  to  and  from 
their  several  lines  and  those  connecting  therewith,  and  shall  not 
discriminate  in  their  rates  and  charges  against  such  connecting  lines, 
and  connecting  lines  shall  be  required  to  make  as  close  connection 
as  practicable  for  the  convenience  of  the  traveling  public.  And 
common  carriers  shall  obey  all  rules  and  regulations  made  by  the 
commission  relating  to  trackage. 
1899,  c.  164,  s.  21. 

1089.  Failure  to  make  reports.  Every  officer,  agent  or  employee 
of  any  railroad  company,  express  or  telegraph  company  who  shall 
Avilfully  neglect  or  refuse  to  make  and  furnish  any  report  required 
by  the  commission  for  the  purposes  of  this  chapter,  or  who  shall 
wilfully  or  unlawfully  hinder,  delay  or  obstruct  the  commission 
in  the  discharge  of  the  duties  hereby  imposed  upon  it,  shall  forfeit 
and  pay  five  hundred  dollars  for  each  offense,  to  be  recovered  in  an 
action  in  the  name  of  the  state.  A  delay  of  ten  days  to  make  and 
furnish  such  report  shall  raise  the  presumption  that  the  same  was 
wilful. 

1899,  c.  164,  s.   18. 

1090.  General  offenses.  If  any  railroad  company  shall  violate 
the  provisions  of  this  chapter  not  otherwise  provided  for,  such  rail- 
road company  shall  incur  a  penalty  of  one  hundred  dollars  for  each 
violation,  to  be  recovered  by  the  party  injured. 

1899,  c.  164,  s.  17. 

1091.  Violation  of  rules,  causing  injury;  damages;  limitation. 

If  any  railroad  company  doing  business  in  this  state  shall,  in  viola- 
tion of  any  rule  or  regulation  provided  by  the  coimnission,  inflict 
any  wrong  or  injury  on  any  person,  such  person  shall  have  a  right 
of  action  and  recovery  for  such  wrong  or  injury,  in  any  court  having 
jurisdiction  thereof,  and  the  damages  to  be  recovered  shall  be  the 
same  as  in  an  action  between  individuals,  ('xccjit  that  in  case  uf  wil- 


1.091         CORPORATION  COMMIS.— FZ.  Penalties.         Ch.   20 

fill  violation  of  law  such  railroad  company  s^hall  be  liable  to  exem- 
plary damages:  Provided,  that  all  suits  under  this  chapter  shall 
be  brought  within  one  year  after  the  commission  of  the  alleged  wrong 
or  injury. 

189!).  e.   104,  s.   16. 

1092.  Action  for,  when  and  how  brought.  An  action  for  the 

recovery  of  any  penalty  under  this  chapter  shall  be  instituted  in  the 
county  in  which  the  penalty  has  been  incurred,  and  shall  be  insti- 
tuted in  the  name  of  the  state  of  North  Carolina  on  the  relation  of 
the  corporation  commission  against  the  company  incurring  such 
penalty;  or  whenever  such  action  is  upon  the  complaint  of  any 
injijred  person  or  corporation,  it  shall  be  instituted  in  the  name  of 
the  state  of  North  Carolina  on  the  relation  of  the  corporation  com- 
mission upon  the  complaint  of  such  injured  person  or  corporation 
against  the  company  incurring  such  penalty.  Such  action  shall  be 
instituted  and  prosecuted  by  the  attorney  general  or  the  solicitor  of 
the  judicial  district  in  which  siich  penalty  has  been  incurred,  and  the 
judge  before  whom  the  same  is  tried  shall  determine  the  amount  of 
compensation  to  be  allowed  the  attorney  general  or  such  solicitor 
prosecuting  said  action  for  his  services,  and  such  compensation  so 
determined  shall  be  taxed  as  part  of  the  cost.  The  procedure  in 
such  actions,  the  right  of  a])]ieal  and  the  rule-;  regulating  appeals 
shall  be  the  same  as  are  now  provided  by  law  in  other  civil  actions. 

1899,  c.   164.  s.   15. 

1093.  Remedies  cumulative.  The  remedies  given  by  this  chap- 
ter to  persons  injured  shall  be  regarded  as  cumulative  to  the  reme- 
dies now  given  or  which  may  be  given  by  law  against  railroad  corpo- 
rations, and  this  chapter  shall  not  be  construed  as  repealing  any 
statute  giving  such  remedies. 

1899,  e.  164,  s.  26. 

VII.     Jurisdiction. 

1094.  Delivering  freight,  express  and  baggage.  The  corpora- 
tion commission  shall  make  reasonable  and  just  rules — 

1.  For  the  handling  of  freight  and  baggage  at  stations. 

2.  As  to  charges  by  any  company  or  corporation  engaged  in  the 
carriage  of  freight  or  express  for  the  necessary  handling  and  delivery 
of  the  same  at  all  stations. 

1899,  c.    164,   s.   2,   subsecs.   2.    7. 

1095.  Prevent  discriminations.  The  corporation  commission  shall 
make  reasonable  and  just  rules  and  regulations — 

1.  To  prevent  discrimination  in  the  transportation  of  freight  or 
passengers. 

299 


1095     CORPORATIOX  COMMIS.— T/7.  Jurisdiclion.     Ch.   20 

2.  To  prevent  the  giving,  paving  or  receiving  of  any  rebate  or 
bonus,  directly  or  indirectly,  or  the  misleading  or  deceiving  tlie  ])nb- 
lic  in  any  manner  as  to  real  rates  charged  for  freight,  express  or 
passengers. 

1899,   c.    164,   s.   2,   subsecs.   3,   5. 

1096.  Telegraph  and  telephone  rates.   The  commission  shall 

have  jjower  and  are  directed  to  make  just  and  reasonable  rates  of 
charges  for  the  transmission  of  messages  b^'  any  telegraph  or  tele- 
phone company  or  cori^oration  doing  business  in  this  state,  and  for 
the  rental  of  telephones. 

1899,  c.   164,  s.  2,  subsecs.    10,    11. 

1097.  Stations  and  depots.  The  commission  is  empowered  and 
directed — 

1.  To  require,  where  the  public  necessity  demands  and  it  is  dem- 
onstrated that  the  revenue  received  will  be  sufficient  to  justify  it, 
the  establishment  of  stations  by  any  company  or  corporation  engaged 
in  the  transportation  of  freight  and  passengers  in  this  state,  and  to 
recpiire  the  erection  of  depot  accommodations  commensurate  with 
such  business  and  revenue:  Provided,  the  commissioners  shall  not 
require  any  company  or  corporation  to  establish  any  station  nearer 
to  another  station  than  five  miles. 

1899,  c.  164,  s.  2,  subsec.  12. 

2.  To  require  a  change  of  any  station  or  the  repairing,  addition  to, 
or  change  of  any  station  house  by  any  railroad  or  other  transporta- 
tion company  in  order  to  promote  the  security,  convenience  and 
accommodation  of  the  public  and  to  require  the  raising  or  lowering 
of  the  track  at  any  crossing  when  deemed  necessary. 

1899,  c.   164.   s.   2,   subsec.    13. 

3.  To  require  when  practicable,  and  when  the  necessities  of  the 
case,  in  the  judgment  of  the  corporation  connnission,  rcipiirc,  any 
two  or  more  railroads  which  now  or  hereafter  may  enter  any  city 
or  to'wn  to  have  one  common  or  union  passenger  depot  for  the  secu- 
rity, accommodation  and  convenience  of  traveling  public,  and  to 
unite  in  the  joint  undertaking  and  expense  of  erecting,  constructing 
and  nuiintiiining  such  union  ]iasscng('r  dejiot,  commensurato  with 
the  business  and  revenvies  of  such  railroad  companies  or  corporation, 
on  such  terms,  regulations,  provisions  and  conditions  as  the  com- 
n;ission  shall  prescribe.  The  railroads  so  ordered  to  construct  a 
union  depot  .shall  have  power  to  condemn  land  for  such  purpose,  as 
in  case  of  locating  and  constructing  a  line  of  railroad :  Provided, 
that  nothing  in  this  section  shall  be  construed  to  authorize  the  com- 
mission to  rctpiire  the  construction  nf  sucli  \iiii(iii   drpot   slinnld   the 


1097       COEPORATIOF  COMMIS.— F//.  Jurisdiction.     Ch.  20 

railroad  coinpanies  at  the  time  of  application  for  said  order  have  sepa- 
rate depots,  which,   in  the  opinion  of  the  corporation  commission, 
are  adequate  and  convenient  and  offer  suitable  accommodations  for 
the  traveling  public. 
1903,  c.  126. 

4.  To  require  the  establishment  of  separate  waiting-rooms  at  all 
stations  for  the  white  and  colored  races. 

1899,  0.  164,  «.  2,  subsee.  14. 

5.  To  require  the  construction  of  side  tracks  by  any  railroad  com- 
pany to  industries  already  established  or  to  be  established :  Provided, 
it  is  shown  that  the  proportion  of  such  revenue  accruing  to  such 
side  track  is  sufficient  within  five  years  to  pay  the  expenses  of  its 
construction.  This  shall  not  be  construed  to  give  the  commission 
authority  to  require  railroad  companies  to  construct  side  tracks 
more  than  five  hundred  feet  in  length. 

1899,  e.  164,  s.  2,  subsee.  15. 

1098.  Depots  not  abandoned.  A  railroad  corporation  which  has 
established  and  maintained  for  a  year  a  passenger  station  or  freight 
depot  at  a  point  upon  its  road  shall  not  abandon  such  station  or  depot, 
nor  substantially  diminish  the  accammodation  furnished  by  the  stop- 
ping of  trains  except  by  consent  of  the  commission.  Freight  or  pas- 
senger depots  may  be  relocated  upon  the  written  approval  of  the  com- 
mission. 

1899,  e.  164,  ss.  19,  20. 

1099.  Freight  and  passenger  rates.  The  commission  shall  make 

reasonable  and  just  rates — 

1.  Of  freight,  passenger  and  express  tariffs  for  railroads,  street 
railways,  steamboats,  canal  and  express  companies  or  corporations, 
and  all  other  transportation  companies  or  corporations  engaged  in 
the  carriage  of  freight,  express  or  passengers. 

2.  For  the  through  transportation  of  freight,  express  or  passen- 
gers. 

3.  Of  charges  for  the  transportation  of  packages  by  any  express 
company  or  corporation. 

4.  Of  charges  for  the  use  of  railroad  cars  carrying  freight  or 
passengers. 

5.  And  rules  and  regulations  as  to  contracts  entered  into  by  any 
railroad  company  or  corporation  to  carry  over  its  line  or  any  part 
thereof  the  car  or  cars  of  any  other  company  or  corporation. 

6.  And  shall  make,  reqiiire  or  approve  what  is  known  as  "milling- 
in-transit"  rates  on  grain ;  or  lumber  to  be  dressed  and  shipped  over 
the  line  of  the  railroad  company  on  which  such  freight  originated. 


1099      COEPORATIOX   COMMIS.— T7/.  Jurisdiction.     Ch.   20 

7.  And,  conjoiutlv  with  such  railroad  comi>auies,  shall  have 
authority  to  make  special  rates  for  the  purpose  of  developing  all 
manufacturing,  mining,  milling  and  internal  improvements  in  the 
state. 

Nothing  in  this  chapter  shall  prohibit  railroad  or  steamboat  com- 
panies from  making  special  passenger  rates  with  excursion  or  other 
parties,  also  rates  on  such  freights  as  are  necessary  for  the  comfort 
of  such  i^arties,  subject  to  the  ajjproval  of  the  commission. 

1899,  c.   164,  ss.  2,   14;    1903,  c.  683. 

1100.  Demurrage;  storage;  placing  and  loading  of  cars.   The 

commission  shall  make  rules,  regulations  and  rates  governing  demur- 
rage and  storage  charges  by  railroad  companies  and  other  transpor- 
tation companies ;  and  shall  make  rules  governing  railroad  companies 
in  the  placing  of  cars  for  loading  and  unloading  and  in  fixing  time 
limit  for  delivery  of  freights  after  the  same  have  been  received  by 
the  transjjortation  companies  for  shipment. 
1903,  c.  342. 

1101.  May  fix  rate  of  speed  trains  may  run  ttirough  a  town; 

petition  to  be  filed;  procedure.  If  any  railroad  company  shall  be 
of  the  opinion  that  an  ordinance  of  a  city  or  town  through  which 
a  line  of  its  railroad  passes,  except  in  the  counties  of  Cumberland, 
Rockingham,  Union  and  Wayne,  regulating  the  speed  at  which  trains 
may  run  while  passing  through  said  city  or  town,  is  unreasonable  or 
oppressive,  such  railroad  company  may  file  its  ]ietition  before  the  cor- 
poration commission,  setting  forth  all  the  facts,  and  asking  relief 
against  such  ordinance,  and  that  the  corporation  commission  pre- 
scribe the  rate  of  speed  at  which  trains  may  run  throiigh  said  munici- 
pality. Upon  the  filing  of  the  petition  a  copy  thereof  shall  be  mailed, 
in  a  registered  letter,  to  the  mayor  or  chief  officer  of  the  town  or 
municipality,  together  with  a  notice  from  the  corporation  com- 
mission, setting  forth  that  on  a  day  named  in  the  notice  the  petition 
of  the  railroad  company  will  be  heard,  and  that  the  city  or  town 
named  in  the  ]ietition  will  be  heard  at  that  time  in  opposition  to 
the  prayer  of  the  petition.  And  \ipon  the  return  day  of  the  notice 
the  corporation  commission  shall  hear  the  petition:  Provided,  that 
any  hearing  granted  by  the  corporation  commission,  as  authorized  by 
tliis  section,  shall  be  had  at  the  town,  city  or  locality  where  the 
conditions  complained  of  are  alleged  to  exist,  or  some  member  of 
the  said  commission  shall  take  evidence  both  for  the  petition  and 
against  it,  at  such  city,  town  or  locality,  and  report  to  the  full  com- 
mission before  any  decision  is  made  by  the  connnission. 
1903,  c.  552. 


,  1103     COEPORATIOJsT   COMMIS.— 17/.  Jurisdiction.      Cli.   20 

1102.  To  pass  on  ordinance,  and  fix  rate  of  speed.   Either 

party,  petitioner  or  respondent,  sliall  have  the  right  to  introduce 
testimony  and  to  be  heard  by  counsel,  and  the  corporation  com- 
mission, after  hearing  the  petition,  answer,  evidence  and  argument, 
shall  render  judgment  thereon.  If  the  commission  shall  find  that 
such  ordinance  is  reasonable  and  just  the  petition  shall  be  dismissed, 
and  the  petitioner  shall  pay  all  the  costs  to  be  taxed  by  the  clerk 
to  the  corporation  commission.  If  the  corporation  commission  shall 
be  of  the  opinion  that  the  ordinance  is  imreasonable,  it  shall  so 
adjudge;  and  in  addition  thereto  it  shall  prescribe  the  maximum 
rates  of  speed  for  passing  through  such  town.  And  thereafter  the 
railroad  company  may  run  its  trains  through  such  town  or  city 
at  speeds  not  greater  than  those  prescribed  by  the  corporation  com- 
mission, and  the  ordinance  adjudged  to  be  unreasonable  shall  not 
be  enforced  against  such  railroad  company. 
1903,  c.  552,  s.  2. 

1103.  When  costs  on  hearing  to  fix  rate  of  speed  in  discretion 

of  commission.  If  the  judgment  of  the  corporation  commission  shall 
be  in  favor  of  the  petitioner,  it  shall  be  lawful  for  the  corporation 
commission  to  make  such  order  as  to  the  payment  of  the  costs  as  shall 
seem  just.  It  may  require  either  party  to  pay  the  same  or  it  may 
divide  the  same.  The  costs  in  such  proceeding  shall  be  the  same  as 
are  fixed  by  law  for  similar  services  in  the  superior  court. 
1903,  c.  552,  s.  3. 

VIII.     Eates. 

1104.  How  fixed.  In  fixing  any  maximum  rate  or  charge,  or 
tariff  of  rates  or  charges  for  any  common  carrier,  person  or  corpora- 
tion subject  to  the  provisions  of  this  chapter  the  commission  shall 
take  into  consideration  if  proved,  or  may  require  proof  of,  the 
value  of  the  property  of  such  carrier,  person  or  corporation  used 
for  the  public  in  the  consideration  of  such  rate  or  charge  or  the 
fair  value  of  the  service  rendered  in  determining  the  value  of  the 
property  so  being  used  for  the  convenience  of  the  public.  It  shall 
furthermore  consider  the  original  cost  of  the  construction  thereof 
and  the  amount  expended  in  permanent  improvements  thereon  and 
the  present  compared  with  the  original  cost  of  construction  of  all  its 
property  within  the  state;  the  probable  earning  capacity  of  such 
property  under  the  particular  rates  proposed  and  the  sum  required 
to  meet  the  operating  expenses  of  such  carrier,  person  or  corporation 
and  all  other  facts  that  will  enable  them  to  determine  what  ai-e  reason- 
able and  just  rates,  charges  and  tariffs. 

1899,  c.  164,  s.  2,  subsec.  1. 


1105  CORPORATION  COiOIIS.— 17//.  Bates.  Ch.  20  ': 

n05.  What  may  be  carried  free.  Nothing  in  this  chapter  shall 

prevent  the  carriage,  storage  or  handling  of  property  free  or  at 
reduced  rates  for  the  United  States,  states  or  municipal  governments 
or  for  charitable  or  educational  purposes;  or  for  any  corporation 
or  association  incorporated  for  the  preservation  and  adornment  of 
any  historic  spot,  or  to  the  employees  or  officers  of  such  company  or 
association  while  traveling  in  the  performance  of  their  duties,  pro- 
vided they  shall  not  travel  further  than  ten  miles  one  way  on  any 
one  trip  free  of  charge  or  to  or  from  fairs  or  exhibitions  for  exhibi- 
tion thereat;  or  the  free  carriage  of  destitute  and  homeless  persons 
transported  by  charitable  societies,  and  the  necessary  agents  em- 
ployed in  such  transportation,  or  the  free  transportation  of  per- 
sons traveling  in  the  interest  of  orphan  asylxmis  or  homes  for  the 
aged  and  infirm,  or  any  department  thereof,  or  ex-Confederate  sol- 
diers attending  annual  reunions,  or  the  iss\iance  of  mileage,  excur- 
sion or  commutation  passenger  tickets ;  or  to  prohibit  any  common 
carrier  from  giving  reduced  rates  to  ministers  of  religion,  or  to 
municipal  governments  for  the  transportation  of  indigent  persons, 
or  to  inmates  of  national  homes  or  state  homes  for  disabled  volun- 
teer soldiers,  and  of  soldiers'  and  sailors'  orphan  homes,  including 
those  about  to  enter  and  those  retui'ning  home  after  discharge  imder 
arrangements  with  the  boards  of  managers  of  said  homes;  or  to 
prevent  railroads  from  giving  free  carriage  to  their  O'wm  officers  and 
employees  and  members  of  their  families,  or  to  prevent  the  principal 
officers  of  any  railroad  company  from  exchanging  passes  or  tickets 
with  other  railroad  companies  for  their  officers  or  employees.  Noth- 
ing in  this  section  shall  be  construed  to  prevent  or  restrict  transporta- 
tion companies  from  contracting  with  newspapers  for  advertising 
space  in  exchange  for  transportation  over  their  lines  to  such  an  extent 
as  may  be  agreed  upon  between  the  tAvo  parties  for  said  consideration. 
The  commissioners  and  their  clerks  shall  be  transported  free  of  charge 
over  all  railroads  and  other  transportation  lines  which  are  \mder 
tlio  supervision  of  the  conunission ;  and  when  traveling  on  official 
business  they  may  take  with  them  experts  or  other  agents  whose 
service  they  may  deem  temporarily  of  public  importance. 

1809,  c.  164,  s.  22;  1809.  c.  642;  1901.  c.  679.  s.  2;  1901,  c.  652;  190.5.  c.  312. 

1106.  Revision  of  rates.  The  commission  shall  from  time  to 
time,  and  as  often  as  circumstances  may  require,  change  and  revise 
or  cause  to  be  changed  and  revised  any  schedules  of  rates  fixed  by 
the  commission,  or  allowed  to  be  charged  by  any  carrier  of  freight, 
passengers,  or  express,  or  by  any  telegrapli  or  telephone  company. 

1899,  c.  164.  s.  7. 

1107.  Long  and  short  hauls.  It  siiall  be  unlawful  for  any  com- 
mon carrier  to  charge  or  receive  any  greater  compensation   in   the 

304 


i](i7  COKPORATION  COMMIS.— T7/7.  //a/e.s.  Ch.  20 

aiiiircgate  for  the  transportation  of  passengers  or  of  like  kind  of 
pmperty  under  substantially  similar  circumstances  and  conditions 
for  a  shorter  than  for  a  longer  distance  over  the  same  line  in  the 
same  direction,  the  shorter  being  included  within  the  longer  dis- 
tance; but  this  shall  not  be  construed  as  authorizing  any  common 
carrier  within  the  terms  of  this  chapter  to  charge  and  receive  as 
great  compensation  for  a  shorter  as  for  a  longer  distance:  Provided, 
however,  that  upon  application  to  the  commission,  such  common  car- 
rier may  in  special  cases  be  authorized  to  charge  less  for  longer  than 
for  shorter  distances  for  the  transportation  of  passengers  or  property ; 
and  the  commission  may  from  time  to  time  prescribe  the  extent  to 
which  such  designated  common  carrier  may  be  relieved  from  the 
operation  of  this  section :  Provided,  that  nothing  in  this  chapter 
contained  shall  be  taken  as  in  any  manner  abridging  or  controlling 
the  rates  of  freight  charged  by  any  railroad  in  this  state  for  con- 
veying freight  which  comes  from  or  goes  beyond  the  boundaries 
of  the  state  and  on  which  freight  less  than  local  rates  on  any  rail- 
road carrying  the  same  are  charged  by  such  railroads. 

1899,  c.   104,  s.   14. 

1108.  Contracts  as  to  rates.  All  contracts  ~and' Agreements 
between  railroad  companies  as  to  rates  of  freight  and  passenger 
tariffs  shall  be  submitted  to  the  commission  for  inspection  and  cor- 
rection, that  it  may  be  seen  whether  or  not  they  are  a  violation  of 
law  or  of  the  rules  and  regulations  of  said  commission,  and  all 
arrangements  and  agreements  whatever  as  to  the  division  of  earn- 
ings of  any  kind  by  competing  railroad  companies  sliall  be  sub- 
mitted to  the  commission  for  inspection  and  approval  in  so  far  as 
they  affect  the  rules  and  regulations  made  by  the  commission  to 
secure  to  all  persons  doing  business  with  such  companies  just  and 
reasonable  rates  of  freight  and  j^assenger  tariffs,  and  the  com- 
mission may  make  such  rules  and  regulations  as  to  such  contracts 
and  agreements  as  may  then  be  deemed  necessary  and  proper,  and 
any  such  agreements  not  approved  by  the  commission,  or  by  \'irtue 
of  which  rates  shall  be  charged  exceeding  the  rates  fixed  for  freight 
and  passengers,  shall  be  deemed,  held  and  taken  to  be  violations  of 
this  chapter  and  shall  be  illegal  and  void. 

1899,  e.   164,  s.  C. 

1109.  Published.  All  carriers  shall,  whenever  required  by  the 
commission,  file  with  it  a  schedule  of  their  rates  of  charges  for 
freight  and  passengers,  and  the  commission  is  authorized  and 
reqtxired  to  publish  the  rates,  or  a  summary  thereof,  in  some  con- 
venient form  for  the  information  of  the  public,  and  quarterly  there- 
after the  changes  made  in  such  schedttles  if  they  deem  it  advisable. 

1899,  c.  164,  s.  7. 

Rcv.Vol.  I— 16  305 


1110  COKPOKATIOX  CO:\rMIS.— TV//.  Bates.  Ch.  20 

1110.  Interstate  commerce.  Upon  the  complaint  of  any  person 
to  the  commission  of  any  unjnst  discrimination  in  carrying  freight 
which  comes  from  or  goes  beyond  the  boundaries  of  the  state  by 
any  railroad  company,  whether  organized  under  the  laws  of  this 
state  or  of  another  state  and  doing  business  in  this  state,  the  com- 
mission shall  investigate  such  complaint,  and  if  the  same  be  sus- 
tained it  sliall  be  the  duty  of  the  commission  to  bring  such  complaint 
before  the  interstate  commerce  commissiim  for  redress  in  accordance 
with  the  provisions  of  the  act  of  Congi-ess  establishing  the  inter- 
state commerce  commission.  They  shall  receive  upon  application  the 
services  of  the  attorney  general  of  the  state  and  he  sliall  represent 
them  before  the  interstate  commerce  commission. 

1899,  e.  164,  s.  14. 

1111.  Duplicate  freight  receipts;  charges  stated;  freight  deliv- 
ered on  payment  of  charges.  All  railroad  companies  shall  on 
demand  issue  duplicate  freight  receipts  to  shippers  in  which  shall 
be  stated  the  class  or  classes  of  freight  shipped,  the  freight  charges 
over  the  road  giving  the  receipt,  and  so  far  as  practicable  shall  state 
the  freight  charges  over  the  roads  that  carry  such  freight.  ^Yhen 
the  consignee  presents  the  railroad  receipt  to  the  agent  of  the  rail- 
road that  delivers  such  freight  such  agent  shall  deliver  the  articles 
shipped  upon  payment  of  the  rate  charged  for  the  class  of  freight 
mentioned  in  the  receipt. 

1899,  c.   164,  s.   17. 

1112.  Schedule  of  rates,  evidence.  The  schedule  containing 
rates  fi.xed  by  the  conunission  shall,  in  suits  brought  against  any  com- 
pany wherein  is  involved  the  charges  of  any  companj'  for  the  trans- 
portation of  any  passenger  or  freight  or  cars  or  unjust  discrimina- 
tion in  relation  thereto,  be  taken  in  all  courts  as  prima  facie  evi- 
dence that  the  rates  therein  fixed  are  just  and  reasonable  rates  of 
charges  for  the  transportation  of  passengers  and  freights  and  cars 
upon  the  railroads.  All  such  schedules  sliall  be  received  and  held  in 
all  suits  as  prima  facie  evidence,  the  schedules  of  the  commission 
Avithout  further  proof  than  the  production  of  the  schedules  desired 
to  be  used  as  evidence,  with  a  certificate  of  the  clerk  of  the  com- 
mission that  the  same  is  a  true  copy  of  the  schedule  jirepared  or 
approved  by  it  for  the  railroad  company  or  corporation  therein 
named. 

1899,  e.  164,  s.  7. 

IX.     Duties. 

1113.  Notice  given  of  violations;  suits  instituted.  The  conunis- 

sion,   whenever  in   its   judgment  any   cor|)oration    has   violated   any 
law,  sliall  give  notice  thereof  in  writing  to  such  corjioration,  and,  if 


1113  CORPOKATIOX  COMMIS.— /.Y.  Duties.  Ch.  20 

the  violation  or  neglect  is  continued  after  such  notice  shall  forth- 
^\ith  present  the  facts  to  the  attorney  general,  who  shall  take  such 
liroceedings  thereon  as  he  may  deem  expedient. 
1890,  c.  164,  s.  8. 

1114.  Fees  paid  to  treasurer.  All  license  fees  and  seal  tax  and 
all  other  fees  jiaid  into  the  office  of  the  corporation  commission  shall 
be  turned  into  the  state  treasury ;  also  all  moneys  received  from  tines 
and  penalties. 

1899,  c.   164,   ss.   33,  26. 

1115.  Record  of  receipts  and  disbursements.  The  commission 

shall  keejD  a  record  showing  in  detail  all  receipts  and  disbursements. 
1899,  c.  164,  s.  34. 

1116.  Fiscal  year.  The  fiscal  year  for  which  all  reports  shall  be 
made  which  may  be  required  of  any  railroad  or  transportation  com- 
pany by  the  commission  under  this  chapter  shall  end  on  the  thirtieth 
of  June. 

1899,  c.   164,  s.  28. 

1117.  Report  of  commission.  It  shall  be  the  duty  of  the  com- 
mission to  make  to  the  governor  annual  reports  of  its  transactions, 
and  recommend  from  time  to  time  such  legislation  as  it  may  deem 
advisable  under  the  provisions  of  this  chapter,  and  the  governor  shall 
have  one  thousand  copies  of  such  report  printed  for  distribution. 

1899,  c.   164,  s.  27. 

1118.  Expenses.  All  the  expenses  of  the  commission,  except  as 
otherwise  provided  by  law,  including  all  necessary  expenses  for 
transportation  incurred  by  the  commissionei's  or  by  their  employees 
under  their  orders  in  making  any  investigation,  or  upon  official 
business,  or  for  any  other  purposes  necessary  for  carrying  out  the 
provisions  of  this  chapter,  and  necessary  furniture,  stationery,  post- 
age, lights  and  heat,  shall  be  allowed,  and  the  auditor  shall  issue 
his  warrant  iipon  presentation  of  itemized  vouchers  therefor  ap- 
proved by  the  chairman  of  the  commission :  Provided,  that  the 
expenses  allowed  under  this  section  shall  not  exceed  three  thousand 
six  hundred  dollars  annually. 

1899,  c.   164,  s.  32;    1899,  c.  688. 


Note.     For  servant  for  commission,  see  s.  2762. 

X.     Tax  Commissioners. 

1119.  Tax  commissioners.  The  members  of  the  corporation  com- 
mission shall  constitute  a  board. of  ''State  Tax  Commissioners,"  with 
the  powers  and  duties  prescribed  by  law. 

1901,  c.  7,  ss.  1,  3;   1903,  c.  251,  ss.  1,  3. 
SOT 


1120        CORPORATIOX  COMMIS.— X.  Tax  Comrs.        Ch.   20 

1 1 20.  Oath  of  office.  The  members  of  said  board  shall  take  and 
subscribe  the  constitutional  oath  of  office,  to  be  filed  with  the  secretary 
of  state. 

1905,  c.  590,  s.  3. 

1 121.  Clerks  to;  and  compensation.  Said  board  may  employ  such 
clerks  as  in  their  judii'inent  tliey  may  deem  necessary  to  put  into  proper 
execution  the  provisions  of  this  subcha]iter.  The  persons  so  elected 
shall  hold  office  durine;  the  pleasure  of  said  board,  and  a  record  of  all 
the  proceedings  of  said  board  shall  be  kept,  -which  record,  with  all 
other  papers  or  proceedings  of  said  Iward,  shall  be  a  part  of  the  record 
of  the  board  of  corporation  commissioners,  and  of  which  the  clerk  of 
said  board  of  corporation  commissioners  shall  be  the  lawful  custodian, 
and  who,  when  the  board  is  not  in  session,  shall  also  have  oversight  of 
the  clerical  force  and  have  performed  such  duties  as  are  directed  by 
the  board. 

1905,  c.  590,  s.  2. 

1122.  When  to  meet;  special  meetings.  Said  board  shall  hold 

reg-ular  meetings  on  the  first  Tuesday  of  March,  June,  July,  August. 
September  and  October  of  each  year,  unless  said  dates  are  changed  by 
order  of  the  board,  of  which  changes  due  notice  shall  be  given,  and 
may  hold  adjourned  sessions  as  may  be  deemed  necessary  by  it  for  the 
proper  performance  of  the  duties  devolving  iipon  said  board.  The 
chairman  may  call  special  sessions  of  the  board  whenever  and  wher- 
ever in  the  state  he  may  deem  it  advisable  so  to  do,  and  shall  call  such- 
special  sessions  upon  the  written  request  of  two  members. 
1905,  c.  590,  s.  5. 

1 123.  Examination  of  records,  etc.  The  said  board,  and  the  mem- 
bers thereof,  shall  have  access  to  all  books,  papers,  documents,  state- 
ments and  accounts  on  file  or  of  record  in  any  of  the  departments  of 
state,  subject  to  the  rules  and  regulations  of  the  respective,  depart- 
ments relative  to  the  care  of  the  public  records.  It  shall  have  like 
access  to  all  books,  papers,  docimients,  statements  and  accounts  on  file 
or  of  record  in  counties,  townships  and  municipalities.  Said  board 
shall  have  the  right  to  subpoena  witnesses,  upon  a  subpoena  signed  by 
the  chairman  of  said  board,  directed  to  such  witnesses,  which  subpoena 
may  be  served  by  any  person  authorized  to  serve  subp(pnas  from  courts 
of  record  in  this  state,  and  the  attendance  of  witnesses  may  be  com- 
pelled by  attachment  to  be  issued  by  any  superior  court  upon  proper 
showing  that  such  witness  has  been  properly  subptenaed  and  has 
refused  to  obey  such  subpoena.  The  person  serving  such  subptena 
shall  receive  the  same  compensation  now  allowed  to  sheriffs  and  other 
officers   for   sen-ing   subpoenas.      Said    board    shall    have   power   to 


.1123        COEPOEATIOjS^  COMMIS.— A'.  Tax  Comrs.        Ch.  20 

examine  witnesses  under  oath,  said  oath  to  be  administered  by  any 
member  of  said  board  or  by  the  secretary  thereof. 

1905,  c.  590,  s.  4. 

1124.  Duties  of.  l.  To  have  and  exercise  general  supervision 
over  the  tax-listers  and  assessing  officers  of  this  state^  and  to  take  such 
measures  as  will  secure  the  enforcement  of  the  provisions  of  this  sub- 
chapter, to  the  end  that  all  the  properties  of  this  state  liable  to  assess- 
ment for  taxation  shall  be  placed  upon  the  assessment  rolls  and 
assessed  at  their  true  value  in  money. 

2.  To  confer  with  and  advise  assessing  officers  as  to  their  duties 
under  this  subchapter,  and  to  institute  proper  proceedings  to  enforce 
the  penalties  and  liabilities  provided  by  law  for  public  officers,  officers 
of  corporations  and  individuals  failing  to  comply  with  this  subchap- 
ter ;  to  prefer  charges  to  the  governor  against  assessing  and  taxation 
officers  who  violate  the  law  or  fail  in  the  performance  of  their  duties 
in  reference  to  assessments  and  taxation ;  and  in  the  execution  of 
these  powers  the  said  board  may  call  upon  the  attorney  general  or  any 
prosecuting  attorney  in  the  state  to  assist  said  board. 

;].  To  receive  complaints  as  to  property  liable  to  taxation  that  has 
not  been  assessed  or  has  been  fraudulently  or  improperly  assessed,  and 
to  investigate  the  same,  and  to  take  such  proceedings  as  will  correct 
the  irregularity  complained  of,  if  found  to  exist. 

4.  To  see  that  each  county  in  the  state  be  visited  by  at  least  one 
member  of  the  board  as  often  as  is  necessary,  to  the  end  that  all  com- 
plaints concerning  the  law  of  assessment  and  taxation  may  be  heard; 
that  information  concerning  its  workings  may  be  collected ;  that  all 
assessing  and  taxation  officers  comply  with  the  law,  and  all  violations 
thereof  be  punished,  and  that  all  proper  suggestions  as  to  amendments 
and  change  may  be  made. 

5.  To  require  from  any  register  of  deeds,  clerk  of  court,  mayor 
and  clerk  of  towns,  or  any  other  officer  in  this  state,  on  forms  pre- 
scribed by  said  board  of  state  tax  commissioners,  such  anniial  or 
other  reports  as  shall  enable  said  board  to  ascertain  the  assessed  valua- 
tions of  all  property  listed  for  taxation  throughout  the  state  under 
this  subchapter ;  the  amount  of  taxes  assessed,  collected  and  returned 
delinquent,  and  such  other  matter  as  the  board  may  require,  to  the 
end  that  it  may  have  complete  and  statistical  infonnation  as  to  the 
practical  operation  of  this  subchapter.  That  every  such  officer  men- 
tioned in  this  section  who  shall  wilfully  neglect  or  refuse  to  furnish 
any  report  required  by  the  commissinn,  for  the  ]iurposes  of  this  sub- 
chapter, or  who  shall  wilfully  and  ulLla^\d:'ully  hinder,  delay  or  ob- 
stnict  said  commission  in  the  discharge  of  its  duties,  shall  forfeit  and 
]">ay  one  hundred  dollars  for  each  offense,  to  be  recovered  in  an  action 
in  the  name  of  the  state.  A  delay  of  ten  days  to  make  and  furnisli 
such  report  shall  raise  the  presumption  that  the  same  was  wilful. 


1124       COEPORATIOX   COMMIS.— .1'.  Tax   Comrs.       Ch.  20 

n.  To  make  diligent  investigation  and  inquiry  concerning  the 
revenue  laws  and  systems  of  other  states  and  countries,  so  far  as  the 
same  is  made  known  by  published  reports  and  statistics,  and  can  be 
ascertained  by  correspondence  with  officers  thereof,  and,  with  the  aid 
of  information  thus  obtained,  together  with  experience  and  observa- 
tion of  our  o^^^l  laws,  to  recommend  to  the  general  assembly  at  each 
regular  session  thereof  such  amendments,  changes  or  modifications  of 
onr  revenue  laws  as  seem  proper  and  necessary  to  remedy  injustice 
and  irregularities  in  taxation,  and  to  facilitate  the  assessment  and  col- 
lection of  public  revenues. 

7.  To  further  report  to  the  general  assembly  at  each  regular  session 
thereof,  or  at  such  other  times  as  the  general  assembly  may  direct,  the 
whole  amount  of  taxes  collected  in  the  state  for  all  purposes,  classified 
as  to  state,  coimty,  township  and  mimicipal  purposes,  with  the  sources 
thereof,  the  amount  lost,  the  cause  of  the  loss,  the  proceedings  of 
said  board,  and  such  other  matters  of  information  concerning  the  pub- 
lic revenues  as  it  may  deem  of  public  interest. 

1905,  c.  590,  s.  6. 

1125.   List  of  taxables,  how  revised  by.  After  the  various  tax 

lists  required  to  be  made  imder  this  chapter  shall  have  been  passed 
upon  by  the  county  board  of  equalization,  the  said  several  tax  lists 
shall  be  subject  to  inspection  by  the  said  board  of  state  tax  commis- 
sioners or  by  any  member  thereof ;  and  in  case  it  shall  appear  or  be 
made  to  appear  to  said  board  that  property  subject  to  taxation  has 
been  omitted  from  said  list,  the  said  board  may  issue  an  order  direct- 
ing the  assessor  or  lister,  Avhose  assessments  or  failure  to  assess  are 
complained  against,  to  appear  with  his  tax  list  at  a  time  and  place  to 
be  stated  in  said  order,  and  the  place  to  be  at  the  ofiice  of  the  board 
of  county  conunissioners  at  the  county-seat  or  such  other  place  in 
said  county  in  which  said  roll  was  made,  as  said  board  shall  deem 
most  convenient  for  the  hearing  herein  provided  for.  A  notice  of 
the  time  and  place  that  said  assessor  or  lister  is  ordered  to  appear  with 
said  list  shall  be  published  in  a  newspaper  published  at  the  county- 
seat  in  said  county,  if  there  be  one ;  if  not,  in  some  paper  printed  in 
said  coimty,  if  there  be  any,  at  least  five  days  before  the  time  at  whicii 
said  assessor  or  lister  is  required  to  ap]iear,  and  jiersonal  notice  shall 
be  given  by  mail  to  said  persons  whose  property  or  whose  assessments 
are  to  be  considered,  at  least  five  days  ])rior  to  said  hearing.  A  copy 
of  said  order  shall  be  served  upon  the  tax  ofticcr  in  whose  ])OSsession 
said  list  shall  be,  at  least  three  days  before  he  is  required  to  ap])ear 
with  said  list.  The  said  board,  or  any  member  thereof,  shall  appear 
at  the  time  and  place  mentioned  in  said  order,  and  the  assessing  or 
listing  officer  upon  whom  said  iiotice  shall  have  been  served  shall 
a]i|)ear  also  with  said  tax  list.      The  said  board  or  any  member  thereof. 


Ill's       COKPOEATION  COMMIS.— X.  Tax  Vomrs.       Ch.  20 

n-  the  case  may  be,  shall  then  and  there  hear  and  determine  as  to  the 
]iinper  assessments  of  all  jDroperty  and  persons  mentioned  in  said 
ii'jtice,  and  persons  affected  or  liable  to  be  affected  by  the  review  of 
said  assessments  thus  provided  for  may  appear  and  be  heard  at  said 
hearing.  In  case  said  board,  or  the  member  thereof  who  shall  act  in 
said  review,  shall  detei-mine  that  the  assessments  so  reviewed  are  not 
assessed  according  to  law,  he  or  they  shall,  in  a  column  provided  for 
that  purpose,  place  opposite  said  property  the  true  and  lawful  assess- 
ment of  the  same.  As  to  the  property  not  on  the  tax  list,  the  said 
board  or  members  thereof  acting  in  said  review  shall  place  the  same 
upon  said  tax  list  by  proper  description,  and  shall  place  thereafter 
in  the  proper  column  the  true  cash  vahie  of  the  same.  In  case  of 
review  imder  this  section,  the  said  board  or  the  member  thereof  acting 
in  said  review  shall  certify  under  his  hand  officially  and  spread  upon 
said  list  a  certificate  of  the  day  and  date  at  which  said  tax  list  was 
reviewed  by  him,  and  the  changes  made  by  him  therein.  For  appear- 
ing with  said  list  as  required  herein,  the  tax  officer  shall  receive  the 
same  pay  per  diem  as  is  received  by  him  in  the  preparation  of  the  tax 
list,  to  be  presented  t»  and  paid  by  the  proper  officers  of  the  county  or 
municipality  of  which  he  is  the  assessing  officer,  in  the  manner  as  his 
other  compensation  is  paid.  The  action  of  said  board  or  member 
taken  as  provided  in  this  subchapter  shall  be  final. 
1005.  e.  590,  s.  8. 

n25a.  General  review  of  tax  list;  how  and  when  ordered.  In 

case  it  shall  appear  or  be  made  to  appear  to  said  board  that  any  tax 
list  in  the  state  is  so  grossly  irregular  and  unlawfully  assessed  that 
adequate  compliance  with  the  law  can  not  be  secured  except  by  a 
general  review  of  said  tax  list,  said  board  may  make  and  issue  an 
order  that  said  tax  list  shall  be  subject  to  general  review,  and  the  time 
and  place  shall  be  stated  in  said  order  at  which  said  list  shall  be 
reviewed,  and  under  said  order  the  assessor  whose  assessment  or  fail- 
ure to  assess  is  complained  against  shall  be  required  to  appear  with 
his  tax  list  at  the  time  and  place  thus  determined,  said  time  to  be  not 
less  than  fourteen  days  from  the  issuance  of  the  order,  and  the  place 
to  be  at  the  office  of  the  board  of  county  eonuuissioners  at  the  county- 
seat,  or  such  other  place  in  said  county  in  which  said  list  was  made, 
as  said  board  shall  deem  most  convenient  for  the  hearing  herein  pro- 
vided for.  A  notice  of  the  time  and  place  that  said  assessor  is  re- 
quired to  appear  with  said  list,  together  with  a  statement  that  said 
list  will  be  subjected  to  general  review,  and  that  all  persons  interested 
therein  may  be  heard  at  said  time,  shall  be  published  in  a  newspaper 
published  at  the  county-seat  of  said  county,  if  there  be  one ;  if  not,  in 
some  newspaper  printed  in  said  county,  if  there  be  any,  at  least  seven 
days  before  the  time  at  which  said  assessor  is  required  to  appear.     A 


1123a       COEPORATION  COMMIS.— A'.  Tax  Coinrs.       Cli.  20 

copy  of  the  order  made  as  aforesaid  shall  be  served  ii]3on  the  tax  officer 
ill  whose  possession  said  list  shall  be,  at  least  three  days  before  he  is 
required  to  appear  with  said  list.  The  said  board  or  any  member 
thereof  shall  appear  at  the  time  and  place  mentioned  in  said  order, 
and  the  tax  officer  upon  whom  said  notice  shall  have  been  served  shall 
appear  also  with  said  tax  list.  The  said  board  or  any  member  thereof, 
as  the  case  may  be,  together  with  the  chairman  of  the  board  of  county 
commissioners,  shall  then  and  there  review  said  tax  list  and  the  assess- 
ment of  property  therein,  and  he  or  they  shall  have  power  to  determine 
in  accordance  with  law  the  amount  at  which  said  assessment  shall  be 
placed,  and  to  change  the  same  so  that  said  assessments  may  comply 
M'ith  the  law.  Also  to  place  upon  said  list  property  omitted  therefrom 
in  the  same  manner  as  provided  in  the  last  preceding  section.  The 
determination  of  said  board  or  members  thereof,  acting  in  said  review, 
shall  be  placed  in  a  column  provided  for  that  purpose,  and  they  or  he 
shall  proceed  in  all  respects  as  provided  in  the  last  preceding  section, 
and  the  tax  officer  shall  receive  the  same  compensation  as  provided  in 
said  section. 

1905,  c.  590.  s.  9. 

1 126.  Property  unlisted,  how  listed  by.  If  it  shall  appear  to  said 

board  at  any  time  that  any  property  liable  to  taxation  has  not  been 
assessed  for  any  previous  year  as  hereinbefore  provided,  the  said 
board  shall  report  the  same  to  the  proper  assessing  officer,  and  the 
same  shall  be  listed  for  taxation  upon  the  next  tax  list  that  shall  be 
made,  and  shall  be  valued  as  all  other  property.  The  said  board  shall 
further  certify  to  the  board  of  county  commissioners  of  the  several 
counties  at  the  October  session  thereof  next  after  said  property  shall 
be  then  listed  for  taxation,  and  said  board  of  county  commissioners 
shall  ascertain  the  rate  of  taxation  for  said  several  years,  and  shall 
order  the  taxes  for  said  several  years  to  be  entered  against  said  prop- 
erty upon  the  valuation  for  the  then  current  year,  and  the  same  shall 
be  so  entered  in  a  column  provided  for  that  purpose,  and  it  shall  con- 
stitute a  charge  against  the  person  or  property  and  be  collected  as 
other  taxes:  Provided,  however,  that  this  provision  shall  not  be 
deemed  to  relate  back  prior  to  the  first  day  of  March,  one  thousand 
nine  hundi-ed  and  five:  Provided  further,  that  in  case  of  change  of 
owner.ship  of  the  property  omitted,  said  taxes  shall  not  be  entered 
against  said  property  prior  to  the  last  change  of  ownershi]i. 
1905,  c.  590,  s.  10. 

1127.  Report  to  the  governor,  when;  how  distributed.  The  board 

of  state  tax  commissioners  shall,  on  or  before  the  first  day  of  Xovem- 
ber  of  each  year,  make  an  annual  report  to  the  governor  of  the  state, 
setting  forth  the  workings  of  said  commission  during  the  preceding 


lli'T        COEPOEATION  C0MMI8.— A'.   Tax   Comrs.        Ch.   20 

year,  and  containing  the  findings  and  recommendations  of  said  com- 
mission in  relation  to  all  matters  of  taxation.  The  state  auditor  shall 
1:1  use  two  thousand  copies  of  said  report  to  be  printed  on  or  before  the 
first  day  of  December  succeeding  the  making  of  said  report.  Five 
hundred  copies  of  said  report  shall  be  placed  at  the  disposal  of  the 
state  librarian  for  distribution  and  exchange,  and  a  copy  of  said 
report  shall  be  forwarded  by  said  tax  commission  to  each  member  of 
the  general  assembly  as  soon  as  printed. 
1905,  c.  590,  s.  7. 


CHAPTEK  21. 
CORPORATIONS. 


Sections. 

I. 

General  powers, 

1128—1134 

II. 

Legislative  control, 

1135—1136 

III. 

Formation, 

1137—1144 

IV. 

By-laws, 

1145—1146 

V. 

Officers, 

1147—1158 

VI. 

Capital  stock. 

11.59-1173 

VII. 

Amendm'ts,  surrender,  etc.,  and  extension,     1174 — 1178 

VIII. 

Corporate  meetings. 

1179—1190 

IX. 

Dividends, 

1191—1192 

X. 

Foreign  corporations. 

1193—1194 

XI. 

Dissolution, 

1195—1211 

XII. 

Execution, 

1212—1218 

XIII. 

Receivers, 

1219—1232 

XIV. 

Taxes  and  fees. 

1233—1237 

XV. 

Reorganization, 

1238—1241 

XVI. 

Miscellaneous  provisions. 

1242—1248 

I.     General  Powees. 

1 1 28.    Corporate  powers.    Every  corporation  shall  have  power — 

1.  To  have  succession,  by  its  corporate  name,  for  the  period  lim- 
ited in  its  charter,  or  certificate  of  incorporation,  and,  when  no  period 
is  limited,  for  a  period  of  sixty  years. 

2.  To  sue  and  be  sued  in  any  court. 

3.  To  make  and  use  a  common  seal,  and  alter  the  same  at  pleasure, 
■i.   To  hold,  purchase  and  convey  real  and  personal  estate  in  or 

out  of  the  state,  and  to  mortgage  the  same  and  its  franchises ;  the 
power  to  hold  real  and  personal  estate  shall  include  the  power  to 
take  the  same  by  devise  or  bequest. 

5.  To  elect  and  appoint  in  such  manner  as  it  shall  determine  to 
be  proper,  all  necessary  officers  and  agents,  and  fix  their  compensation 
and  define  their  duties  and  obligations. 


1128  COEPOEATIONS— 7.   General  Powers.  Ch.   21 

6.  To  conduct  business  in  this  state,  other  states,  the  District 
of  Columbia,  the  territories,  dependencies  and  the  colonies  of  the 
United  States,  and  in  foreign  countries,  and  have  one  or  more 
offices  in  or  out  of  this  state. 

7.  To  make  bv-laws  and  regulations,  consistent  with  the  laws 
of  the  state,  for  its  own  government,  and  for  the  due  and  orderly 
conduct  of  its  affairs  and  the  management  of  its  property. 

8.  To  wind  up  and  dissolve  itself,  or  be  wound  up  and  dissolved 
in  the  manner  hereafter  mentioned. 

Code,  ss.  663,  666,  690,  691,  692,  693;   1893,  c.  159;   1901,  c.  2,  s.  1. 

1 129.  Implied  powers;  how  far  this  chapter  affects  all  corpora- 
tions. In  addition  to  the  powers  enumerated  in  the  first  section  of 
this  chapter,  and  the  powers  specified  in  its  charter,  or  in  the  act 
or  certificate  under  which  it  was  incorporated,  every  corporation, 
its  officers,  directors  and  stockholders,  shall  possess  and  exercise  all 
the  powers  and  privileges  contained  in  this  chapter  so  far  as  the 
same  are  necessary  or  convenient  to  the  attainment  of  the  objects 
set  forth  in  siich  charter  or  certificate  of  incorporation,  and  shall  be 
governed  by  the  provisions,  and  be  subject  to  the  restrictions  and 
liabilities  in  this  chapter  contained,  so  far  as  the  same  are  applicable 
to,  and  not  inconsistent  with,  such  charter,  or  the  act  under  which 
such  corporation  was  formed ;  and  no  corporation  shall  possess  or 
exercise  any  other  corporate  powers,  except  such  incidental  powers 
as  shall  be  necessary  to  the  exercise  of  the  powers  so  given:  Provided, 
nothing  in  this  chapter  shall  authorize  or  empower  corporations 
organized  under  this  chapter  to  lease,  operate,  maintain,  manage  or 
control  any  railroad  except  street  railways. 

Code,  s.  701;  1897,  c.  204;  1901,  c.  2,  s.  4;  1901,  c.  6. 

1130.  How  land  conveyed;  certain  conveyances  void  as  to 

torts.  Any  corporation  may  convey  lands,  and  all  otlier  property 
which  is  transferable  by  deed,  by  deed  of  bargain  and  sale,  or  other 
proper  deed,  sealed  with  the  common  seal  and  signed  in  its  name 
by  the  president,  a  vice-president,  presiding  member  or  trustee,  and 
two  other  members  of  the  corporation  and  attested  by  a  witness  or 
"witnesses,  or  by  deed  of  bargain  and  sale,  or  other  ]n-oper  deed,  sealed 
with  the  common  seal  and  signed  in  its  name  by  the  president,  a  vice- 
president,  presiding  niember  or  trustee,  and  attested  by  the  secretary 
or  assistant  secretary  of  the  company.  But  any  conveyance  of  its 
property,  whether  absolutely  or  upon  condition,  in  trust,  or  by  way  of 
mortgage,  executed  by  any  coi^ioration,  shall  be  void  and  of  no  eflfect 
as  to  torts  committed  by  such  corporation  prior  to,  or  at  the  time  of  the 
execution  of  said  deed :  Provided,  persons  injured,  or  their  repre- 
sentatives,  shall   commence  proceedings  or  actions   to  enforce  their 


1130  COEPORATIONS— 7.   Gerieral  Powers.  Ch.  21 

claims  against  said  corporation  Avithin  sixty  dajf  after  the  registra- 
tion of  said  deed,  as  required  by  law. 

Code,  s.  685;  1891,  c.  118;  1803,  c.  95,  s.  2;  1899,  c.  235,  s.  17;  1901,  c.  2,  s.  2; 
1903,  c.  660,  s.  1;  1905,  c.  114. 

1131.  Mortgaged  corporate  property  subject  to  execution  for 

labor  and  torts.  ^Mortgages  of  corporation^^i  nivm  their  property  or 
earnings,  whether  in  bonds  or  otherwise,  shall  not  have  power  to 
exempt  the  property  or  earnings  of  snch  corporations  from  execu- 
tion for  the  satisfaction  of  any  judgment  obtained  in  courts  of  the 
state  against  such  corporations  for  labor  performed,  nor  torts  com- 
mitted by  such  corporation  whereby  any  person  is  killed  or  any 
person  or  property  injured,  any  clause  or  claiises  in  such  mortgage  to 
the  contrary  notwithstanding. 

Code,  s.  1255;   1897,  c.  334;   1901,  c.  2,  s.  3. 

1132.  Gas  companies  may  supply  electricity.  Any  gas  com- 
pany, in  addition  to  the  230wers  contained  in  the  charter,  shall  have 
full  power  to  use,  employ  and  supply  electricity  for  lighting  public 
and  private  buildings  and  all  other  places ;  and  may  charge  and 
collect  such  reasonable  rates  and  fees  for  the  vise  of  such  lights^ 
fixtures  and  appliances  as  may  be  established  by  said  company,  in 
accordance  with  law. 

1889    (Pr.),  c.  35. 

1133.  Special  powers  of  gas  and  electric  companies.  Gas  and 

electric  light  and  power  companies  shall  have  power  to  lay,  extend, 
construct,  build,  erect,  maintain,  repair  and  remove  all  necessary  or 
convenient  towers,  poles,  cable  wires,  conductor.^,  lamps,  fixtures, 
appliances,  appurtenances,  in,  upon,  through  and  over  any  and  all 
roads,  streets,  avenues,  lanes,  alleys  and  bridges  within  and  near 
any  city,  town  or  village  where  said  company  may  be  located ;  and 
all  such  roads,  streets,  lanes,  alleys  and  bridges  shall  be  left  in  as 
good  condition  as  they  were  in  at  the  time  of  using  them  as  afore- 
said: Provided,  that  the  rights  and  privileges  conferred  in  this  sec- 
tion shall  not  be  exercised  unless  the  authorities  of  such  city,  town 
or  village  first  give  their  consent,  and  afterwards  the  said  authori- 
ties shall  have  full  power  to  control  the  location  of  all  towers,  poles, 
wires,  conductors  and  all  other  fixtures,  appliances  and  appvirte- 
nances  belonging  to  or  operated  by  any  of  said  companies. 
1889    (Pr.),  c.  35,  s.  2. 

1134.  Corporations  created  hereunder  can  not  do  banking 

business.  No  corporation  created  under  the  pi-ovisions  of  this  chap- 
ter, shall,  by  any  implication  or  construction,  be  deemed  to  possess 
the  power  of  carrying  on  the  business  of  di.scounting  bills,  notes  or 


1134  CORPORATIOXS— /.   Genera/  Powers.  Ch.   21 

other  evidences  of  debt,  or  of  receiving  deposits  of  money,  or  of 
buying  gold  or  silver  bullion,  or  foreign  coins,  or  of  buying  and 
selling  bills  of  exchange,  or  of  issuing  bills,  notes  or  other  evidences 
of  debt,  upon  loan,  or  for  circulation  as  money:  Provided,  that  in  the 
transaction,  of  its  business  it  may  make,  and  take  and  indorse,  when 
necessary,  all  such  bonds,  notes  and  bills  of  exchange  as  the  particu- 
lar business  may  require. 
Code,  s.  684;   1901,  c.  2,  s.  5. 

II.     Lec;isi,ative  Control. 

1135.  Legislative  power  over  corporate  charters.  The  charter 

of   every    corporation,    or    any    supplement    thereto,    or    amendment 
thereof,  shall  be  subject  to  alteration,  modification,   amendment  or 
repeal,  in  the  discretion  of  the  legislature,  and  the  legislature  may,  at 
pleasure,  dissolve  any  corporation. 
Const.,  Art.  VIII,  s.  1 ;  1901,  c.  2,  s.  6. 

1136.  This  chapter  may  be  amended;  corporations  bound 
thereby;  appropriate  portions  a  part  of  all  charters.  This  chap- 
ter may  be  amended  or  repealed  at  the  pleasure  of  the  legislature, 
and  every  corporation  shall  be  bound  by  such  amendment;  but  such 
amendment  or  repeal  shall  not  take  away  or  impair  any  remedy 
against  any  such  corporation,  or  its  oflicers,  for  any  liability  which 
shall  have  been  previously  incurred.  This  chapter  and  all  amend- 
ments thereof  shall  be  a  part  of  the  charter  of  every  corporation 
heretofore  formed,  or  hereafter  formed  hereunder,  except  so  far  as 
the  same  are  inapplicable  and  inappropriate  to  the  objects  of  such 
corporation. 

Const.,  Art.  VIII,  s.  1;   1901,  c.  2,  s.  7. 

III.       FoEM.iTIOX. 

1 137.  How  created.  Any  number  of  persons,  not  less  than  three, 
who  may  be  desirous  of  engaging  in  any  business,  or  of  forming  any 
company,  society  or  association  whatever,  not  unlawful,  except  rail- 
roads, other  than  street  railways,  or  banking  or  insurance,  or  building 
and  loan  associations,  shall  be  incorporated  in  the  manner  following, 
and  in  no  other  way  (except  in  those  cases  where,  in  the  jiulgment 
of  the  legislature,  the  object  of  the  corporation  can  not  be  attained 
under  the  general  law,  and  in  all  such  cases  the  act  creating  the  cor- 
poration shall  contain  a  preamble,  in  which  shall  be  set  forth  specifi- 
cally and  definitely  the  particular  object  of  the  corjioration.  or  ]U'o- 
vision  in  the  ]iroposcd  charter,  which  can  not  W'  attained  under  tlie 


1137  COEPOKATIOXS— ///.  Formation.  Ch.  21 

general  law)  ;  that  is  to  say,  such  persons  shall,  by  a  certificate  of 
incorporation,  under  their  hands,  and  seals,  set  forth — 

1.  The  name  of  the  corporation ;  no  name  shall  be  assumed  already 
in  use  by  another  existing  corporation  of  this  state,  or  so  nearly 
similar  thereto  as  to  lead  to  imcertainty  or  confusion;  and  shall  end 
with  either  the  word  ''company,'"  or  the  word  ''incorporated." 

2.  The  location  of  its  principal  office  in  the  state. 

3.  The  object  or  objects  for  which  the  corporation  is  formed. 

4.  The  amount  of  the  total  authorized  capital  stock  of  the  corpor- 
ation, the  number  of  shares  into  which  the  same  is  di%'ided,  and 
the  par  valine  of  each  share,  the  amoimt  of  capital  stock  with  which 
it  will  commence  business,  and,  if  there  be  more  than  one  class  of 
stock,  a  description  of  the  different  classes,  with  the  terms  on  which 
the  respective  classes  of  stock  are  created :  Provided,  however,  that 
the  provisions  of  this  paragraph  shall  not  apply  to  religious,  charita- 
ble or  literary  corporations,  imless  it  is  desired  to  have  a  capital 
stock;  in  case  any  religioiis,  charitable  or  literary  corporation  desires 
to  have  no  capital  stock,  it  shall  be  so  stated,  and  the  conditions  of 
membership  shall  be  also  stated. 

5.  The  names  and  postoffice  addresses  of  the  subscribers  for  stock, 
and  the  number  of  shares  subscribed  by  each;  the  aggregate  of 
such  subscriptions  shall  be  the  amount  of  capital  stock  with  which 
the  company  will  commence  business ;  and  if  there  be  no  capital 
stock,  the  names  and  postoffice  addresses  of  the  incorporators. 

6.  The  period,  if  any,  limited  for  the  duration  of  the  company. 

7.  The  certificate  of  incorporation  may  also  contain  any  provision 
which  the  incorporators  may  choose  to  insert  for  the  regulation  of 
the  business,  and  for  the  conduct  of  the  affairs  of  the  corporation, 
and  any  provision  creating,  defining,  limiting  and  regulating  the 
powers  of  the  corporation,  the  directors  and  the  stockholders,  or  any 
class  or  classes  of  stockholders :  Provided,  such  provision  be  not 
inconsistent  with  the  laws  of  this  state. 

Code,  s.  677;  1901,  e.  2,  s.  8;  1903,  c.  453;  1901,  cc.  6,  41,  47;  1885,  ec.  19,  190; 
1889,  c.  170;  1891,  c.  257;  1893,  cc.  244,  318;  1897,  c.  204;  1899,  c.  618. 
Xote.     For  improperly  doing  business  under  a  company  name,  see  s.  2118. 

1138.  Street  railways  may  be  incorporated  hereunder.  Cor- 
porations may  be  organized  under  the  provisions  of  this  chapter  for 
the  purpose  of  building,  maintaining  or  operating  street  railways. 
The  term  street  railways,  wherever  used  in  this  chapter,  shall  be 
held  to  include  railways  operated  either  by  steam  or  electricity,  or 
by  whatever  motive  power,  used  and  operated  as  means  of  communi- 
cation between  different  points  in  the  same  municipality,  or  between 
points  in  municipalities  lying  adjacent  or  near  to  each  other,  or 
between  the  territory  lying  contiguous  to  the  municipality  in  wliich 
is  the  home  office  of  said  company,   and   such  railways  may  carry 

317 


1138  CORPORATIOXS— ///.  Formation.  Ch.  21 

and  deliver  freights :  Provided,  that  no  such  railway  shall  operali' 
a  line  extending  in  any  direction  more  than  fifty  niiles  from  the 
mnniciijality  in  which  is  located  its  home  office.  No  such  raihviiy 
shall  be  operated  in  any  city  or  tovm  without  the  consent  of  the 
municipal   authorities  thereof. 

1901,  cc.  6,  41;   1003,  c.  350. 

1139.  Certificate  of  incorporation,  tiow  signed,  proved,  filed 

and  recorded.  The  certificate  of  incorporation  shall  be  signed  bv 
the  original  incorporators,  or  a  majority  of  them,  and  sliall  be 
proved,  or  acknowledged,  before  an  officer  duly  authorized  under 
the  laws  of  this  state  to  take  the  proof  or  acknowledgment  nf  deed-. 
Such  certificate  of  incorporation,  when  so  proved,  shall  be  filed  in 
the  office  of  the  secretary  of  state,  and  there  remain  of  record,  and 
he  shall,  if  the  same  shall  be  in  accordance  with  law,  thereupon 
cause  the  same  to  be  recorded  in  his  office  in  a  book  to  be  kept  for 
that  purpose,  and  kno^vlJ  as  the  "Corporation  Book,"  and  he  shall, 
upon  the  payment  of  the  organization  ta.x  and  fees,  certify  under 
his  official  seal,  a  copy  of  the  said  certificate  of  incorjioration  and 
probates,  which  said  certified  copy  shall  be  forthwith  recorded  in 
the  office  of  the  clerk  of  the  superior  court  of  the  county  where  tlie 
principal  office  of  said  corporation  in  this  state  shall,  or  is  to  be 
established,  in  a  book  to  be  known  as  the  "Record  of  Incorpora- 
tions"' ;  and  said  certificate  of  incorporation,  or  a  copy  thereof,  duly 
certified  by  the  secretary  of  state,  or  by  the  clerk  of  the  superior 
court  of  the  county  in  which  the  same  is  recorded,  shall  be  evidence 
in  all  courts  and  places,  and  shall,  in  all  judicial  pi'oceedings,  be 
deemed  prima  facie  evidence  of  the  complete  organization  and  incor- 
poration of  the  company  purporting  thereby  to  have  been  established. 
Code,  ss.  678,  679,  682;   1901,  e.  2,  s.  9;   1903,  c.  343. 

1140.  When  incorporators  become  a  corporation.  The  persons 

so  associated,  their  successors  and  assigns,  shall,  from  the  date  of 
such  filing  in  said  office  of  the  secretary  of  state,  be  and  constitute 
a  body  corporate  by  the  name  set  forth  in  such  certificate  of  incorpor- 
ation, subject  to  amendment  and  dissolution  in  the  manner  provided 
by  law. 

1901,  c.  2,  s.  10. 

1141.  Incorporators  to  direct  affairs  until  directors  are  elected. 

Until  the  directors  are  elected,  the  signers  of  the  certificate  of  incor- 
poration shall  have  the  direction  of  the  afl:'airs  and  of  the  organiza- 
tion of  the  corporation,  and  may  take  such  steps  as  are  proper  to 
obtain  the  necessary  subscription  to  stock  and  to  perfect  the  organiza- 
tion of  the  corj^oratiou. 
1901,  c.  2,  s.  11. 


1142  CORPORxlTIOXS— ///.  Formation.  Ch.  21 

1 142.  First  meeting,  how  called.  The  first  meeting  of  every  cor- 
poration shall  be  called  by  a  notice,  signed  by  a  majority  of  the 
incorporators,  designating  the  time,  place,  and  purpose  of  the  meet- 
ing, which  notice  shall  be  published  at  least  two  weeks  before  the 
meeting,  in  some  newsjjaper  of  the  county  where  the  corporation  is 
established ;  or  said  first  meeting  may  be  called  without  publication, 
if  two  days'  notice  be  i^ersonally  served  on  all  the  incorporators,  or  if 
all  the  incorporators  shall  in  writing  waive  notice  and  fix  a  time  and 
place  of  meeting,  no  notice  or  publication  shall  be  required. 

Code,   s.  605;    1901,   c.  2,  s.   18. 

1143.  Death  of  incorporators;  vacancy  filled.  When  one  or  more 

of  the  incorporators  of  any  corporation,  created  by  or  under  any  gen- 
eral or  special  act,  shall  have  died  before  the  corporation  shall  have 
been  organized  pursuant  to  law,  the  survivors  or  survivor  may,  in 
writing,  designate  other  persons  who  may  take  the  place  and  act 
instead  of  those  deceased,  in  the  organization ;  and  the  organization 
so  effected  by  their  aid  shall  be  as  effectual  in  law  as  if  it  had  been 
effected  by  all  the  original  incorporators. 

1901,  c.  2,  s.  36. 

1144.  Errors  in  certificates  of  incorporation,  how  corrected. 

Whenever  in  the  certificate  of  incorporation  under  any  general  law 
there  shall  be  any  error  or  omission  in  the  recital  of  the  act  under 
which  said  corjDoration  is  created,  or  in  the  omission  of  any  other 
matter  which  is  required  to  be  stated  in  the  certificate,  it  shall  be 
lawful  for  said  corporation  to  correct  such  error  in  the  manner  fol- 
lowing: The  board  of  directors  of  such  corporation  shall  pass  a  reso- 
lution declaring  that  such  error  exists,  and  that  said  corporation 
desires  to  correct  the  same,  and  shall  call  a  meeting  of  the  stockholders 
of  said  corporation  to  take  action  upon  such  resolution.  The  meeting 
of  said  stockholders  shall  be  held  upon  such  notice  as  the  by-laws 
provide,  and  in  the  absence  of  such  provision,  then  upon  ten  days' 
notice,  given  personally,  or  by  mail.  If  two-thirds  in  interest  of  all 
the  stockholders  shall  vote  in  favor  of  the  correction  of  such  error  or 
omission,  a  certificate  of  such  action  shall  be  made  and  signed  by  the 
president  and  secretary  imder  the  corporate  seal ;  which  said  certifi- 
cate shall  be  acknowledged  or  proved  as  in  the  case  of  deeds  of  real 
estate,  and  such  certificate,  together  with  the  written  assent,  in  person 
or  by  proxy,  of  two-thirds  in  interest  of  all  the  stockholders  of  said 
corporation,  shall  be  filed  in  the  office  of  the  secretary  of  state,  and 
upon  the  filing  thereof  the  certificate  of  incorporation  shall  be  deemed 
to  be  corrected  and  amended  accordingly,  and  the  filing  of  said  certifi- 
cate in  conformity  with  this  chapter  shall  have  the  same  force  and 


1144  COKPORATIOXS— ///.   Format  ion.  Ch.   21 

effect   as    if   said    certificate    of    incorporation    had    been    originiilly 
drafted  in  conformity  with  the  amendment  so  made. 
1901,  e.  2,  s.  109. 

IV.  By-laws. 

1145.  Power  to  make  and  alter.  The  power  to  make  and  alter 
bydaws  shall  be  in  the  stockliolders,  biit  any  corporation  may,  in 
the  certificate  of  incorporation,  confer  that  power  npon  tlie  directors. 
Bydaws  made  by  the  directors  Tinder  power  so  conferred  may  bo 
altered  or  repealed  by  the  stockholders. 

1901,  c.  2,  s.  13. 

1146.  What  they  may  determine  and  contain.  All  corporations 

may,  by  their  liydaws,  where  no  other  provision  is  specially  made, 
determine  the  manner  of  calling  and  conducting  all  meetings ;  the 
number  of  members  that  shall  constitute  a  quorum  (provided,  in 
no  case  shall  more  than  a  majority  of  shares  or  amount  of  interest 
be  required  to  be  represented  at  any  meeting  in  order  to  constitute  a 
quonim ;  if  the  quonmi  shall  not  be  so  determined  by  the  corporation, 
a  majority  in  interest  of  the  stockholders,  represented  either  in  per- 
son, or  by  proxy,  shall  constitute  a  quorum)  the  ninnber  of  shares 
that  shall  entitle  the  members  to  one  or  more  votes;  the  mode  of 
voting  by  proxy;  the  mode  of  selling  shares  for  the  nonpayment  of 
assessments ;  the  tenure  of  office  of  the  several  officers,  and  the  man- 
ner in  which  vacancies  in  any  of  the  offices  shall  be  filled,  till  a  regular 
election,  and  they  may  annex  suitable  penalties  to  such  bydaws,  not 
exceeding  in  any  case  the  sum  of  twenty  dollars,  for  any  one  offense : 
Provided,  that  no  such  by-law  shall  be  made  by  any  corporation 
repugnant  to  any  provision  of  its  certificate  of  incorporation ;  and  the 
provisions  of  this  chapter  shall  govern  in  all  cases  where  tlie  by-laws 
are  silent. 

Code,  s.  064;    1901,  e.  2,  s.  12. 

V.  Offickrs. 

1147.  Directors,  their  selection,  powers,  duties,  terms  of  office, 

classes,  etc.  The  business  of  every  corporation  shall  ho  managed 
by  its  directors;  they  shall  not  be  less  than  three  in  number,  and, 
except  as  hereinafter  provided,  they  shall  be  chosen  annually  by  the 
stockholders  at  the  time  and  place  provided  in  the  by-laws,  and  sliall 
hold  office  for  one  year  and  until  others  are  chosen  and  qualified  in 
their  stead ;  but  by  so  providing  in  its  certificate  of  incorporation, 
any  corporation  organized  under  this  chapter  may  classify  its  direc- 
tors in  respect  to  the  time  for  which  they  .shall  severally  hold  office,  the 
several  classes  to  be  elected  for  different  terms:  Provided,  that  no 


1147  CORPORATIONS— F.   Officers.  Ch.   21 

class  shall  be  elected  for  a  shorter  i:)eriod  than  one  year,  or  for  a 
longer  period  than  five  years,  and  that  the  term  of  office  of  at  least 
mu'  class  shall  expire  in  each  year.  Any  corporation  which  shall  have 
iimre  than  one  kind  of  stock,  may,  by  so  providing  in  its  certificate 
of  incorporation,  confer  the  right  to  choose  the  directors  of  any  class 
ii|iiin  the  stockholders  of  any  class,  or  classes,  to  the  exclusion  of  the 
.'I  hers.  One  director  of  every  corpoi'ation  of  this  state  shall  be  an 
aiinal  resident  of  this  state,  and  it  shall  not  be  necessary  for  more 
llian  one  director  to  be  a  resident  of  this  state,  notwithstanding  the 
provisions  of  any  special  charter  or  other  act. 

1901,  e.  2,  s.  14. 

1148.  Directors  must  be  stockholders.  No  person  shall  be  elected 
as  director  of  any  corporation  issuing  stock  unless  he  shall  be,  at 
the  time  of  his  election,  a  bona  fide  holder  of  some  of  the  stock 
thereof;  and  any  director  ceasing  to  be  a  bona  fide  holder  of  some 
of  the  stock  thereof,  shall  cease  to  be  a  director.  Any  corporation 
may,  by  its  certificate  of  incorporation  or  by-laws,  detennine  how 
m.any  shares  a  person  shall  hold  to  qualify  him  to  be  a  director. 

1901,  e.  2,  s.  44. 

1149.  Officers,  their  selection,  qualifications,  duties,  terms, 

etc.  Every  corporation  organized  under  this  chapter  shall  have  a 
president,  secretary  and  treasurer,  who  shall  be  chosen  either  by  the 
directors  or  stockholders,  as  the  by-laws  may  direct,  and  shall  hold 
their  offices  until  others  are  chosen  and  qualified  in  their  stead ;  the 
president  shall  be  chosen  from  among  the  directors ;  the  secretary 
shall  record  all  the  votes  of  the  corporation  and  directors  in  a  book 
to  be  kept  for  that  purpose,  and  perform  such  other  duties  as  shall 
be  assigned  to  him.  The  treasurer  may  be  required  to  give  bond  for 
the  faithful  discharge  of  his  duty  in  such  sum,  and  with  such  surety, 
or  sureties,  as  shall  be  required  by  the  by-laws.  Any  two  of  the 
offices  may  be  held  by  the  same  person,  if  the  body  electing  so  deter- 
mine. 

1901,  c.  2,  s.  15. 

1150.  other  officers,  agents  and  factors.  The  corporation  may 

have  such  other  officers,  agents  and  factors,  who  shall  be  chosen  in 
such  manner  and  hold  their  office  for  sucli  terms,   and  upon  such 
conditions  as  may  be  prescribed  by  the  by-laws  or  determined  by 
the  board  of  directors. 
1901,  c.  2,  s.  16. 

1151.  Vacancies,  how  filled.    Any  vacancy  occurring  among  the 
directors,   or   in   the   office  of   president,   secretary  or  treasurer,   by 
death,  resignation,  removal  or  otherwise,  shall  be  filled  in  the  man- 
Rev.  Vol.  1—17  321 


1151  CORPOEATIONS— F.  Oi^cers.  Ch.  21 

ner  provided  for  in  the  by-laws;  in  the  absence  of  such  provision 
such  vacancies  shall  be  filled  by  the  board  of  directors. 
1901,  e.  2,  s.  17. 

1152.  Annual  statement;  forfeiture  for  failure  to  make;  duty  of 
secretary  of  state  and  attorney  general.  Every  corporation,  a\ithor- 

ized  to  transact  business  in  this  state,  shall  file  in  the  office  of  the  sec- 
retary of  state,  annually,  on  or  before  September  first,  a  statement 
authenticated  by  the  sigTiatures  of  the  president  and  secretary  contain- 
ing the  total  amount  of  capital  stock  authorized,  the  amount  actually 
issued,  whether  for  cash  or  for  purchase  of  property,  designating 
what  property,  the  names  of  all  of  the  directors,  and  officers,  with 
the  date  of  the  election  or  appointment,  term  of  office,  residence 
and  postoffice  address  of  each,  the  character  of  its  business  and 
location,  giving  the  street  and  number,  if  any,  of  its  principal 
office  in  the  state,  and  the  name  of  the  agent  in  charge  of  said  office, 
upon  whom  process  against  the  corporation  may  be  served ;  but 
this  shall  not  prevent  service  of  -process  on  other  agents  author- 
ized by  law ;  and  for  this  purpose  the  secretary  of  state  shall  furnish 
blanks  in  proper  form  and  safely  keep  in  his  office  all  such  state- 
ments, and  issue  to  the  corporations  filing  the  same  his  certificate 
thereof,  and  also  prepare  an  alphabetical  index  thereof,  which  state- 
ments and  index  shall  be  submitted  to  the  inspection  of  persons 
interested,  at  all  proper  hours ;  and  every  corporation  failing  to  com- 
ply with  the  provisions  of  this  section  shall  forfeit  to  the  state  one 
hundred  dollars,  to  be  recovered,  with  costs,  in  an  action  to  be 
prosecuted  by  the  attorney  general,  who  may  prosecute  such  actions 
whenever  it  shall  appear  that  this  section  has  been  violated.  This 
section  shall  not  apply  to  any  corporation  which  is  required  to  file 
a  similar  statement  in  the  office  of  the  commissioner  of  insurance, 
or  the  corporation  commission. 
1901,  e.  2,  s.  48. 

1153.  Secretary  of  state  may  call  for  special  reports.   The 

secretary  of  state  .shall  have  power  to  call  for  special  re]iorts  from 
corporations,  of  the  same  character  as  their  regular  reports,  at  such 
times  as  he  may  deem  public  interest  requires:  Pmx'iiled,  no  fees 
shall  be  charged  for  filing  such  special  reports. 

1154.  Liability  for  making  false  certificates.   Lf  any  certificate 

made,  or  any  public  notice  given,  by  the  officers  of  any  corporation, 
in  pursuance  of  the  provisions  of  this  chapter,  shall  be  fal.se  in  any 
material  representation,  all  the  officers  who  shall  have  signed  the 
same,  knowing  it  to  be  false,  shall  be  jointly  and  severally  liable  for 
all  the  debts  of  the  corporation  contracted  while  they  were  stock- 


1154  CORPOEATIONS— 7.   Officers.  Ch.  21 

holders  or  officers  thereof,  as  a  penalty  enforcible  in  the  courts  of 
this  state  only. 
:        1901,  c.  2,  s.  56. 

1155.  Fraud;  liability  of  officers,  directors  and  stockholders 

for.  In  case  of  fraud  by  the  president,  directors,  managers  or  stock- 
holders, in  any  corporation,  the  court  shall  adjudge  personally  liable 
to  creditors  and  others  injured  thereby  such  of  the  directors  and 
■stockholders  as  may  have  been  concerned  in  the  fraud. 

Code,  s.  686;    1901,  c.  2,  s.   107. 

1156.  Who  may  sue  officers  and  directors  personally.  When 

the  officers,  directors  or  stockholders  of  any  corporation  shall  be 
liable  to  pay  the  debts  of  the  corporation,  or  any  part  thereof,  any 
person  to  whom  they  are  liable  may  have  an  action  against  any 
one  or  more  of  them.  And  any  such  officer,  director  or  stockholder 
shall  have  the  right  of  equitable  contribution  in  any  action  for  that 
purpose  against  any  other  officer,  director  or  stockholder  who  is  liable 
with  him  for  any  amount  which  he  may  have  been  compelled  to  pay  as 
provided  in  this  section. 
1901,  c.  2,  s.  90. 

1157.  Action  by  officer  for  money  advanced.  Any  officer,  direc- 
tor or  stockholder  who  shall  pay  any  debt  of  a  corporation  for  which 
he  is  made  liable  by  the  provisions  of  this  chapter,  may  recover  the 
amount  so  paid,  in  an  action  against  the  corporation  for  money  paid 
for  its  use,  in  which  action  only  the  property  of  the  corporation 
shall  be  liable  to  be  taken,  and  not  the  property  of  any  stockholder, 
except  as  provided  in  the  preceding  section. 

1901,  c.  2,  s.  91. 

1158.  Assets  of  corporation  first  exhausted.  'So  sale  or  other 

satisfaction  shall  be  had  of  the  property  of  any  director  or  stock- 
holder for  any  debt  of  the  corporation  of  which  he  is  such  director 
or  stockholder  till  judgment  be  obtained  therefor  against  such  cor- 
poration and  execution  thereon  returned  unsatisfied,  or  it  shall  be 
made  to  appear  to  the  court  that  the  corporation  has  no  property 
available  for  the  satisfaction  of  said  indebtedness. 
1901.  e.  2.  s.  92. 

VI.     Capital   Stock. 

1159.  Classes  of  stock;  issued  for  property  or  labor.   Every 

corporation  shall  have  power  to  create  two  or  more  kinds  of  stock 
of  such  classes,  with  such  designations,  preferences  and  voting 
powers  or  restriction  or  qualification  thereof  as  shall  be  prescribed 


1159  COEPOEATIONS— F/.   Capital  Stock.  Ch.  21 

by  tliose  holding  two-thirds  of  its  capital  stock  outstanding;  and  the 
power  to  increase  or  decrease  the  stock,  as  herein  elsewhere  provided, 
shall  apply  to  all  or  any  of  the  classes  of  stock;  and  such  preferred 
stock  may,  if  desired,  be  made  subject  to  redemption  at  not  less 
than  par,  at  a  fixed  time  and  price,  to  be  expressed  in  the  certifi- 
cate thereof;  and  the  holders  thereof  shall  be  entitled  to  receive, 
and  the  corporation  shall  be  bound  to  pay  thereon,  a  fixed  yearly 
dividend,  to  be  expressed  in  the  certificate,  payable  quarterly,  half 
yearly,  or  yearly,  before  any  dividend  shall  be  set  apart  or  paid 
on  the  common  stock,  and  such  dividends  may  be  made  cumulative ; 
and  in  case  of  insolvency,  its  debts  or  other  liabilities  shall  be  paid 
in  preference  to  the  preferred  stock.  No  corporation  shall  create 
preferred  stock,  except  by  authority  given  to  the  board  of  directors, 
iDy  a  vote  of  at  least  two-thirds  of  the  stock  voted  at  a  meeting  of 
the  common  stockholders,  duly  called  for  that  purpose.  The  terms 
"general  stock"  and  "common  stock"  are  synonymous.  When  any 
corporation  shall  issue  stock  for  labor  done  or  personal  property 
or  real  estate,  or  leases  thereof,  which  stock  may  be  so  issued  by  any 
corporation,  in  the  absence  of  fraud  in  the  transaction,  the  judgment 
of  the  directors  as  to  the  value  of  svich  labor,  property,  real  estate  or 
leases  shall  be  conclusive. 

1901,  c.  2,  s.  19;   1903,  c.  GOO,  ss.  2,  3. 

1160.  Capital  stock,  how  paid;  loans  to  stockliolders.  Nothing 

but  money  shall  be  considered  as  payment  of  any  part  of  the  capital 
stock  of  any  corporation  organized  under  this  chapter,  except  as 
herein  provided  in  case  of  the  purchase  of  property  or  labor  per- 
formed, and  no  loan  of  money  shall  be  made  to  a  stockholder  or  offi- 
cer thereof;  and  if  any  such  loan  be  made,  the  officers  who  make  it, 
or  assent  thereto,  shall  be  jointly  and  severally  liable,  to  the  extent 
of  such  loan,  and  interest,  for  all  the  debts  of  the  corporation  until 
the  repayment  of  the  sum  so  loaned. 
1901,  c.  2,  s.  53. 

1161.  stock  issued  full-paid  for  property  purchased;  state- 
ments to  contain  the  facts.  Any  corporation  formed  under  this 
chapter  may  purchase  mines,  manufactories  or  other  property  nec- 
essary for  its  business,  and  issue  stock  to  the  amount  of  the  value 
thereof  in  pajTnent  therefor,  and  the  stock  so  issued  shall  be  full- 
paid  stock,  and  not  liable  to  any  further  call,  neitlier  shall  the  holder 
thereof  be  liable  for  any  further  payment  under  any  of  the  pro- 
visions of  this  chapter;  and  in  the  ab.sence  of  actual  fraud  the  judg- 
ment of  the  directors  as  to  the  value  of  the  property  sliall  be  con- 
clusive ;  and  in  all  statements  and  reports  of  the  corporation  to  he 
publislied  or  filed,  this  stock  sliall  not  be  stated  or  reported  as  being 


1161  COEPOEATIONS— y/.  Capital  Stock.  Ch.  21 

issued  for  cash  paid  to  the  corporation,  but  shall  be  reported  in  this 
respect  according  to  the  facts. 

1901,  e.  2,  s.  54. 

Note.     See  s.  1159. 

1162.  Stockholders'  liability  for  stock  not  fully  paid;  fiducia- 
ries and  pledgors.  Wliere  the  capital  stock  of  a  corporation  shall 
not  have  been  paid  in,  and  the  assets  shall  be  insufficient  to  satisfy 
its  debts  and  obligations,  each  stockholder  shall  be  bound  to  pay  on 
each  share  held  by  him  the  sum  necessary  to  complete  the  amount 
of  such  share,  as  fixed  by  the  certificate  of  incoi-iDoration  or  charter, 
or  such  proportion  of  that  sum  as  shall  be  required  to  satisfy  such 
debts  and  obligations ;  but  no  person  holding  stock  in  any  corpora- 
tion in  this  state  as  executor,  administrator,  guardian,  or  trustee, 
and  no  person  holding  such  stock  as  collateral  security  shall  be  per- 
sonally subject  to  any  liability  as  a  stockholder  of  such  corporation; 
but  the  person  pledging  such  stock  shall  be  considered  as  holding 
the  same,  and  shall  be  liable  as  a  stockholder  accordingly,  and  the 
estate  and  funds  in  the  hands  of  such  executor,  administrator,  guard- 
ian, or  trustee,  shall  be  liable  in  like  manner,  and  to  the  same  extent, 
as  the  testator  or  intestate,  or  the  ward,  or  the  person  interested  in 
such  fund,  would  have  been,  had  he  been  living  and  competent  to 
act  and  hold  the  stock  in  his  own  name. 

1893,  0.  471;   1901,  e.  2,  s.  22. 

1163.  Liability  of  officers  failing  to  make  certificate.  If  any 

of  the  officers  shall  neglect  or  refuse  to  make  any  reports  required 
of  them  by  law  for  thirty  days  after  written  request  so  to  do  by 
a  creditor  or  stockholder  of  the  corporation,  they  shall  be  jointly 
and  severally'  liable  to  the  person  demanding  such  report,  for  the 
amount  of  his  debt,  if  he  be  a  creditor,  or  for  the  amount  of  his  loss, 
if  he  be  a  stockholder. 
1901,  c.  2,  a.  27. 

1164.  Decrease  of  capital  stock,  how  effected;  liability  of 

directors  and  stockholders.  The  decrease  of  capital  stock  may  be 
effected  by  retiring  or  reducing  any  class  of  the  stock,  or  by  draw- 
ing the  necessary  number  of  shares  by  lot  for  retirement,  or  by  the 
surrender  by  every  shareholder  of  bis  shares,  and  the  issue  to  him 
in  lieu  thereof  of  a  decreased  number  of  shares,  or  by  the  purchase 
at  not  above  par  of  certain  shares  for  retirement,  or  by  retiring 
shares  owned  by  the  corporation,  or  by  reducing  the  par  vahie  of 
.shares;  and  when  any  corporation  shall  decrease  the  amount  of  its 
capital  stock  as  hereinbefore  provided,  the  certificate  decreasing  the 
same  shall  be  published  for  three  weeks  successively,  at  least  once 
in  each  week,  in  a  newspaper  published  in  the  county  in  which  the 


116-i  CORPOKATIONS— F/.   Capital  Stock.  Ch.  21 

principal  office  of  the  corporation  is  located ;  the  first  publication  to 
be  made  within  fifteen  days  after  the  filing  of  snch  certificate,  and 
in  default  thereof  the  directors  of  the  corporation  shall  be  jointly 
and  sevei-ally  liable  for  all  the  debts  of  tlie  corporation  contracted 
before  the  filing  of  the  said  certificate,  and  the  stockholders  shall  also 
be  liable  for  such  sums  as  they  may  respectively  receive  of  the 
amount  so  reduced :  Provided,  no  such  decrease  of  capital  stock 
shall  release  the  liability  of  any  stockholder,  whose  shares  have  not 
been  fully  jDaid,  for  debts  of  the  corporation  theretofore  contracted. 
1901,  c.  -2,  s.  32. 

1 1 65.  Certificates  of  stock.  Every  stockholder  shall  have  a  cer- 
tificate sigTied  by  the  president  and  treasurer,  or  secretary,  certify- 
ing the  nimiber  of  shares  o\\Tied  by  him  in  such  corporation. 

1901,  c.  2,  s.  20. 

1166.  Duplicate  certificates  issued  by  directors.  Every  cor- 
poration may  issue  a  new  certificate  of  stock  in  the  place  of  any  cer- 
tificate theretofore  issued  by  it,  alleged  to  have  been  lost  or  destroyed, 
and  the  directors  authorizing  such  issue  of  a  new  certificate  may,  in 
their  discretion,  req\iire  the  owner  of  the  lost  or  destroyed  certificate, 
or  his  legal  I'epresentatives,  to  give  the  corporation  a  bond,  in  such 
sum  as  they  may  direct,  as  an  indemnity  against  any  claim  that 
may  be  made  against  such  corporation.  A  new  certificate  may  be 
issued  without  requiring  any  bond  when,  in  the  judgment  of  the 
directors,  it  is  proper  so  to  do. 

1885,  c.  265;   1901,  e.  2,  s.  94. 

•  1167.    Action  to  compel   issuance  of  duplicate  certificate. 

Whenever  any  corporation  shall  have  refused  to  issue  a  new  certifi- 
cate of  stock  in  place  of  one  theretofore  issued  by  it,  or  by  any  cor- 
poration of  which  it  is  a  successor,  alleged  to  have  been  lost  or 
destroyed,  the  owner  of  the  lost  or  destroyed  certificate  or  his  legal 
representatives  may  maintain  a  civil  action  in  the  superior  court  of 
the  county  in  which  the  principal  office  of  the  corporation  is  located 
to  compel  such  corporation  to  issue  a  diiplicate  certificate  of  stock 
in  the  place  of  the  certificate  alleged  to  have  been  lost  or  destroyed ; 
and  if  the  issues  of  fact  arising  upon  the  pleadings  shall  be  found 
in  favor  of  the  plaintiff,  the  court  shall  make  an  order  requiring 
the  corjjoration  or  other  party,  within  such  time  as  it  shall  desig- 
nate, to  issvie  and  deliver  to  the  plaintiff  a  new  certificate  for  the 
number  of  sliares  of  the  capital  stock  of  the  corporation  which  shall 
have  been  found  to  be  owned  by  the  plaintiff.  In  making  tlie  order 
the  court  shall  direct  that  the  plaintiff  deposit  such  security  as  to 
the  court  shall  appear  sufficient  to  indemnify  any  person  other  than 
the  plaintiff,  who  shall  thereafter  appear  to  l^e  the  lawful  o^\^ler  of 

326 


1167  COKPOKATIONS— 7/.  Capital  Stock.  Ch.  21 

such  certificate  stated  to  be  lost  or  destroyed ;  and  the  court  luay  also 
direct  publication  of  such  notice,  either  preceding  or  succeeding  the 
making  of  such  final  order,  as  it  shall  deem  proper.  Any  person 
who  shall  thereafter  claim  any  rights  under  the  certificate  so  lost  or 
destroyed  shall  have  recourse  to  said  indemnity,  and  the  corpora- 
tion shall  be  discharged  from  all  liability  to  such  person  by  reason 
of  compliance  with  the  order. 
1901,  c.  2.  a.  95. 

1168.  Shares,  personal  property;  how  transferred;  held  as  col- 
lateral. The  shares  of  stock  in  every  corporation  shall  be  personal 
property,  and  shall  be  transferable  on  the  books  of  the  corporation 
in  such  manner  and  under  such  regulations  as  the  by-laws  provide; 
and  whenever  any  transfer  of  shares  shall  be  made  for  collateral 
security,  and  not  absolutely,  it  shall  be  so  expressed  in  the  entry  of 
the  transfer. 

Code,  s.  689;    1901,  c.  2,   s.  21. 

1 1 69.  Assessments  upon  shares.  The  directors  of  every  corpo- 
ration may,  from  time  to  time,  make  assessments  upon  the  shares  of 
stock  subscribed  for,  not  exceeding,  in  the  whole,  the  par  value 
thereof,  remaining  unpaid;  and  the  sums  so  assessed  shall  be  paid 
to  the  treasurer  at  such  times  and  by  such  instalments  as  the  direc- 
tors shall  direct,  said  directors  having  given  thirty  days'  notice  of 
the  assessment  and  of  the  time  and  place  of  pa\Tiient,  either  per- 
sonally or  by  mail,  or  by  publication  in  a  newspaper  published  in 
the  county  where  the  corporation  is  established. 

1901,  c.  2,  s.  23. 

1170.  Shares  sold  to  pay  assessments.  If  the  o^raer  of  any 

shares  shall  neglect  to  pay  any  sum  assessed  thereon  for  thirty  days 
after  the  time  appointed  for  ])ayment,  the  treasurer,  when  ordered 
by  the  board  of  directors,  shall  sell,  at  public  auction,  such  numbers 
of  the  shares  of  the  delinquent  o^vner  as  will  pay  all  assessments 
then  due  from  him,  with  intei'est,  and  all  necessary  incidental 
charges,  and  shall  transfer  the  shares  sold  to  the  purchaser,  who 
shall  be  entitled  to  a  certificate  therefor. 
1901,  c.  2,  s.  24. 

1171.  Notice  of  sale.  The  treasurer  shall  give  notice  of  the  time 
and  place  appointed  for  the  sale,  and  of  the  sum  due  on  each  share, 
by  advertising  the  same  three  weeks  successively,  once  in  each  week, 
before  the  sale,  in  some  newspaper  published  in  the  coimty  where 
the  principal  office  of  the  corporation  is  located,  at  the  courthouse 
door,  and  by  mailing  a  notice  thereof  to  the  last  known  postoffiee 
address  of  the  delinquent  stockholder. 

1901,  e.  2,  s.  25. 

327 


llTi'  CORPORATIONS— 17.   Capital  Stocl:  Cli.  21 

1172.  Certain  construction  companies  may  take  stock  and 
bonds  for  labor,  materials,  etc.:  statements  to  contain  the  facts. 

C'di-poratiuiis  liaving  for  their  object  the  building,  eoiistrucliuir  or 
repairing  of  railroads,  water,  gas  or  electric  works,  tnnnels,  bridges, 
viaducts,  canals,  hotels,  wharves,  piers,  or  any  like  works  of  inter- 
nal improvement  or  public  use,  or  utility,  may  subscribe  for,  take, 
pay  for,  hold,  nse  and  dispose  of  stock  or  bonds  in  any  corporation 
formed  for  the  purpose  of  constructing,  maintaining  and  operating 
any  such  public  works;  and  the  directors  of  any  such  corporation 
formed  for  the  purpose  of  constructing,  maintaining  and  operating 
any  public  work  of  the  description  aforesaid  may  accept  in  payment 
of  any  such  subscription,  or  purchase,  real  or  personal  property, 
necessary  for  the  purposes  of  such  corporation,  or  work,  labor  and 
services  performed,  or  materials  furnished  to,  or  for,  siich  corpora- 
tion to  the  amount  of  the  value  thereof,  and  from  time  to  time  issue 
upon  any  such  subscription  or  purchase,  in  such  instalments  nr 
proportions  as  STich  directors  may  agree  upon,  full-paid  stock,  in  full 
or  partial  performance  of  the  whole,  or  any  part  of  such  subscription 
or  purchase,  and  the  stock  so  issued  shall  be  full-paid  stock,  and 
not  liable  to  any  further  call,  neither  shall  the  holder  thereof  be 
liable  for  any  further  payments.  And  in  all  statements  and  reports 
of  the  corporation  to  be  published  or  filed,  this  stock  shall  not  be 
stated,  or  reported,  as  being  issued  for  cash  paid  to  the  corporation, 
but  shall  be  reported  and  published  in  this  respect  according  to  the 
fact. 

1901,  c.  2,  s.  55. 

1173.  One   corporation   may   hold   stock   and   securities  of 

another.  Any  corporation  may  purchase,  hold,  assign,  transfer, 
mortgage,  pledge  or  otherwise  dispose  of  the  shares  of  the  capital 
stock  of,  or  any  bonds,  securities  or  evidences  of  indebtedness  cre- 
ated by,  any  other  corporation  or  corporations  of  this  or  any  other 
state,  and  while  owner  of  such  stock  may  exercise  all  the  rights,  pow- 
ers and  privileges  of  ownership,  including  the  right  to  vote  thereon. 
1903,  c.  660,  s.  3. 

VII.       AjIENDilENTS,     SUKRENDEK     AND     EXTENSION. 

1174.  Amendments  before  payment  of  stock.  It  shall  be  lawful 

for  the  incorporators  of  any  incorjioration,  before  the  payment  of 
any  part  of  its  capital,  to  file  with  the  secretary  of  state  an  amended 
certificate  of  incorporation,  duly  signed  by  the  incorporators  named 
in  the  original  certificate  of  incorporation,  and  duly  acknowledged 
or  proved,  modifying,  changing  or  altering  the  original  certificate 
of   incorporation   in   whole,   or   in   part,    which   amended   certificate 


1174  CORPORATIONS— TT/.  Amendments,  etc.  Ch.  21 

of  incorporation  shall  take  the  place  of  the  original  certificate  of 
incorporation,  and  when  recorded  in  the  proper  county  shall  be 
deemed  to  have  been  filed  and  recorded  on  the  date  of  filing  and 
recording  the  original  certificate  of  incorporation:  Provided,  the 
officers  shall  be  entitled  to  the  same  fees  for  filing  and  recording  the 
amended  certificate  of  incorporation  as  if  they  were  original ;  but 
there  shall  be  charged  no  additional  organization  tax,  except  when 
the  certificate  of  incorporation  is  amended  by  increasing  the  capital 
stock,  in  Avhich  event,  an  additional  organization  tax  shall  be  paid 
u])on  snch  increase. 
1901,  c.  2,  s.  28. 

1175.  Amendments,  generally.  Every  corporation,  whether  or- 
ganized under  a  special  act  of  incorporation,  or  under  general  laws, 
and  which  might  now  be  created  under  the  provisions  of  this  chap- 
ter, may  change  the  nature  of  its  business,  relinquish  one  or  more 
branches  thereof,  or  extend  its  business  to  such  other  branches  as 
might  have  been  inserted  in  its  original  certificate  of  incorporation, 
change  its  name,  increase  its  capital  stock,  decrease  its  capital  stock, 
change  the  par  value  of  the  shares  of  its  capital  stock,  extend  its  cor- 
porate existence,  create  one  or  more  classes  of  preferred  stock,  and 
make  such  other  amendment,  change  or  alteration  as  may  be  desired, 
in  manner  following:  The  board  of  directors  shall  pass  a  resolution 
declaring  that  such  change  or  alteration  is  advisable,  and  call  a 
meeting  of  the  stockholders  to  take  action  thereon ;  the  meeting  shall 
be  held  upon  such  notice  as  the  by-laws  provide,  and  In  the  absence 
of  such  provisions,  upon  ten  days'  notice,  given  personally  or  by 
mail ;  if  two-thirds  in  interest  of  each  class  of  the  stockholders  having 
voting  powers  shall  vote  in  favor  of  s\Tch  amendment,  change  or  alter- 
ation, a  certificate  thereof  shall  be  signed  by  the  president  and  sec- 
retary, under  the  corporate  seal,  acknowledged  or  proved,  as  in 
the  case  of  deeds  to  real  estate,  and  such  certificate,  together  with 
the  written  assent,  in  person  or  by  proxy,  of  two-thirds  in  interest 
of  each  class  of  such  stockholders,  shall  be  filed  and  recorded  in  the 
office  of  the  secretary  of  state,  and  upon  such  filing  he  shall  issue  a 
certified  copy  thereof,  which  shall  be  recorded  in  the  county  in 
which  the  original  certificate  of  incorporation  is  recorded,  and  there- 
upon the  certificate  of  incorporation  shall  be  deemed  to  be  amended 
accordingly:  Provided,  that  such  certificate  of  amendment,  change 
or  alteration  sliall  contain  only  such  provision  as  it  would  be  lawful 
and  proper  to  insert  in  an  original  certificate  of  incorporation  made 
at  the  time  of  making  such  amendment,  and  the  certificate  of  the 
secretary  of  state,  under  his  official  seal,  that  such  certificate  and 
assent  have  been  filed  in  his  office  shall  be  taken  and  accepted  as 
evidence  of  such  change,  or  alteration,  in  all  courts  and  places.      And 


1175  COEPORATIONS— T7/.  Ainendmenls,  He.  Ch.  21 

any  corporation  which  could  not  now  be  created  under  the  provisions 
of  this  chapter  may  in  like  manner  increase  or  decrease  its  capital 
stock,  or  change  its  name. 

1893,  c.  380;  1899,  c.  GIS;  1901,  c.  2,  ss.  29,  30;  1903,  c.  510. 

1176.  Change  of  location  of  principal  office.  The  board  of  direc- 
tors of  any  corporatii>n,  organized  under  the  laws  of  this  state,  may 
change  the  location  of  the  principal  office  of  such  corporation  within 
this  state  to  any  other  place  within  this  state,  by  resolution  adopted 
at  a  regular  or  special  meeting  of  such  board,  by  the  votes  of  at  least 
two-thirds  of  the  members  of  such  board :  Provided,  that  no  cer- 
tificate shall  be  required  to  be  filed  of  the  removal  of  any  office  from 
one  point  to  another  in  the  same  town,  township  or  city  of  the 
state.  Upon  the  adoption  of  a  resolution  as  aforesaid,  a  copy  thereof 
shall  be  filed  in  the  office  of  the  secretary  of  state,  signed  by  the 
president  and  secretary  of  such  corporation,  and  sealed  with  its  cor- 
porate seal. 

1901,  c.  2,  s.  31. 

1177.  Surrender  of  corporate  rights  before  payment  of  stock. 

The  incorporators  named  in  any  certificate  of  incorporation,  before 
the  payment  of  any  part  of  the  capital  stock,  and  before  beginning 
the  business  for  which  the  corporation  was  created,  may  surrender 
all  their  corporate  rights  and  franchises,  by  filing  in  the  office  of 
the  secretary  of  state  a  certificate  verified  by  oath,  that  no  part  of 
the  capital  stock  has  been  paid  and  such  business  has  not  been  begun, 
and  siirrendering  all  rights  and  franchises,  and  thereupon  the  said 
corporation  shall  be  dissolved. 
1901,  c.  2,  s.  35. 

1 1 78.  Extension  of  corporate  existence.  Any  corporation,  cre- 
ated by  special  charter,  or  under  the  general  law,  for  any  objects 
which  are  allowed  by  this  chapter  may  extend  its  corporate  existence 
in  the  manner  prescribed  herein:  Provided,  that  if  such  corpora- 
tion possesses  franchises,  powers,  privileges,  immunities  or  advan- 
tages which  could  not  be  obtained  under  this  chapter,  such  extension 
shall  not  continue,  renew  or  extend  such  franchises,  powers,  privi- 
leges, immunities  or  advantages,  but  the  filing  of  the  certificate  of 
extension  shall  operate  as  a  waiver  and  abandonment  of  such  fran- 
chises, powers,  privileges  and  advantages. 

1901,  c.  1.  s.  37. 

VTTI.        C0RP0];.\TE    j\rKETIXC.S. 

1179.  Place  of  meetings;  books  at  principal  office:  jurisdiction 

superior  court  over  books.  Tlie  meetings  of  the  stoeklin](l(>rs  of 
every  corporation  of  this  state  shall  be  hold  at  the  principal  office  in 


1179       CORPORATIONS— y///.   Corporate  Meetings.       Ch.  21 

tliis  state.  The  directors  may  hold  their  meetings,  and  have  an  office 
nnd  keep  the  books  of  the  corporation  (except  the  stock  and  transfer 
Ixioks)  outside  of  the  state.  Every  corjjoration  shall  maintain  a 
principal  office  in  this  state,  and  have  an  agent  in  charge  thereof, 
wherein  shall  be  kept  the  stock  and  transfer  books  for  the  inspection 
of  all  who  are  authorized  to  see  the  same,  and  for  the  transfer  of 
stock.  The  superior  court  may,  upon  proper  cause  shown,  order  any 
or  all  of  the  books  of  said  corporation  to  be  forthwith  brought  within 
this  state,  and  kept  therein  at  such  place  and  for  such  time  as  may 
lie  designated  in  such  order,  and  the  charter  of  any  corporation  fail- 
ing to  comply  with  such  order  may  be  declared  forfeited  by  the 
(■curt  making  such  order.  And  it  shall  thereupon  cease  to  be  a  cor- 
] Miration,  and  all  its  directors  and  officers  shall  be  liable  to  be  pun- 
ished for  contempt  of  court  for  disobedience  of  such  order. 

1901,  c.  2,  s.  49. 

1180.  Transfer  and  stock  books  at  principal  office;  only  evi- 
dence as  to  stockholders,  when;  directors'  duties.  Every  corpo- 
ration shall  keep  at  its  principal  and  registered  office  in  this  state 
the  transfer  books,  in  which  the  transfer  of  stock  shall  be  registered, 
and  the  stock  books,  which  shall  contain  the  names  and  addresses 
of  the  stockholders,  the  number  of  shares  held  by  them  respectively, 
which  shall  at  all  times  during  the  usual  hours  for  business  be  open 
to  the  examination  of  every  stockholder;  and  the  books  aforesaid 
shall  be  the  only  evidence  as  to  who  are  the  stockholders  entitled 
to  examine  such  books  or  list,  and  to  vote  at  elections ;  and  the  board 
of  directors  shall  produce  at  the  time  and  place  of  such  election 
such  books  or  list,  there  to  remain  during  the  election,  and  the  neg- 
lect or  refusal  of  said  directors  to  produce  the  same  shall  render  them 
ineligible  to  any  office  at  such  election. 

1901,  c.  2,  s.  38. 

•1181.  Transfer  book  determines  right  to  vote.  In  case  the  right 

to  vote  upon  any  share  of  stock  shall  be  questioned,  the  stock  books 
of  the  corporation  shall  be  referred  to,  to  ascertain  who  are  the 
stockholders,  and  in  case  of  a  discrepancy  between  the  books,  the 
transfer  book  shall  control  and  determine  who  are  entitled  to  vote. 

1901,  c.  2,   s.  45. 

1182.   Directors,  how  elected;  quorum  for.    All  elections  for 

directors  shall  be  by  ballot,  unless  otherwise  expressly  provided  in 
the  charter  or  certificate  of  incorporation  or  by-laws;  the  poll  shall 
remain  open  one  hour,  unless  all  the  stockholders  are  present  in  per- 
son or  by  proxy  and  have  sooner  voted,  or  unless  all  the  stockholders 
Avaive  this  provision  in  writing;  the  persons  receiving  the  greatest 


1182       CORPORATIONS— T7//.   Corporate  Meetings.       Ch.  21 

inimber  of  votes  shall  be  the  directors:  Provided,  however,  that  a 
majority  of  all  the  stock  issued  and  outstanding  shall  be  present 
in  person  or  by  proxy. 
1901,  c.  2,  s.  39. 

1183.  Votes  stockholders  entitled  to;  cumulative  voting.   The 

certificate  of  incorporation,  original  or  amended,  of  any  corporation 
now  or  hereafter  organized  under  the  laws  of  this  state,  and  there- 
under issuing  or  authorized  to  issue  shares  of  its  capital  stock,  may 
provide  that,  at  all  elections  of  directors,  managers  or  trustees,  each 
stockholder  shall  be  entitled  to  as  many  votes  as  shall  equal  the 
number  of  his  shares  of  stock  multiplied  by  the  number  of  directors, 
managers  or  trustees  to  be  elected,  and  that  he  may  cast  all  of  such 
votes  for  a  single  director,  manager  or  trustee,  or  may  distribute 
them,  among  the  number  to  be  voted  for,  or  any  two  or  more  of 
them,  as  he  may  see  fit,  which  right,  when  exercised,  shall  be  termed 
cumulati^'e  voting.  This  section  shall  not  be  construed  as  affecting 
in  anywise  the  determination  of  whether  or  not  the  right  of  cumula- 
tive voting  has  been  heretofore  granted  by  implication,  or  the  right 
of  cumulative  voting,  if  any,  granted  specifically  by  special  charter, 
or  certificate  of  incorporation. 

1901,  c.  2,  s.  40. 

1184.  Votes  stockholders  entitled  in  absence  of  special  pro- 
vision; proxies;  transfers  within  twenty  days  of  election.  Unless 

otherwise  provided  in  the  charter,  certificate  of  incorporation  or  by- 
laws of  the  corporation,  at  every  election  each  stockholder,  whether 
resident  or  non-resident,  shall  be  entitled  to  one  vote  in  person  or 
by  proxy,  duly  authorized  in  writing,  for  each  share  of  the  capital 
stock  held  by  him,  but  no  proxy  shall  be  voted  on  after  three  years 
from  its  date ;  nor  shall  any  share  of  stock  be  voted  on  at  any 
election  which  has  been  transferred  on  the  books  of  the  corporation 
within  twenty  days  next  preceding  such  election. 
1901,  c.  2,  s.  41. 

1185.  stock  held  by  fiduciaries,  pledgees  and  married  women. 

Every  person  holding  stock  as  executor,  admiiiistrntor,  guardian  or 
trustee,  or  in  any  other  representative  or  fiduciary  capacity,  may 
represent  the  same  at  all  meetings  of  the  corporation,  and  may  vote 
thereon  as  a  stockholder,  with  the  same  effect  as  if  the  absolute  owner 
thereof,  unless  the  instrument  creating  the  trust  shall  provide  to 
the  contrary.  A  married  woman  holding  stock  may  vote  the  same, 
in  person  or  by  proxy,  in  the  same  manner  and  with  the  same  effect 
as  if  she  were  a  feme  sole;  and  every  person  who  shall  pledge  his 
stock  as  collateral  security  may,  nevertheless,  represent  the  saTUje 
at  all  such  meetings,  and  may  vote  thereon  as  a  stockholder,  unless 

332 


11S5       COEPOEATIONS— F///.   Corporate  Meetings.       Cli.  21 

in  the  transfer  to  the  pledgee  on  the  books  of  the  corporation  he 
shall  have  expressly  empowered  the  pledgee  to  vote  thereon,  in  which 
case  only  the  pledgee  or  his  proxy  may  represent  said  stock  and  vote 
thereon. 

1901.  c.  2,  s.  42;    1901,  c.  474. 

1186.  Stock  held  by  life  tenant.  Where  stock  is  owned  by,  or 
shall  be  transferred  on  its  record  books  to,  one  for  life  with  remain- 
der over,  such  life  tenant  at  all  meetings  of  such  corporation  may 
represent  and  vote  said  stock  in  person  or  by  proxy,  in  the  same 
manner  and  with  tlie  same  effect  as  if  such  life  tenant  was  the  abso- 
lute owner  thereof. 

1901,  c.  474,  s.  2. 

1187.  Shares  belonging  to  corporation.   Shares  of  stock  of  a 

corporation  belonging  to  said  corporation  shall  not  be  voted  upon 
directly  or  indirectly. 

1901,  c.  2,  s.  43. 

1188.  Failure  to  hold  election,  effect;  judge  may  order.  If  the 

election  for  directors  of  a  corporation  shall  not  be  held  on  the  day 
designated  by  the  act  or  certificate  of  incorporation  or  by-laws,  the 
directors  shall  cause  the  election  to  be  held  as  soon  thereafter  as 
conveniently  may  be.  jSTo  failure  to  elect  directors  at  the  designated 
time  shall  work  any  forfeiture  or  dissolution  of  the  corporation; 
and  if  the  directors  shall  fail  or  refuse  for  thirty  days  after  receiv- 
ing a  written  request  for  such  election  from  those  owning  one-tenth 
of  the  outstanding  shares  of  stock,  to  call  a  meeting  for  such  elec- 
tion, then  the  judge  of  the  district,  or  the  judge  presiding  in  the 
courts  of  the  district,  in  which  the  principal  office  of  the  corpora- 
tion is  located,  may,  upon  the  application  of  any  stockholder,  and 
on  notice  to  the  directors,  order  an  election  or  make  such  other 
order  as  justice  may  require.  The  proceedings  governing  the  issuance 
and  hearing  of  injunctions  shall,  as  far  as  applicable,  govern  such 
hearing. 
1901,  c.  2,  s.  46. 

1189.  Jurisdiction  of  superior  court  over  elections.  The  superior 

court  judge,  upon  application  of  any  person  who  may  be  aggrieved 
by,  or  complain  of,  any  election,  or  any  proceeding,  act  or  matter  in 
or  touching  the  same,  ten  days'  notice  having  been  given  to  the  adverse 
party,  or  to  those  who  are  to  be  affected  thereby,  of  such  intended 
application,  shall  proceed  forthwith,  at  chambers,  in  any  county  in 
the  district  in  which  the  principal  office  of  the  corporation  is  situated, 
to  hear  the  affidavits,  proofs  and  allegations  of  the  parties,  or  other- 
wise inquire  into  the  matter  or  causes  of  complaint,  and  thereupon 


11S9       CORPOKATIONS— y///.   Corpwaie  Meetings.       Ch.   21 

establish  the  election  so  complained  of,  or  order  a  new  election,  or  ' 

make  such  order,  and  give  such  relief  in  the  premises  as  right  and  I 

justice  may  require.    The  proceedings  shall  be  the  same  as  in  injiinc-  i 

tions,  as  nearly  as  may  be.  j 

1901,  c.  2,  s.  47.  ; 

1190.  Meetings  called  by  three  stockholders,  when.  Whenever, 

for  any  reason,  a  legal  meeting  of  the  stockholders  of  any  corporation 
can  not  be  otherwise  called,  three  or  more  stockholders,  having  voting 
powers,  may  call  such  meeting  by  publishing  ten  days'  notice  of  the 
time,  place  and  purposes  of  the  meeting,  in  a  newspaper  published 
in  the. county  in  which  the  principal  office  in  this  state  is  located, 
and  mailing  such  notice  to  all  stockholders  whose  postoffice  address 
is  known,  or  can  be  ascertained.  A  meeting  called  as  aforesaid  shall 
be  a  legal  meeting  of  the  corporation,  and  if  there  be  no  officers 
present,  the  stockholders  may  elect  officers  for  the  meeting;  and  the 
secretary  of  the  meeting  shall  record  the  proceedings  thereof  in  the 
book  of  minutes  of  the  corporation. 
1901,  c.  2,  s.  51. 

IX.     Dividends. 

1191.  When  declared;  working  capital.  The  directors  of  every 

corporation  created  under  this  chapter  shall,  in  January  in  each 
year,  imless  some  specific  day  or  days  for  that  purpose  be  fixed  in 
its  charter,  certificate  of  incorporation  or  by-laws,  and  in  that  case 
then  on  the  days  so  fixed,  after  reserving,  over  and  above  its  capital 
stock  paid  in,  as  a  working  capital  for  said  corporation,  such  sum,  if 
any,  as  shall  have  been  fixed  by  the  stockholders,  declare  a  dividend 
among  its  stockholders  of  the  whole  of  its  accumulated  profits  exceed- 
ing the  amount  so  reserved,  and  pay  the  same  to  such  stockholders  on 
demand :  Provided,  that  the  corporation  may,  in  its  certificate  of 
incorporation,  or  in  its  by-laws,  give  the  directors  power  to  fix  the 
amount  to  be  reserved  as  a  working  capital. 
1901,  e.  2,  s.  52. 

1192.  From  profits  and  surplus  only;  liability  of  directors;  limi- 
tations of  actions.  ISTo  corporation  shall  declare  and  pay  dividends, 
except  from  the  surplus  or  net  profits  arising  from  its  business,  nor 
when  its  debts,  whether  due  or  not,  shall  exceed  two-thirds  of  its 
assets,  nor  divide,  withdraw,  or  in  any  way  pay  to  the  stockholders, 
or  any  of  them,  any  part  of  its  capital  stock,  or  reduce  its  capital 
stock,  except  according  to  this  chapter,  and  in  case  of  any  violation 
of  the  provisions  of  this  section,  the  directors  under  whose  adminis- 
tration the  same  may  happen  shall  be  jointly  and  severally  liable, 
at  any  time  within  six  years  after  paying  such  dividend,  to  the  corpor- 


1192  CORPOEATIONS— 7Z.  Dividends.  Ch.  21 

ation  and  to  its  creditors,  in  the  event  of  its  dissolution  or  insolvency, 
to  the  full  amount  of  the  dividend  so  paid,  or  capital  stock  so  divided, 
withdrawn,  paid  out  or  reduced,  with  interest  on  the  same  from  the 
time  such  liability  accrued :  Provided,  that  any  director  who  may 
have  been  absent  when  the  same  was  done,  or  who  may  have  dissented 
from  the  act  or  resolution  by  which  the  same  was  done,  may  exoner- 
ate himself  from  such  liability  by  causing  his  dissent  to  be  entered 
at  large  on  the  minutes  of  the  directors,  at  the  time  the  same  was 
done,  or  forthwith  after  he  shall  have  notice  of  the  same. 

Code,  s.  081;    1901,  c.  2,  ss.  33,  52. 

X.     Foreign  Coepokations. 

1193.  May  do  business  here.  Any  corporation  created  by  any 
other  state,  or  by  any  foreigni  state,  kingdom  or  government  may 
acquire  by  devise  or  otherwise  and  hold,  mortgage,  lease  and  convey 
real  estate  in  this  state  for  the  purpose  of  prosecuting  its  business, 
or  objects,  or  siich  real  estate  as  it  may  acquire  by  way  of  mortgage 
or  otherwise  in  the  payment  of  debts  due  such  corporation:  Provided, 
such  foreign  state,  kingdom  or  government,  under  whose  laws  such 
corporations  were  created,  shall  not  be  at  the  time  of  such  purchase 
at  war  with  the  United  States. 

1901,  c.  2,  s.  93. 

1194.  To  file  charters  and  statement  with  secretary  of  state; 

fees  therefor;  forfeiture.  Every  foreign  corporation  before  being 
permitted  to  do  business  in  this  state,  railroad,  banking,  insurance, 
express  and  telegraph  companies  excepted,  shall  file  in  the  office  of 
the  secretary  of  state  a  copy  of  its  charter  or  articles  of  agreement, 
attested  by  its  president  and  secretary,  under  its  corporate  seal,  and 
a  statement  attested  in  like  manner  of  the  amount  of  its  capital  stock 
authorized,  the  amount  actually  issued,  the  principal  office  in  this 
state,  the  name  of  the  agent  in  charge  of  such  office,  the  character  of 
the  business  which  it  transacts  and  the  names  and  postoffice  addresses 
of  its  officers  and  directors.  And  such  corporation  shall  pay  to  the 
secretary  of  state,  for  the  iise  of  the  state,  ten '  cents  for  every  one 
thousand  dollars  of  the  total  amount  of  the  capital  stock  authorized 
to  be  issued  by  such  corporation,  but  in  no  case  less  than  ten  dollars 
nor  more  than  one  hundred  dollai's.  And  every  corporation  failing 
to  comply  with  the  provisions  of  this  section  shall  forfeit  to  the  state 
five  hundred  dollars,  to  be  recovered,  with  costs,  in  an  action  to  be 
prosecuted  by  the  attorney  general,  who  shall  prosecute  such  actions 
whenever  it  shall  appear  that  this  section  has  been  violated. 

1901,  c.  i,  s.  57;   1903,  c.  766. 

Note.     For  service  of  justice's  summons,  see  s.  1448. 


1195  CORPOEATIONS— Z/.  Dissohdion.  Ch.  21 

XI.     Dissolution. 

1195.  Voluntary.  Whenever,  in  the  judguieut  of  the  board  of 
directors,  it  shall  be  deemed  advisable  and  most  for  the  benefit  of  such 
corporation  that  it  should  be  dissolved,  the  board,  within  ten  days 
after  the  adoption  of  a  resolution  to  that  effect  by  a  majority  of  the 
whole  board,  at  any  meeting  called  for  that  purpose,  of  which  meeting 
every  director  shall  have  received  at  least  three  days'  notice,  shall 
cause  notice  of  adoption  of  such  resolution  to  be  mailed  to  each  stock- 
holder residing  in  the  United  States,  to  his  last  known  postotfice 
address,  and  also,  beginning  within  said  ten  days,  cause  a  like  notice 
to  be  published  in  a  newspaper  published  in  the  county  wherein  the 
corporation -shall  have  its  principal  office,  at  least  four  weeks  success- 
ively, once  a  week,  next  preceding  the  time  appointed  for  the  same, 
of  a  meeting  of  the  stockholders  to  be  held  at  the  office  of  the  corpora- 
tion, to  take  action  upon  the  resolutions  so  adopted  by  the  board  of 
directors,  and  which  meeting  may,  on  the  day  so  appointed,  by  con- 
sent of  a  majority  in  interest  of  the  stockholders  present,  be  adjourned 
from  time  to  time  for  not  less  than  eight  days  at  one  time,  of  which 
adjourned  meeting  notice  by  advertisement  in  said  newspaper  shall 
be  given ;  and  if  at  any  such  meeting  two-thirds  in  interest  of  all  the 
stockholders  shall  consent  that  a  dissolution  shall  take  place,  and 
sigTiify  their  consent  in  writing,  such  consent,  together  with  the 
list  of  the  names  and  residences  of  the  directors  and  officers,  certified 
by  the  president  and  the  secretary  or  treasurer,  shall  be  filed  in  the 
office  of  the  secretary  of  state,  who,  upon  being  satisfied  by  due  proof 
that  the  requirements  aforesaid  have  been  complied  with,  shall  issue 
a  certificate  that  such  consent  has  been  filed  and  the  board  of  direc- 
tors shall  cause  such  certificate  to  be  recorded  in  the  office  of  the  clerk 
of  the  superior  court  of  the  county  in  which  the  principal  office  of 
the  corporation  is  located,  and  published  four  weeks  successively,  at 
least  once  a  week,  in  a  newspaper  published  in  said  county;  and  upon 
the  filing  in  the  office  of  the  secretary  of  state  of  an  affidavit  of  the 
manager  or  publisher  of  such  newspaper  that  said  certificate  has  been 
so  published,  the  corporation  shall  be  dissolved,  and  the  board  shall 
proceed  to  settle  u]i  and  adjust  its  business  and  aifairs.  When- 
ever all  the  stockholders  shall  consent  in  writing  to  a  dissolution, 
no  meeting  or  notice  thereof  shall  be  necessary,  but  on  filing  said 
consent  in  the  office  of  the  secretary  of  state  he  shall  forthwith 
issue  a  certificate  of  dissolution,  which  shall  be  published  as  above 
provided,  and  recorded  in  the  office  of  the  clerk  of  the  sujierior  court 
of  the  county  in  which  the  principal  office  of  the  coi-poration  is 
located. 

moi,  c.  2,  s.  34. 


lliMj  CORPORATIONS— X/.  Dissolution.  Cli.   21 

1196.  Involuntary,  at  instance  of  private  persons.  Corpora- 
tions may  be  dissolved  by  civil  action,  instituted  by  the  corporation, 
a  stockholder,  or  creditor,  or  by  authority  of  tlie  attorney  general 
in  the  name  of  the  state,  in  the  cases  hereinafter  mentioned,  to-wit: 

1.  For  any  abuse  of  its  powers  to  the  injury  of  the  public  or  of 
the  stockholders,  or  of  its  creditors  or  debtors. 

2.  For  nonuser  of  its  powers  for  two  years  or  more  conseciitively. 

3.  When  it  shall  become  insolvent,  or  shall  suspend  its  ordinary 
■business  for  want  of  funds  to  carry  on  the  same,  or  be  in  imminent 

danger  of  insolvency,  or  has  forfeited  its  corporate  rights. 

4.  Upon  any  conviction  of  the  company  of  a  criminal  offense  if 
such  offense  be  persistent. 

Code,  s.  694;   1901,  c.  2,  s.  73. 

Note.     For  obtaining  leave  of  attorney  general,  see  ss.  828,  829. 

11 97.  Attorney  general  may  sue  to  restrain  ultra  vires  acts;  to 
compel  accounts;  to  remove  officers;  to  preserve  property.  An 

action  may  be  brought  by  the  attorney  general  in  the  name  of  the 
state,  upon  his  own  information,  or  upon  the  complaint  of  any 
private  party,  against  the  parties  offending  in  the  following  cases: 
To  restrain  by  injunction  any  corporation  from  assuming  or  exer- 
cising any  franchise,  or  transacting  any  business  not  allowed  by  its 
charter;  to  restrain  any  person  from  exercising  corporate  franchises 
not  granted ;  to  bring  directors,  managers,  and  officers  of  a  corpora- 
tion, or  the  trustees  of  funds  given  for  a  public  or  cliaritable  purpose, 
to  an  account  for  the  management  and  disposition  of  the  property 
confided  to  their  care ;  to  remove  such  officers  or  trustees  upon  proof 
of  gi-oss  misconduct;  to  secure,  for  the  benefit  of  all  interested,  the 
property  or  funds  aforesaid ;  to  set  aside  and  restrain  improper 
alienations  thereof,  and  generally  to  compel  the  faitliful  perform- 
ance of  duty,  and  prevent  all  malversations,  peculations  and  waste. 

Code,  ss.  607,  686;  1901,  c.  2,  s.  107. 

Note.     For  obtaining  leave  of  attorney  general,  see  ss.  828,  829. 

1198.  Involuntary,  at  instance  of  attorney  general.  An  action 

may  be  brought  by  the  attorney  general  in  the  name  of  the  state 
against  a  corporation  for  the  puri^ose  of  vacating  or  annulling  the 
act  or  certificate,  or  renewal  of  the  same,  creating  the  corporation,  on 
the  ground  that  such  act  or  certificate  or  renewal  was  procured  upon 
some  fraxidulent  suggestion,  or  concealment  of  a  material  fact,  by 
the  persons  incorporated,  or  by  some  of  them  or  with  their  knowledge 
and  consent,  or  annulling  the  existence  of  a  corporation,  other  than 
municipal,  whenever  such  corporation  shall — 

1.  Offend  against  the  act  creating,  altering,  or  renewing  such  cor- 
poration; or, 

Rev.  Vol.  1—18  337 


1198  CORPOEATIONS— Z/.  DissoIutio7i.  Ch.  21 

2.  Violate  any  law  by  which  such  corporation  shall  have  for- 
feited its  charter  by  abuse  of  its  powers;  or, 

3.  Whenever  it  shall  have  forfeited  its  privileges  or  franchises 
by  failure  to  exercise  its  power ;  or, 

4.  Whenever  it  shall  have  done  or  omitted  any  act  which  amounts 
to  a  surrender  of  its  corporate  rights,  privileges  and  franchises;  or, 

5.  Whenever  it  shall  exercise  a  franchise  or  privilege  not  conferred 
upon  it  by  law ;  or, 

6.  For  nonuser  of  its  powers  for  two  or  more  years  consecutively ; 

°^'  .  . 

7.  For    insolvency,   manifested   by   the   return   of   an   execution 

unsatisfied,  upon  a  judgment  against  the  company  docketed  in  the 
superior  court  of  the  county  where  it  has  its  principal  place  of 
business. 

And  it  shall  be  the  duty  of  the  attorney  general,  whenever  he 
shall  have  reason  to  believe  that  any  of  these  acts  or  omissions  can 
be  established  by  proof,  to  bring  the  action,  in  every  case  of  p\iblic 
interest,  and  also  in  every  other  case  in  which  satisfactory  security 
shall  be  given  to  indemnify  the  state  against  the  costs  and  expenses 
to  be  incurred  thereby. 

Code,  ss.  604,  605;    1889,  c.  533. 

1199.  Service  of  summons  in  actions  for.  In  any  action  for  the 

dissolution  of  a  corporation,  or  for  the  appointment  of  a  receiver 
thereof,  the  summons  must  be  served  on  the  corporation  by  service  on 
an  officer  or  agent  thereof  upon  whom  other  process  can  be  served,  and 
shall  be  served  on  the  stockholders,  creditors,  dealers  and  others  inter- 
ested in  the  affairs  of  the  company,  by  publishing  a  copy  thereof  at 
least  weekly  for  not  less  than  three  successive  weeks  in  some  news- 
paper printed  in  the  county  in  which  such  corporation  has  its  princi- 
pal place  of  business,  or  if  there  be  no  such  newspaper  published,  then 
by  posting  a  copy  of  such  summons  at  the  door  of  the  courthouse  of 
such  county,  and  jjublishing  a  copy  thereof  for  the  time  and  in  the 
manner  aforesaid  in  the  newspaper  published  nearest  the  county  seat 
of  the  county  in  which  such  corporation  has  its  principal  place  of 
business,  or  in  some  newspaper  published  in  the  city  of  Raleigh ; 
and  such  publication  shall  be  deemed  and  held  sufficient  service  on 
all  the  stockholders,  creditors  of,  or  dealers  with,  such  corporation, 
and  upon  the  corporation,  if  no  officer  can  after  due  diligence  be 
found  in  the  state  and  it  shall  have  no  process  agent  in  the  state ;  and 
all  such  stockholders,  creditors  or  dealers  or  other  parties  interested 
may  intervene  in  said  proceedings  and  become  parties  thereto  for 
themselves,  or  for  others  in  like  interest,  under  sucli  rules  as  the 
court  for  the  purpose  of  justice  shall  prescribe. 
Code,  s.  695. 

33S 


1200  COKPORATIONS— X7.  Dissolution.  Ch.  21 

1200.  Corporate  existence  continued  three  years  for  winding 

up.  All  corporations  whose  charters  shall  expire  by  their  own  limi- 
tation, or  shall  be  annulled  by  forfeiture  or  otherwise,  shall  never- 
theless be  continued  bodies  corporate  for  the  term  of  three  years  after 
the  time  when  they  would  have  been  so  dissolved,  for  the  purpose 
of  prosecuting  and  defending  actions  by  or  against  them,  and  of 
enabling  them  gradually  to  settle  and  close  their  concerns,  to  dispose 
of  and  convey  their  property,  and  to  divide  their  capital ;  but  not 
•for  the  purpose  of  continuing  the  business  for  which  such  corpora- 
tion may  have  been  established :  Provided,  that  in  any  pending  action 
the  court,  in  its  discretion,  may  extend  the  time  for  winding  up  the 
affairs  of  such  corporation. 
Code,  s.  667;   1901,  c.  2,  s.  58. 

1201.  Upon  dissolution,  directors  to  be  trustees;  powers  and 

duties;  debts  not  extinguished.  Upon  the  dissolution  in  any  man- 
ner of  any  corporation,  unless  otherwise  directed  by  an  order  of  the 
court,  the  directors  shall  be  trustees  thereof,  with  full  power  to  settle 
the  affairs,  collect  the  outstanding  debts,  sell  and  convey  the  property 
and  divide  the  moneys  and  other  property  among  the  stockholders, 
after  paying  its  debts,  as  far  as  such  moneys  and  property  shall 
enable  them.  They  shall  have  power  to  meet,  and  act  iinder  the  by- 
laws of  the  corporation,  and,  under  regulations  to  be  made  by  a  ma- 
jority of  said  trustees,  to  prescribe  the  tei-ms  and  conditions  of  the 
sale  of  such  property,  and  may  sell  all,  or  any  part  for  cash,  or  partly 
on  credit,  or  take  mortgages  or  bonds  for  part  of  the  purchase  price 
for  all  or  any  j^art  of  said  property.  In  case  of  the  dissolution  of  a 
corporation,  the  debts  due  to  and  from  it  shall  not  be  thereby 
extinguished. 

Code,  s.  687;   1901,  c.  2,  s.  59. 

1202.  Directors  as  trustees  may  sue  and  be  sued.  The  direc- 
tors, constituted  trustees  as  aforesaid,  shall  have  power  to  sue  for  and 
recover  the  aforesaid  debts  and  property,  in  the  name  of  the  corpora- 
tion, and  shall  be  sizable  by  the  same  name  for  the  debts  owing  by 
such  corporation,  and  shall  be  jointly  and  severally  responsible  for 
such  debts,  onlj'  to  the  amount  of  moneys  and  property  of  the  corpor- 
ation which  shall  come  to  their  hands  or  possession  as  such  trustees. 

1901,  c.  2,  s.  60. 

1203.  Jurisdiction  of  superior  court;  may  appoint  directors  or 

others  as  receivers;  powers  and  duties.  Whenever  any  corporation 
shall  be  dissolved  in  any  manner  whatsoever,  the  superior  court,  on 
application  of  any  creditor,  or  stockholder,  at  any  time,  may  either 
continue  the  directors  trustees  as  aforesaid,  or  appoint  one  or  more 
persons  to  be  receivers  of  such  coi-poration,  to  take  charge  of  the 


1203  CORPOEATIONS— Z/.  Dissolution.  Ch.   21 

estate  and  effects  thereof,  and  to  collect  the  debts  and  property  due 
and  belonging  to  the  corporation,  with  power  to  prosecute  and  defend, 
in  the  name  of  the  corporation,  or  otherwise,  all  suits  necessary  or 
proper  for  the  piirposes  aforesaid,  and  to  appoint  an  agent  or  agents 
under  them,  and  to  do  all  other  acts  which  might  be  done  by  such 
corporation,  if  in  being,  that  may  be  necessary  for  the  final  settle- 
ment of  its  unfinished  business ;  and  the  powers  of  siich  trustees  or 
receivers  may  be  continued  as  long  as  the  court  shall  think  necessary 
for  such  purposes. 

Code,  ss.  619,  6GS;   1901,  c.  2,  s.  61. 

1204.  Jurisdiction  of  judge.  The  judge  of  the  superior  court  shall 
have  jurisdiction  of  such  application  and  of  all  questions  arising 
in  the  proceedings  thereon,  and  make  such  orders,  injunctions,  and 
decrees  therein  as  justice  and  equity  shall  require  at  any  place  in 
the  district. 

Code,  s.  669;  1901,  e.  2,  s.  62. 

1205.  Injunction;  when  notice  and  undertaking  required.  An 

injunction  to  suspend  the  general  and  ordinary  business  of  a  cor- 
poration or  to  appoint  a  receiver  shall  not  be  granted  without  due 
notice  of  the  application  therefor  to  the  corporation,  except  where  the 
state  is  a  party  to  the  proceeding,  unless  the  plaintiff  shall  give  a 
written  undertaking,  executed  by  two  sufficient  sureties,  to  be  ap- 
proved by  the  judge,  to  the  effect  that  the  plaintiff  will  pay  all  dam- 
ages, not  exceeding  the  sum  to  be  mentioned  in  the  undertaking, 
which  such  corporation  may  sustain  by  reason  of  the  injunction,  or 
the  appointment  of  the  receiver,  if  the  court  shall  finally  decide  that 
the  plaintiff  was  not  entitled  thereto.  The  damages  may  be  ascer- 
tained by  a  reference,  or  otherwise,  as  the  court  shall  direct. 

Code,  s.  343;  C.  C.  P.,  s.  194. 

Note.     See  g.  818. 

1206.  Wages  for  two  months  lien  on  assets,   in  case  of  the 

insolvency  of  any  corporation  the  laborers  and  workmen  and  all  per- 
sons doing  labor  or  service  of  whatever  character  in  the  regular 
employment  of  such  corporation,  shall  have  a  first  and  prior  lien 
upon  the  assets  thereof  for  the  amount  of  wages  due  to  them  respect- 
ively for  all  labor,  work,  and  services  done,  performed  or  rendered 
within  two  months  next  preceding  the  date  when  proceedings  in 
insolvency  shall  be  actually  instituted  and  begun  against  such  insol- 
vent corporation,  which  lien  shall  be  prior  to  all  other  liens  that  can 
or  may  be  acquired  wpon  or  against  such  assets. 

1901,  c.  2,  s.   8". 

1207.  Distribution  of  funds.  After  payment  of  all  allowances, 
expenses  and  costs,  and  the  satisfaction  of  all  special  and  general 

340 


1207  CORPORATIONS— ZZ.  Dissolution.  Ch.  21 

liens  upon  the  funds  of  the  corporation  to  the  extent  of  their  lawful 
priority,  the  creditors  shall  be  paid  proportionately  to  the  amount  of 
their  respective  debts,  and  the  creditors  shall  be  entitled  to  distribu- 
tion on  debts  not  due,  making  in  such  case  a  rebate  of  interest,  when 
interest  is  not  accruing  on  the  same,  and  the  surplus  funds,  if  any, 
after  payment  of  the  creditors  and  the  costs,  expenses  and  allowances 
aforesaid,  and  the  preferred  stockholders,  according  to  their  respect- 
ive shares,  and  if  there  still  be  a  surplus  it  shall  be  divided  and  paid 
to  the  general  stockholders  proportionately,  according  to  their  re- 
spective shares.  Upon  the  distribiition  of  the  assets  of  an  insolvent 
corporation,  judgment  of  dissolution  shall  be  entered. 
Code,   s.   670;    1901,   c.   2,   ss.   63,  89. 

1208.  Dissolution  does  not  abate  actions;  receivers  to  be 

notified.  Any  action  now  pending,  or  to  be  hereafter  begun,  against 
any  corporation  which  may  become  dissolved  before  final  judgment, 
shall  not  abate  by  reason  thereof,  but  no  jiidgment  shall  be  entered 
therein,  except  upon  notice  to  the  trustees  or  receivers  of  the  cor- 
poration. 

1901,  c.  2,  s.  64. 

1209.  Judgment  of  forfeiture  against  a  corporation.  If  it  shall 

be  adjudged  that  a  corporation  against  which  an  action  shall  have 
been  brought,  has  forfeited  by  neglect,  abuse,  or  surrender,  its  cor- 
porate rights,  privileges  and  franchises,  judgment  shall  be  rendered 
that  the  corporation  be  excluded  from  such  corporate  rights,  privi- 
leges and  franchises,  and  that  the  corporation  be  dissolved. 
Code,  s.  617. 

1210.  Persons  claiming  to  be  corporation  liable  for  costs  of 

action.  If  judgment  be  rendered  in  such  action  against  a  corpor- 
ation, or  against  persons  claiming  to  be  a  corporation,  the  court  may 
cause  the  costs  therein  to  be  collected  by  execution  against  the  persons 
claiming  to  be  a  corporation,  or  by  attachment  or  process  against  the 
directors  or  other  officers  of  such  corporation. 
Code,  s.  618. 

1211.  Clerk  superior  court  to  file  copy  of  judgment  dissolving 
corporation  with  secretary  of  state;  costs  thereof.  A  copy  of 

every  judgment  dissolving  a  corporation  or  forfeiting  its  charter  shall 
be  forthwith  filed  by  the  clerk  of  the  court,  in  the  office  of  the  secre- 
tary of  state,  and  a  note  thereof  shall  be  made  by  the  secretary  of 
state,  on  the  charter  or  certificate  of  incorporation,  and  in  the  index 
thereof,  and  be  published  by  him  in  the  annual  report  hereinafter 
provided  for,  the  cost  of  which  shall  be  taxed  by  the  clerk  of  the 
superior  court,  in  the  action  wherein  the  corporation  is  dissolved. 
1001,  c.  2',  s.  65. 

341 


1212.  COKPOKATIOXS— AT/.  Execution.  Cli.  21 

XII.     Execution. 

1212.  How  issued  and  on  what  levied.  If  any  judgment  slmll 

be  rendered  against  a  corporation,  the  plaintiff  may  sue  out  such 
executions  against  the  property  of  a  corporation  as  is  provided  by 
hiw  to  be  issued  against  the  property  of  natural  persons,  which  execu- 
tions may  be  levied  as  well  on  the  current  money  as  on  the  goods, 
chattels,  lands  and  tenements  of  such  corporation. 
1901,  c.  2,  s.  66. 

1213.  Agent  must  furnish  information  as  to  property  to  officer 

with.  Every  agent  or  person  having  charge  or  control  of  any  property 
of  a  corporation,  on  request  of  any  public  officer  having  for  service 
a  writ  of  execution  against  it,  shall  furnish  to  him  the  names  of  the 
directors  and  officers  thereof,  and  a  schedule  of  all  its  property, 
including  debts  due  or  to  become  due  to  it,  so  far  as  he  may  have 
knowledge  of  the  same. 
1901,  c.  2,  s.  67. 

1214.  Shares  of  stock  sold  under.  Any  share  or  interest  in  any 
bank,  insurance  company,  or  other  joint  stock  company,  that  is  or 
may  be  incorporated  under  the  authority  of  this  state,  or  incorporated 
or  established  under  the  authority  of  the  United  States,  belonging 
to  the  defendant  in  execution,  may  be  taken  and  sold  by  virtue  of  such 
execution,  in  the  same  manner  as  goods  and  chattels. 

1901,  c.  2,  s.  69. 

1215.  Officer  entitled  to  information  as  to  stock.  The  clerk. 

cashier,  or  other  officer  of  such  company,  who  has  at  the  time  the 
custody  of  the  books  of  the  company,  shall,  upon  e'xhibiting  to  him 
the  writ  of  execution,  give  to  the  officer  having  such  writ  a  certificate 
of  the  number  of  shares  or  amoimt  of  the  interest  held  by  the  defend- 
ant in  such  company ;  and  if  he  shall  neglect  or  refuse  so  to  do,  or  if 
he  shall  wilfully  give  a  false  certificate  thereof,  he  shall  be  liable  to 
the  plaintiff  for  the  amount  due  on  said  execution,  with  costs. 
1901,  e.  2,  s.  70. 

1216.  Against  debts  due  corporation;  liability  of  agents  refus- 
ing compliance.  If  any  officer  holding  an  execution  shall  be  una- 
ble to  find  other  property  belonging  to  the  corporation  liable  to 
execution,  he  or  the  judgment  creditor  may  elect  to  satisfy  such 
execution  in  whole  or  in  part,  out  of  any  debts  due  to  the  corpora- 
tion ;  and  it  shall  be  the  duty  of  any  agent  or  person  having  custody 
of  any  evidence  of  such  debt,  to  deliver  the  same  to  the  officer,  for 
the  use  of  the  creditor,  and  such  delivery,  with  a  transfer  to  tlie  officer 
in  writing,  for  the  use  of  the  creditor,  and  notice  to  the  debtor  shall 

342 


1216  COEPOKATIONS— Z/7.  Execution.  Ch.   21 

be  a  valid  assignment  thereof;  and  such  creditor  may  sue  for  and 
collect  the  same  in  the  name  of  the  corporation,  subject  to  such  equit- 
able setoffs  on  the  part  of  the  debtor  as  in  other  assignments ;  and 
every  agent  or  person  who  shall  neglect  or  refuse  to  comply  with  the 
provisions  of  this  and  the  last  preceding  section,  shall  be  himself 
liable  to  pay  to  the  execution  creditor  the  amoimt  due  on  said  execu- 
tion, with  costs. 
1901,  c.  2,  s.   68. 

1217.  Proceedings  when  custodian  of  corporate  books  is  a 

nonresident.  When  the  clerk,  cashier,  or  other  officer  of  any  corpor- 
ation incorporated  under  the  laws  of  this  state,  who  has  the  custody 
of  the  books  of  registry  of  the  stock  thereof,  shall  be  nonresident  in 
this  state,  it  shall  be  the  duty  of  the  sheriff  receiving  a  writ  of  execu- 
tion issued  out  of  any  court  of  this  state  against  the  goods  and  chattels 
of  a  defendant  in  execution  holding  stock  in  such  company,  to  send 
by  mail  a  notice  in  writing,  directed  to  such  nonresident  clerk, 
cashier,  or  other  officer,  at  the  jjostoffice  nearest  his  reputed  place  of 
residence,  stating  in  such  notice  that  he,  the  said  sheriff,  holds  such 
writ  of  execution,  and  out  of  what  court,  at  whose  suit,  for  what 
amount,  and  against  whose  goods  and  chattels  such  writ  has  been 
issued,  and  that  by  virtue  of  such  writ  be,  the  sheriff,  seizes  and 
levies  upon  all  the  shares  of  stock  of  such  company  held  by  the 
defendant  in  execution  on  the  day  of  the  date  of  such  written  notice ; 
and  it  shall  also  be  the  duty  of  such  sheriff  on  the  day  of  mailing 
such  notice,  to  affix  and  set  up  upon  any  office  or  place  of  business  of 
such  company,  within  his  county,  a  like  notice  in  writing,  and  on 
the  same  day  to  seiwe  like  notice  in  writing  upon  the  president  and 
directors  of  said  company,  or  upon  such  of  them  as  reside  in  his 
county,  either  personally  or  by  leaving  the  same  at  their  respective 
places  of  abode;  and  the  sending,  setting  up  and  serving  of  siich 
notices  in  the  manner  aforesaid,  shall  constitute  such  levy  so  made 
a  valid  levy  of  such  writ  upon  all  shares  of  stock  in  such  com- 
pany held  by  the  defendant  in  execution,  which  have  not  at  the  time 
of  the  receipt  of  such  notice  by  said  clerk,  cashier,  or  other  officer, 
who  has  custody  of  the  books  of  registry  of  the  stocks  thereof,  been 
actually  transferred  by  the  defendant;  and  thereafter  any  transfer 
or  sale  of  such  shares  by  the  defendant  in  execution  shall  be  void  as 
against  the  plaintiff  in  said  execution,  or  any  purchaser  of  such  stock 
at  any  sale  thereunder. 
1901,  c.  2.  s.  71. 

1218.  Duty  and  liability  of  nonresident  custodian  of  corporate 

books.  The  nonresident  clerk,  cashier,  or  other  officer  in  such  com- 
pany, to  whom  notice  in  writing  is  sent,  as  prescrilied  in  the  pro- 
ceding  section,   shall  thereupon   send   forthwith,   by  mail   or  other- 

343 


1218  CORPORATIONS— AT/.  Execution.  Ch.  21 

wise,  to  the  officer  baviug  such  writ,  a  statement  of  the  time  when  he 
received  such  notice  and  a  certificate  of  the  number  of  shares  held 
by  the  defendant  in  such  company  at  the  time  of  the  receipt  by  him 
of  such  notice,  not  actually  transferred  on  the  books  of  said  company; 
and  the  said  sheriil,  or  otlier  officer,  shall,  on  receipt  by  him  of  such 
certificate,  insert  the  number  of  such  shares  in  the  inventory  attached 
to  said  writ;  and  if  such  clerk,  cashier,  or  other  officer  in  such  com- 
pany, neglect  to  send  such  certificate  as  aforesaid,  or  if  he  shall  wil- 
fully send  a  false  certificate,  he  shall  be  liable  to  the  plaintiff  for 
double  the  amoimt  of  all  damages  occasioned  by  such  neglect,  or  false 
certificate,  to  be  recovered  in  an  action  against  him;  but  the  neglect 
to  send,  or  miscarriage  of  such  certificate,  shall  not  impair  the  valid- 
ity of  the  levy  upon  the  stock. 
1901,  c.  2,  s.  72. 

XIII.     Receivers. 

1219.  When  appointed.  Whenever  any  corporation  shall  become 
insolvent,  or  shall  suspend  its  ordinary  business  for  want  of  funds  to 
carry  on  the  same,  or  be  in  imminent  danger  of  insolvency,  or  has 
forfeited  its  corporate  rights,  or  its  corporate  existence  shall  have 
expired  by  limitation,  a  receiver  may  be  appointed  by  the  court  under 
the  same  regulations  as  are  provided  by  law  for  the  appointaient 
of  receivers  in  other  cases. 

Code,  s.  6G8;   1901,  c.  2,  s.  73. 
Note.     See  also,  s.  1203. 

1220.  Debts  provided  for,  receiver  discharged.   Whenever  a 

receiver  shall  have  been  appointed,  and  it  shall  afterwards  appear 
that  the  debts  of  the  corporation  have  l>een  paid,  or  provided  for, 
and  that  there  remains,  or  can  be  obtained  by  further  contributions, 
sufficient  capital  to  enable  it  to  resume  its  biisiness,  the  court  may,  in 
its  discretion,  a  proper  case  being  shown,  discharge  the  receiver,  and 
decree  that  its  property,  rights,  franchises  and  effects  shall  revert 
to  the  corporation,  and  thereafter  the  corporation  may  resume  con- 
trol of,  and  enjoy  the  same,  as  fully  as  if  the  receiver  had  never 
been  appointed. 
1901,  e.  2,  s.  70. 

1221.  Reorganization  after  receiver  discharged.    Whenever  a 

majority  in  interest  of  the  stockholders  of  sucli  corporation  shall  have 
agreed  upon  a  plan  for  the  reorganization  of  the  corporation  and  a 
resumption  by  it  of  the  management  and  control  of  its  property 
and  business,  such  corporation  may,  with  the  consent  of  the  court, 
upon  the  reconveyance  to  it  of  its  property  and  franchises,  either  by 
deed  or  decree  of  the  court,  mortgage  the  same  for  such  amount  as 
may  be  necessary  for  the  purposes  of  such  reorganization ;  and  may 


1221  CORPOEATIONS— ZZ/7.     Beceivers.  Ch.  21 

issue  bonds  or  other  evidences  of  indebtedness,  or  additional  stock, 
or  both,  and  use  the  same  for  the  full  or  partial  payment  of  the 
creditors  who  will  accept  the  same,  or  otherwise  dispose  of  the  same 
for  the  purposes  of  the  reorganization. 
1901,  c.  2,  s.  77. 

1222.  Powers  and  bond.  Such  receiver  shall  have  full  power 
and  authority  to  demand,  sue  for,  collect,  receive  and  take  into  his 
possession  all  the  goods  and  chattels,  rights  and  credits,  moneys  and 
effects,  lands  and  tenements,  books,  papers,  choses  in  action,  bills, 
:notes,  and  property  of  every  description  of  the  corporation,  fore- 
close mortgages,  deeds  of  trust  and  other  liens  executed  to  the  cor- 
poration, and  to  institute  suits  for  the  recovery  of  any  estate,  prop- 
erty, damages  or  demands  existing  in  favor  of  the  corporation,  and 
to  appoint  agents  under  him,  and  to  do  all  other  acts  which  might 
be  done  by  such  corporation,  if  in  being,  that  may  be  necessary  for 
the  final  settlement  of  the  unfinished  business  of  the  corporation ; 
and  the  powers  of  such  receiver  may  be  continued  as  long  as  the 
court  shall  think  necessary  for  the  purposes  aforesaid,  and  the 
receiver  shall  have  jjower  to  sell,  convey  and  assign  all  the  said 
estate,  rights  and  interest,  and  shall  hold  and  dispose  of  the  pro- 
ceeds thereof  under  the  direction  of  the  court.  The  word  receiver  as 
used  in  this  chapter  shall  be  constrvied  to  include  receivers  and  trus- 
tees appointed,  as  provided  in  this  chapter.  Every  receiver  shall, 
before  acting,  enter  into  such  bond  and  comply  with  siich  terms  as 
the  court  may  prescribe. 

Code,  s.  GC8;   1901,  c.  2,  s.  74. 

1223.  Majority  may  act;  removal  of;  vacancies.  Every  matter 

and  thing  required  to  be  done  by  receivers  or  trustees  shall  be  good 
and  effectual,  to  all  intents  and  purposes,  if  performed  by  a  majority 
of  them;  and  the  court  may  remove  any  receiver  or  trustee  and 
appoint  another  in  his  place,  or  fill  any  vacancy  which  may  occur. 
1901,  c.  2,  s.  79. 

1224.  Property  to  vest  in.  All  the  real  and  personal  property  of 
an  insolvent  corporation,  wheresoever  situated,  and  all  its  franchises, 
rights,  privileges  and  effects  shall,  upon  the  appointment  of  a 
receiver,  forthwith  vest  in  him,  and  the  corporation  shall  be  divested 
of  the  title  thereto. 

1901,  c.  2,  s.  75. 

1225.  Inventory.  Such  receiver,  within  thirty  days  after  his 
appointment,  shall  lay  before  the  court  a  full  and  complete  inventory 
of  all  estate,  property  and  effects  of  the  corporation,  its  nature 
and  probable  value,  and  an  account  of  all  debts  due  from  and  to  it. 


1225  CORPOEATIONS— Z/77.  Eeceivers.  Ch.  21 

as  nearly  as  the  same  can  be  ascertained,  and  make  a  report  to  the 
sujDerior  court  of  his  proceedings,  at  every  civil  term  thereof  during 
the  continuance  of  the  trust. 
1901,  c.  2,  s.  80. 

1226.  Compensation.  Before  distribution  of  the  assets  of  an 
insolvent  corporation  among  the  creditors  or  stockholders,  the  court 
shall  allow  a  reasonable  compensation  to  the  I'eceiver  for  his  services, 
not  to  exceed  five  per  cent,  upon  receipts  and  disbursements,  and  the 
costs  and  expenses  of  administration  of  his  trust,  and  the  costs  of 
the  proceedings  in  said  court  to  be  first  paid  out  of  said  assets. 

1901,  c.  2.  s.  88. 

1227.  May  send  for  persons  and  papers;  penalty  for  refusing 

to  answer.  Such  receiver  shall  have  power  to  send  for  persons  and 
papers,  and  to  examine  any  persons,  including  the  creditors  and 
claimants,  and  the  president,  directors,  and  other  officers  and  agents 
of  the  corporation,  on  oath  or  affirmation  (which  oath  or  affirmation 
the  receiver  may  administer),  respecting  its  affairs  and  transactions 
and  its  estate,  money,  goods,  chattels,  credits,  notes,  bills,  and  choses 
in  action,  real  and  personal  estate  and  effects  of  every  kind;  and 
also  respecting  its  debts,  obligations,  contracts  and  liabilities,  and  the 
claims  against  it;  and  if  any  person  shall  refuse  to  be  sworn  or 
affirmed,  or  to  make  answers  to  such  questions  as  may  be  put  to 
him,  or  refuse  to  declare  the  whole  truth  touching  the  subject  matter 
of  the  said  examination,  the  court  may,  on  report  of  the  receiver, 
commit  such  person  as  for  contempt. 
1901,  c.  2,  s.  78. 

1228.  Time  limit  for  creditors  to  present  claims.  The  court  may 

limit  the  time  within  which  creditors  shall  present  and  make  proof 
to  such  receiver  of  their  respective  claims  against  the  corporation, 
and  may  bar  all  creditors  and  claimants  failing  so  to  do  within  the 
time  limited  from  participating  in  the  distribution  of  the  assets  of 
the  corporation.  The  court  may  also  ju-escribe  what  notice,  by  pub- 
lication or  otherwise,  shall  be  given  to  creditors  of  such  limitation 
of  time. 

1901,  c.  2,  s.  81. 

1229.  Claims,  how  presented  and  proved;  power  and  duty  of 

receiver.  Every  claim  against  an  insolvent  corporation  shall  be  pre- 
sented to  the  receiver  in  writing;  and  the  claimant,  if  required,  shall 
submit  him.self  to  such  examination  in  relation  to  the  claim  as  the 
receiver  shall  direct,  and  shall  produce  .such  books  and  papers  relating 
to  the  claim  as  shall  be  required ;  and  the  receiver  shall  have  power 
to  examine,  under  oath  or  affirmation,  all  witnesses  produced  before 

346 


1229  COEPOKATIONS— Z//7.  Receivers.  Ch.  21 

him  touching  the  claims,  and  shall  pass  upon  and  allow  or  disallow 
the  claims  or  any  part  thereof,  and  notify  the  claimants  of  his  deter- 
mination. 

1001,  c.  2,  s.  82. 

1230.  Claims  reported  to  court;  exceptions  in  ten  days;  right 

to  jury  trial,   it  shall  be  the  duty  of  such  receiver  to  report  to  the 
'  term  of  the  superior  court  subsequent  to  any  finding  by  him  as  to 
I'any  claim  against  the  corporation,  and  exceptions  thereto  may  be 
filed  by  any  person  interested,  within  ten  days  after  notice  of  such 
'  finding  by  the  Teceiver,  and  not  later  than  within  the  first  three 
days  of  the  said  term;  and  if,  on  any  exception  so  filed,  a  jury  trial 
shall  be  demanded,  it  shall  be  the  duty  of  the  court  to  prepare  a 
pi'o]ier  issue  and  submit  the  same  to  a  jury;  and  if  such  demand  is 
no(  made  in  the  exceptions  to  the  report  the  right  to  a  jury  trial 
shall  be  deemed  to  have  been  waived.     The  judge  may,  in  his  discre- 
tion, extend  the  time  for  filing  such  exceptions. 
1901,  c.  2,  s.  83. 

1231.  May  become  plaintiff  in  pending  actions.  Such  receiver 

shall,  upon  application  by  him,  be  substituted  as  party  plaintiff  or 
complainant  in  the  place  and  stead  of  the  corporation,  in  any  suit  or 
proceeding  which  was  pending  at  the  time  of  his  appointment. 
1901,  e.  2,  s.  84. 

1232.  Property  sold  pending  litigation;  fund  reserved.   When 

the  property  of  an  insolvent  corporation  is  at  the  time  of  the  appoint- 
ment of  a  receiver  incumbered  with  mortgages  or  other  liens,  the 
legality  of  which  is  brought  in  question  and  the  property  is  of  a 
character  materially  to  deteriorate  in  value  pending  the  litigation, 
tlie  court  may  order  the  receiver  to  sell  the  same,  clear  of  inc\un- 
brances,  at  public  or  private  sale,  for  the  best  price  that  can  be 
obtained,  and  pay  the  money  into  the  court,  there  to  remain  subject 
t(i  the  same  liens  and  equities  of  all  parties  in  interest  as  was  the 
]irii]ierty  before  sale,  to  be  disposed  of  as  the  court  shall  direct. 
1901,  c.  2.  s.  86. 

Note.     For  service  of  process,  actions  for  appointment  of  receivers,  see  s.  1199. 
For  bond  before  appointing  receiver,  see  s.  1205. 

XIV.     Taxes  and  Fees. 

1233.  State  taxes;  organization,  amendments,  dissolution,  etc. 

On  filing  any  certificate  or  other  paper,  relative  to  corporations,  in 
the  office  of  the  secretary  of  state,  the  following  taxes  shall  be  paid 
to  the  state  treasurer,  for  the  use  of  the  state:  For  certificates  of 
incorporation,  twenty  cents  for  each  thousand  dollars  of  the  total 


1233  CORPOEATIONS— Z/T'.  Taxes  and  Fees.  Ch.  21 

amount  of  capital  stock  authorized,  but  in  no  case  less  than  twenty- 
five  dollars ;  increase  of  capital  stock,  twenty  cents  for  each  thousand 
dollars  of  the  total  increase  authorized,  but  in  no  case  less  than 
twenty  dollars ;  extension  or  renewal  of  corporate  existence  of  any 
corporation,  the  same  as  required  for  the  original  certificate  of 
organization  by  this  chapter;  change  of  name,  change  of  nature  of 
business,  amended  certificate  of  incorporation  (other  than  those 
authorizing  increase  of  capital  stock),  decrease  of  capital  stock, 
increase  or  decrease  of  par  value  of,  or  number  of,  shares,  twenty 
dollars ;  for  filing  list  of  officers  and  directors,  one  dollar ;  dissolution 
of  corporation,  change  of  princijDal  place  of  business,  five  dollars: 
Provided,  that  no  taxes  shall  be  required  to  be  paid  by  any  benevo- 
lent, religious,  educational,  or  charitable  society  or  association  having 
no  capital  stock;  and  these  taxes  shall  not  be  cumulative,  but  when 
two  or  more  taxes  would  have  been  incurred  at  the  same  time,  the  tax 
for  all  shall  be  the  largest  single  tax. 
1901,  c.  2,  s.  96. 

1234.  Fees  to  secretary  of  state  and  clerk  of  superior  court. 

The  secretary  of  state  shall  collect  and  retain  the  following  fees, 
viz. :  For  recording  the  certificate  of  incorporation  one  dollar,  for  the 
first  three  copy  sheets  and  ten  cents  for  each  copy  sheet  in  excess 
thereof,  and  for  official  seal  fifty  cents ;  for  copying  the  same  fees 
as  for  recording.  There  shall  be  paid  the  clerk  of  the  superior  court 
for  recording  the  certificate  of  incorporation  a  fee  of  three  dollars. 
Code,  s.  680;   1893,  c.  318,  s.  4;   1901,  c.  2,  s.  96. 

1235.  Tax  on  bills  creating  private  corporations;  copy  to  be 
filed  with  secretary  of  state  before  organization.  Every  bill  intro- 
duced in  either  house  of  the  general  assembly  to  incorporate  any 
private  corporation  or  railroad  company,  or  to  amend  the  charter  of 
such  corporation,  shall  be  accompanied  by  a  recei))!  from  the  state 
treasurer,  showing  that  there  has  been  paid  an  organization  tax  in 
double  the  amount  prescribed  for  corporations  organized  under  this 
chapter,  and  in  addition  thereto  each  private  corjioration  (railroad, 
insurance  and  banking  companies  excepted)  shall,  before  its  organi- 
zation, file  and  have  recorded  a  copy  of  the  bill  creating  it  in  the  office 
of  the  secretary  of  state,  and  shall  become  subject  to  tlie  provisions  of 
til  is  chapter. 

1901,  c.  2,  s.  97:  1903,  c.  93;  1905.  o.  168.  s.  ?.. 

1236.  Corporate  property  liable  for  taxes,  though  in  receiver's 

hands.  Wliencvcr  taxes  are  duly  assessed,  eliarged  and  extended 
against  any  corporation  having  chartered  rights,  or  doing  business 
in  this  state,  or  having  property  in  this  state,  or  against  any  person 


1236  CORPORATIONS— Z/7.  Taxes  and  Fees.  Ch.  21 

resident  in  this  state  or  doing  bxisiness,  or  having  property  in  this 
state,  and  the  tax  list  is  in  the  hands  of  any  officer  or  tax  collector, 
it  shall  be  competent  for  such  officer  or  tax  collector,  whenever  said 
taxes,  whether  listed  or  unlisted,  are  due  and  unpaid,  to  levy  upon, 
seize  and  take  into  his  possession  such  part  of  the  property  belonging 
to  such  person  or  corporation  as  may  be  necessary  to  pay  such  taxes 
listed  or  imlisted,  whether  the  property  of  such  corporation  or  per- 
son be  in  the  hands  of  a  receiver  duly  appointed  or  not. 
Code,  s.  699. 

1237.  Tax  collector  need  not  obtain  order  of  court  though 

property   is   in   receiver's   hands.   In   all  cases  provided   for  in  the 

preceding  section,  it  shall  not  be  necessary  for  such  officer  or  tax 
collector  to  apply  and  obtain  from  the  court  appointing  such  receiver, 
or  having  jurisdiction  of  the  property  or  of  the  receiver,  an  order 
for  the  payment  of  such  taxes,  but  the  same  may  be  collected  as  afore- 
said, by  distraint  and  seizure,  as  if  the  property  or  corporation  was 
not  in  the  hands  of  a  receiver.  This  section  and  the  preceding 
section  shall  apply  to  all  taxes,  whether  state,  county,  town,  or  mimici- 
pal ;  and  shall  be  liberally  construed  in  favor  of,  and  in  furtherance 
of,  the  collection  of  said  taxes. 
Code,  s.  700. 

XV.     Reorganization. 

1238.  Corporations  whose  property  and  franchises  sold  under 

order  of  court  or  execution.  Whenever  the  property  and  franchises 
of  a  corporation  shall  be  sold  under  a  judgment  or  decree  of  a  court 
of  this  state,  or  of  the  circuit  court  of  the  United  States,  or  under 
execution,  to  satisfy  a  mortgage  debt  or  other  encumbrance  thereon, 
such  sale  shall  vest  in  the  purchaser  all  the  right,  title,  interest  and 
property  of  the  parties  to  the  action  in  which  such  judgment  or  decree 
was  made,  to  said  property  and  franchises  so  sold,  subject  to  all  the 
conditions,  limitations  and  restrictions  of  said  corporation ;  and  such 
purchaser  and  his  associates,  not  less  than  three  in  number,  shall 
thereupon  become  a  new  corporation,  by  such  name  as  said  persons 
shall  select,  who  shall  be  the  stockholders  in  the  ratio  of  the  pur- 
chase money  by  them  respectively  contributed ;  and  shall  bo  entitled 
to  all  the  rights  and  franchises  and  be  subject  to  all  the  conditions, 
limitations  and  penalties  of  the  said  corporation  whose  property  and 
franchises  shall  have  been  so  sold.  In  the  event  of  the  sale  of  a 
railroad  in  foreclosure  of  a  mortgage  or  deed  of  trust,  whether  under 
a  decree  of  court  or  otherwise,  the  corporation  created  by  or  in  con- 
sequence of  such  sale  shall  succeed  to  all  the  franchises,  rights  and 
privileges  of  said  original  corporation  only  when  such  sale  is  of  all 


1238  CORPOEATIONS— ZF.  Reorganization.  Ch.  21 

the  railroad  o-mied  by  the  company  and  described  in  the  mortgage 
or  deed  of  trust,  and  when  said  railroad  is  sold  as  an  entirety. 
Code,  ss.  697,  COS;  1897,  c.  305;  1901,  c.  2,  s.  99. 

1239.  New  corporators  to  meet  and  organize.  The  persons  for, 

or  on  whose  accoimt,  any  such  property  and  franchises  may  have  been 
purchased,  shall  meet  within  thirty  days  after  the  conveyance  made 
by  virtue  of  said  jiroeess,  or  decree,  shall  have  been  delivered,  written 
notice  of  the  time  and  place  of  said  meeting  having  been  given  to  each 
of  said  several  persons  at  least  ten  days  before  said  meeting,  and 
organize  said  new  corporation. 
1901,  c.  2,  s.  100. 

1240.  Duties  and  powers  at  meeting.  At  such  meeting  the  said 

persons  shall  adoj^t  a  corporate  name  and  corporate  seal,  determine 
the  amount  of  the  capital  stock  of  said  corporation,  and  shall  have 
power  and  authority  to  make  and  issue  certificates  of  stock  in  shares 
of  such  amounts  as  they  shall  see  fit.  The  said  corporation  may  then, 
or  at  any  time  thereafter,  create  and  issue  preferred  stock  to  siich 
an  amount,  and  at  such  time,  as  they  may  deem  necessary. 
1901,  c.  2,  8S.  101,  102. 

1241.  Certificate  to  be  filed  witli  secretary  of  state.  It  shall 

be  the  duty  of  such  new  corporation,  within  one  month  after  its 
organization,  to  make  certificate  thereof,  under  its  common  seal, 
attested  by  the  signature  of  its  president,  specifying  the  date  of  such 
organization,  the  name  so  adopted,  the  amount  of  capital  stock,  and 
the  name  of  its  president  and  directors,  and  transmit  the  said  certifi- 
cate to  the  secretary  of  state,  to  be  filed  and  recorded  in  his  office, 
and  there  remain  of  record ;  and  a  certified  copy  of  such  certificate 
so  filed  shall  be  recorded  in  the  office  of  the  clerk  of  the  superior 
court  of  the  county  in  which  is  located  the  principal  office  of  the  said 
corporation,  and  shall  be  the  charter  and  evidence  of  the  corporate 
existence  of  said  new  corporation:  Provided,  that  nothing  contained 
in  this  chapter  shall  divest,  or  in  any  manner  impair,  the  lien  of 
any  prior  mortgage,  or  other  encumbrance  upon  the  property  or 
franchises,  conveyed  under  the  sale  of  said  property  or  franchise, 
when  by  the  terms  of  the  process  or  decree  under  which  the  sale 
was  made,  or  by  operation  of  law,  the  said  sale  is  made  subject  to 
the  lien  of  any  sucli  prior  mortgage  or  other  encumbrance :  And 
provided,  that  no  such  sale  and  conveyance  or  organization  of  such 
new  corporation  shall  in  anywise  affect  or  impair  any  riglits  of  any 
person,  body  politic  or  corporate,  not  a  party  to  the  action  in  which 
the  aforesaid  decree  was  made,  nor  of  the  said  party,  except  so  far 
as  determined  by  said  decree :  And  provided,  also,  that  when  any 
trustee  shall  be  made  a  party  to  such  action  and  his  cestui  que  trust, 

3.50 


1241  COEPOEATIONS— Z7.  Reorganization.  Ch.   21 

for  any  reason  satisfactory  to  the  court  in  which  the  action  may  be, 
shall  not  be  made  a  party  thereto,  the  rights  and  interest  of  snch 
cestui  que  trust  shall  be  concluded  by  such  decree. 
1901,  c.  2,  s.  103. 

XVI.     Miscellaneous  Pkovisions. 

1242.  Name  of  corporation  to  be  displayed.  The  name  of  every 

cori)oration  shall  be  at  all  times  conspicuously  displayed  at  the 
entrance  of  its  principal  office  in  this  state,  and  in  defaiilt  thereof 
for  sixty  days  the  corporation  shall  be  liable  to  a  penalty  of  one 
hundred  dollars,  to  be  recovered  with  costs,  by  the  state,  in  an  action 
to  be  prosecuted  by  or  under  the  direction  of  the  attorney  general. 

1901,  c.  2,  s.  50. 

1243.  Resident  process  agent  required;  in  absence,  service 

upon  secretary  of  state  sufficient;  fees.  Every  corporation  having 
property  or  doing  business  in  this  state,  whether  incorporated  under 
its  laws  or  not,  shall  have  an  officer  or  agent  in  this  state,  upon  whom 
process  in  all  actions  or  proceedings  against  it  can  be  served ;  and 
any  corporation  failing  to  comply  with  the  provisions  of  this  section 
.'shall  be  liable  to  a  forfeiture  of  its  charter,  or  to  the  revocation  of 
its  license  to  do  business  in  this  state.  In  any  such  case,  process  in 
any  action  or  proceeding  against  such  corporation,  may  be  served 
upon  the  secretary  of  state  by  leaving  a  true  copy  thereof  with  him, 
and  he  shall  mail  the  said  copy  to  the  president,  secretary  or  other 
officer  of  the  corporation,  upon  whom,  if  residing  in  this  state,  service 
could  be  made ;  and  for  the  service  to  be  performed  by  the  said 
secretary,  he  shall  receive  a  fee  of  fifty  cents,  to  be  paid  by  the  party 
at  whose  instance  the  service  is  made. 
1901,  c.  5. 

1244.  Secretary  of  state  to  annually  publish  list  of  corporations 

created.  The  secretary  of  state  shall  annually  compile  from  the 
records  of  his  office,  and  publish  a  complete  list,  in  alphabetical 
order,  of  existing  domestia  corporations  and  of  the  original  and 
amended  certificates  of  incorporation  filed  during  the  preceding  year, 
together  with  the  location  of  the  principal  office  of  each  in  this  state, 
the  name  of  the  agent  in  charge  thereof,  the  amount  of  authorized 
capital  stock,  the  amount  with  which  business  is  to  be  commenced,  the 
amount  issued,  the  date  of  filing  the  certificate,  and  the  period  for 
which  tlie  corporation  is  to  continue. 
1901,  c.  2,  s.  104. 

1245.  Mutual  corporations  may  create  stock.  The  members  of 

any  mutual  corporation  may  provide  for  and  create  a  capital  stock 


1245  COEPOKATIOXS— XF/.  Misc.  Provisions.  Cb.  21 

of  such  corporation,  upon  the  consent  in  writing  of  all  the  members 
of  the  corporation,  and  may  provide  for  the  payment  of  such  stock, 
and  fix  and  prescribe  the  rights  and  privileges  of  the  stockholders 
therein  not  inconsistent  with  law. 
1901,  c.  2,  s.  105. 

1246.  Forfeiture  by  failure  for  two  years  to  organize;  or  after 
organization,  to  act;  duty  of  secretary  of  state  and  attorney  gen- 
eral. When  any  act  shall  have  been  passed,  or  certificate  of  incorpo- 
ration, as  provided  in  this  chapter,  shall  have  been  recorded,  ci'cating 
a  body  corporate,  and  the  corporators  for  two  years  shall  neglect  or 
fail  to  organize  the  company  and  carry  into  effect  the  intent  of  the 
act,  or  when  organized,  if  they  at  any  time  for  two  years  together 
shall  cease  to  act,  then  such  disuse  of  their  corjiorate  privileges  ami 
powers  shall  be  deemed  and  taken  as  a  forfeiture  of  the  charter. 
And  if,  after  thirty  days'  notice  by  the  secretary  of  state,  such  cor- 
poration shall  fail  to  surrender  its  corporate  rights,  or  to  dissolve, 
in  the  manner  provided  in  this  chapter,  the  secretary  of  state  shall 
report  such  corporation  to  the  attorney  general,  who  shall  institute 
an  afipropriate  action  for  the  dissolution  of  such  corporation. 

Code,   s.   088;    1901,   c.   2,   s.    106. 

1247.  Meaning  of  "judge,"  "court,"  etc.  Whenever  the  words 
"court,"  "superior  court,"  or  "judge  of  the  superior  court"  appear 
in  this  chapter,  they  shall  be  construed  to  mean  the  judge  of  the 
superior  court  resident  of  the  district  or  holding  the  courts  by  rota- 
tion, exchange,  or  appointment,  of  the  district  wherein  such  corpor- 
ation may  have  its  principal  place  of  business. 

1901,  c.  2,  s.  111. 

1248.  Amendments  to  certain  charters  validated.  All  amend- 
ments to  the  plan  of  incorporation  of  any  corporation  which  was 
organized  under  the  provisions  of  the  general  laws  of  North  Carolina 
prior  to  the  passage  of  the  act  entitled  "An  act  to  revise  the  corjwra- 
tion  law  of  North  Carolina,"  being  chapter  two,  public  laws  of  one 
thousand  nine  hundred  and  one,  are  hereby  declared  to  be  valid  in  all 
respects,  whether  such  amendments  have  been  made  in  accordance 
with  the  provisions  of  chapter  three  hundred  and  eighty  of  the- public 
laws  of  one  thousand  eight  hundred  and  ninety-three  or  in  accordance 
Avith  the  provisions  of  chai)ter  two  of  public  laws  of  one  thousand 
nine  hundred  and  one ;  but  no  amendment  shall  be  validated  by  tliis 
section  unless  it  is  an  amendment  of  such  natiire  as  is  authorized  to  be 
made  under  the  provisions  of  chapter  two  of  public  laws  of  one  thou- 
sand nine  hundred  and  one. 

1905,  0.  316. 

Note.     See  ss.  1027,  1028. 


Note.     Corporate  bonds  may  be  sold  for  le.ss  than  par,  see  s.  lO.'il. 
.3.-)2 


1249  COSTS— 7.    Generally.  Ch.   22 


CIIAPTEE  22. 
COSTS. 


Sections. 

I. 

Generally, 

1249—12.58 

II. 

State  liable,  when. 

1259—1263 

III. 

Civil  actions  and  proceedings. 

1264—1278 

IV. 

On  appeals, 

1279—1282 

V. 

Lialiility  of  counties,  in  criminal 

actions. 

128.3—1290 

VI. 

Lialiilitv  of  defendant,  in  criniina 

actions, 

1291—1294 

VII. 

The  pro'spcutcr. 

129.5—1297 

VIII. 

Witnesses, 

1298—1.300 

IX. 

Criminal  costs  before  justices, 

T.      Generally. 

1307—1308 

1249.  What  allowed.  To  either  party  for  whom  judgment  shall 
be  given  there  .shall  be  allowed  as  costs  his  actual  disbursemeut.s 
for  fees  to  the  officers,  witnesses,  and  other  persons  entitled  to  recei\'e 
the  same. 

Code.  s.  528. 

1250.  Summary  judgment  for  uncollected.    If  any  officer,  to 

^\•holn  fees  are  payable  by  any  person,  shall  fail  to  receive  them 
at  the  time  the  sen'ice  is  performed,  lie  may  have  judgment  therefor 
on  motion  to  the  coairt  in  which  the  action  is  or  was  pending,  upon 
twenty  days'  notice  to  the  person  to  be  charged,  at  any  time  within 
one  year  after  the  termination  of  the  action  in  which  the  same 
was  performed.  If  the  motion  for  judgment  be  in  behalf  of  the  clerk 
of  the  superior  court,  it  shall  be  made  to  the  judge  of  the  court  in 
or  out  of  term. 

Code,  s.  3760;   1868-9,  c.  279,  s.  '561. 

1251.  Judgment  and  execution  for,  against  sureties  on  prose- 
cution or  appeal  bond.  Whenever  an  action  shall  \y?  brought  in 
any  court  in  which  security  shall  be  given  for  the  prosecution 
thereof,  or  when  any  case  shall  be  brought  up  to  a  cotirt  by  an 
appeal  or  otherwise,  in  which  security  for  the  prosecution  of  the  suit 
shall  have  been  given,  and  judgment  shall  be  rendered  against  the 
]ilaintiff  for  the  costs  of  the  defendant,  the  appellate  cotirt,  itpon 
motion  of  the  defendant,  shall  also  give  jtidgnient  against  the  surety 
for  said  costs,  and  execution  may  issue  jointly  against  the  plaintiff 
and  his  surety. 

Code,  s.  543;   R.  C,  c.  31,  s.   126;   1831,  c.  46. 
Rev.  Vol.  1—19  353 


1252  COSTS— 7.   Generally.  Ch.  22 

1252.  Executions  for,  when  issued;  irregular  if  not  itemized. 

The  clerks  of  the  supreme,  sujierior  and  eriminal  ccnirts,  where  suits 
are  determined  and  the  fees  are  not  paid  by  the  party  from  whom 
they  are  due,  shall  sue  out  executions,  directed  to  the  sheriff  of  any 
county  in  the  state,  who  shall  levy  thera  as  in  other  cases ;  and 
to  the  said  execution  shall  be  annexed  a  bill  of  costs,  written  in 
words,  so  as  plainly  to  show  each  item  of  costs,  and  on  what  account 
it  is  taxed ;  and  all  executions  for  costs,  issuing  without  such  a 
bill  annexed,  shall  be  deemed  irregular,  and  may  be  set  aside  as  to 
the  costs,  at  the  return  term,  at  the  instance  of  him  against  whom  it 
is  issued. 

Code,  s.  37G2;   R.  C,  c.   102,   s.  24. 

1253.  Juror's  tax  fees.  On  every  indictment  or  criminal  pro- 
ceeding, tried  or  otherwise  disposed  of  in  the  superior,  or  crimi- 
nal courts,  the  party  convicted,  or  who  shall  be  adjudged,  to  pay 
the  costs,  shall  pay  a  tax  of  two  dollars.  In  every  civil  action 
in  any  court  of  record,  the  party  who  shall  be  adjudged  to  pay  the 
costs  shall  pay  a  tax  of  three  dollars;  but  this  tax  shall  not  be 
charged  unless  a  jury  shall  be  impaneled.  Said  tax  fees  shall  be 
charged  by  the  clerks  in  the  bill  of  costs,  and  collected  by  the 
sheriff,  and  by  him  paid  into  the  county  treasury.  And  the  fund 
thus  raised  in  any  county  shall  be  set  apart  for  the  payment  of  the 
jurors  attending  the  courts  thereof.  In  Pitt  county  the  jury  tax  shall 
be  five  dollars  in  civil  and  in  criminal  cases. 

Code,  s.  732;  R.  C,  c.  28;  1830,  c.  1:  1870,  c.  32.5:  1881, -e.  2411;  100.-,.  <•.  .348. 

1254.  Criminal,  not  demandable  in  advance,     in  all  cases  of 

criminal  complaints  l)cfiire  justices  of  the  supremo  court,  judges 
of  the  superior  and  criminal  coui'ts,  justices  of  the  ])eace  and  other 
magistrates  having  jurisdiction  of  such  complaints,  the  otficers  enti- 
tled by  law  to  receive  fees  for  issuing  or  executing  process  shall  not 
be  entitled  to  demand  them  in  advance.  Such  officers  shall  indorse 
the  amounts  of  their  respective  fees  on  every  process  issued  or  exi'- 
cuted  by  them,  and  return  the  same  to  the  court  to  which  it  is  return- 
able. 

Cixle,  s.  1173;  1868-9,  c.  178,  siibcli.  3,  s.  40. 

1255.  Clerk  to  insert,  in  entry  of  judgment.    The  clerk  shall 

insert  in  the  entry  of  judgment  the  allowances  for  costs  allowed  by 
law,  and  the  necessary  disbursements,  including  the  fees  of  officers 
and  witnesses,  and  the  reasonable  compensation  of  referees  and  com- 
missioners in  taking  depositions.  The  disbursements  .shall  be  stated 
in  detail.  Whenever  it  shall  be  necessary  to  adjust  costs  in  any 
interlocutory  proceedings,  or  in  any  special   proceedings,   the  same 


1255  COSTS— 7.   Generally.  Ch.   22 

shall  be  adjusted  by  the  clerk  of  the  court  to  which  the  proceedings 
were  returned,  except  in  those  matters  in  which  the  allowance  is 
required  to  be  made  by  the  judge. 
Code,  s.  532. 

1256.  Bills  of  criminal  costs  itemized;  approved  by  solicitor.    It 

shall  be  the  duty  of  the  clerks  of  the  several  courts  of  record,  at  each 
term  of  the  court,  to  make  up  an  itemized  statement  of  the  bill  of 
costs  in  every  criminal  action  tried  or  otherwise  disposed  of  at  said 
term,  which  shall  be  signed  by  the  clerk,  and  approved  by  the 
solicitor. 

Code,  s.  733;   1873-4,  c.   116;    1879,  c.  264. 

1257.  Justices  required  to  itemize  bills  of.  In  all  trials  before 

justices  of  the  ]icace  it  shall  be  lawful  for  plaintiff  or  defendant 
before  pa3^nent  of  costs,  to  demand  of  the  justice  before  whom  a  trial 
is  held  an  itemized  statement  of  costs ;  and  it  shall  be  his  duty  to 
insert  in  the  entry  of  judgment  in  every  criminal  action  tried  or 
otherwise  disposed  of  by  him  a  detailed  statement  of  the  different 
items  of  costs,  and  to  whom  due. 
Code,  s.  734;   1887,  c.  297. 

1258.  Bills  of,  open  to  the  public.  Every  bill  of  costs  shall  at 
all  times  be  open  to  the  inspection  of  any  person  interested  therein. 

Code,   s.  735;    1873-4,   c.   116. 

II.     State  Liable^  When. 

1259.  Civil  actions  by  the  state.  In  all  civil  actions  prosecuted 
in  the  name  of  the  state,  by  an  officer  duly  authorized  for  that  pur- 
pose, the  state  shall  be  liable  for  costs  in  the  same  cases  and  to  the 
same  extent  as  private  parties.  If  a  private  person  be  joined  with 
the  state  as  plaintiff,  he  shall  be  liable  in  the  first  instance  for  the 
defendant's  costs,  which  shall  not  be  recovered  of  the  state  till  after 
execution  issued  therefor  against  such  private  party  and  returned 
unsatisfied. 

Code,  s.  536. 

1260.  Civil  actions  by  and  against  state  officers.  In  all  civil 

actions  dejjending,  or  which  may  be  instituted,  by  any  of  the  officers 
of  the  state,  or  which  have  been,  or  shall  be  instituted  against  them, 
when  any  such  action  is  brought  or  defended  pursuant  to  the  advice 
of  the  attorney  general,  and  the  same  shall  be  decided  against  such 
ofllcers,  the  costs  thereof  shall  be  paid  by  the  state  treasurer  upon 
the  warrant  of  the  auditor  for  the  amount  thereof  as  taxed. 
Code,  s.  3373;  1874-5,  c.  154. 


1201  COSTS—//.  State  Liable,  \Vhen.  Ch.  22 

1261.  Civil  actions  by  state  for  individuals.  In  an  action  prose- 
cuted in  the  name  of  the  state  for  the  recovery  of  money  or  prop- 
erty, or  to  establish  a  right  or  claim  for  the  benefit  of  any  county, 
city,  town,  village,  corporation  or  j^erson,  costs  awarded  against  the 
plaintiff  shall  be  a  charge  against  the  party  for  whose  benetit  the 
action  was  prosecuted,  and  not  against  the  state. 

Code,  s.  537. 

1262.  In  bribery  prosecutions.  The  expenses  which  shall  be 
incurred  by  any  county  in  investigating  and  prosecuting  any  charge 
of  bribery  or  attempt  to  bribe  any  state  officer  or  member  of  the 
general  assembly  within  said  county,  and  of  receiving  bribes  by  any 
state  officer  or  member  of  the  general  assembly  in  said  county,  shall 
be  a  charge  against  the  state,  and  tlie  properly  attested  claim  of  the 
county  commissioners  shall  be  paid  by  the  treasurer  of  the  state. 

Code,  s.   742;    18G8-9,  e.   176,  s.  6;    1874-5,  c.   5. 

1263.  On  appeal  by  state  to  supreme  court  of  United  States. 

In  all  cases,  whether  civil  or  criminal,  to  which  the  state  of  Nortli 
Carolina  is  a  party,  and  which  may  be  carried  from  the  courts  of 
this  state,  or  from  the  circuit  court  of  the  United  States,  by  appeal 
or  writ  of  error,  to  the  United  States  circuit  court  of  aiipeals,  or  to 
the  suprenxe  court  of  the  United  States,  and  the  state  sliall  be  ail- 
judged  to  ]3ay  the  costs,  it  shall  be  the  duty  of  the  attorney  general 
to  certify  the  amoimt  of  such  costs  to  the  auditor,  who  shall  there- 
upon issue  a  warrant  for  the  same,  directed  to  the  treasurer,  \\\\o 
shall  pay  the  same  out  (if  any  moneys  in  the  treasury  not  ntherwisc 
appropriated. 

Code,  s.  538;  1871-2,  c.  2G. 

III.     Civil  Actions  and  Proceedings. 

1264.  When  allowed  plaintiff;  when  limited  by  amount  of  recov- 
ery. Ciists  sliall  be  allowed  of  course  to  the  plaintiff,  upon  a  recov- 
ery, in  the  following  cases : 

1.  In  an  action  for  the  recovery  of  real  ])roperty,  or  when  a  claim 
of  title  to  real  property  arises  on  the  ])leadings,  or  is  certified  by  the 
court  to  have  come  in  question  at  the  trial. 

2.  In  an  action  to  recover  the  possession  of  personal  pro])erty. 

3.  In  actions  of  which  a  court  of  a  justice  of  the  peace  lias  no 
jurisdiction  unless  otherwise  provided  by  law. 

4.  In  an  action  for  a.ssault,  battery,  false  imprisonment,  libel, 
slander,  malicious  prosecution,  criminal  conversation  or  seduction, 
if  the  plaintiff  recovers  less  than  fifty  dollars  damages,  he  shall 
recover  no  more  costs  than  damages. 

356 


12G4  COSTS—///.   Civil  Actions.  Ch.  22 

5.  When  several  actions  shall  be  brought  on  one  bond,  recogni- 
zance, promissory  note,  bill  of  exchange  or  instrument  in  writing,  or 
in  any  other  case,  for  the  same  canse  of  action  against  several  pai'ties 
who  might  have  been  joined  as  defendants  in  the  same  action,  no 
costs  other  than  disbursements  shall  be  allowed  to  the  plaintiff  in 
more  than  one  of  such  actions,  which  shall  be  at  his  election,  pro- 
vided the  party  or  parties  proceeded  against  in  such  other  action  or 
actions  shall  have  been  within  the  state  and  not  secreted  at  the  com- 
mencement of  the  previous  action  or  actions. 

Code,  s.  525;   1874-5,  e.  119;  R.  C,  c.  31,  s.  78. 

1265.  When  allowed  pauper  plaintiff.  Whenever  any  person  shall 
sue  as  a  pauper,  mi  olticcr  shall  rctpiire  of  him  any  fee,  and  he  shall 
recover  no  costs,  except  in  case  of  recovery  by  him. 

Code,  s.  212;  1895,  e.  149;  1868-9,  c.  96,  s.  3. 

1266.  When  allowed  defendant.  Costs  shall  be  allowed  as  of 
(•"ursc  to  the  defendant,  in  the  actions  mentioned  in  section  one  thou- 
sand two  hundred  and  sixty-four,  unless  the  plaintiff  be  entitled  to 
I'dsts  therein.  In  all  actions  where  there  are  several  defendants  not 
united  in  interest,  and  making  separate  defenses  by  separate  answers, 
and  the  plaintiff  fails  to  recover  pidg-ment  a^'ainst  all,  the  court  may 
award  costs  to  such  of  the  defendants  as  have  judgment  in  their  favor 
or  any  of  them. 

Code,  ss.  526,  527;   C.  C.  P.,  s.  277. 

1267.  Discretionary  in  other  actions.  In  other  actions,  costs  may 

be  allowed  or  not,  in  the  discretion  of  the  court,  unless  otherwise 
provided  by  law. 

Code,  s.  527. 

1268.  When  in  discretion  of  the  court.  Costs  in  the  following 

matters  shall  be  taxed  against  either  party,  or  apportioned  among 
the  parties,  in  the  discretion  of  the  court : 

1.  Application  for  year's  support,  for  widow  or  children. 

2.  Caveats  to  wills. 

3.  Habeas  corpus ;  and  the  court  shall  direct  what  officer  shall  tax 
the  costs  thereof. 

4.  In  actions  for  divorce  or  alimony;  and  the  court  may  both 
before  and  after  judgment  make  such  order  respecting  the  payment 
of  such  costs  as  may  be  incurred  by  the  wife,  either  by  the  husband 
or  by  her  from  her  separate  estate  as  may  be  just. 

5.  Application  for  the  establishment,  alteration  or  discontinuance 
of  a  ]iu]ilic  road,  cartway  or  ferry.  The  board  of  road  su])ervisors 
or  board  of  county  commissioners  may  order  the  costs  incurred 
before  them  paid  in  their  discretion. 

6.  The  compensation  of  referees  and  commissioners  to  take  depo- 
sitions. 

357 


1268  COSTS—///.   Civil  Actions.  Ch.  22 

7.  All  costs  and  expenses  incurred  in  special  proceedings  for  the 
division  or  sale  of  either  real  estate  or  personal  property  under  the 
chapter  entitled  Partition. 

8.  In  all  proceedings  under  the  chapter  entitled  I)rainiiig  Low- 
lands, except  as  therein  otherwise  provided. 

9.  In  proceedings  under  section  six  hundred  and  ninety-one. 

Code,  ss.  2134,  2161,  1660,  1294.  2039,  2056,  533,  1422,  1323;  1889,  c.  37;  1893, 
c.  149,  s.  6. 

Note.     See  ss.  54.  58,  339,  407. 

1269.  Petitioner  pays,  when.  The  petitioner  shall  pay  the  costs 
in  the  following  proceedings : 

1.  In  petitions  for  draining  or  damming  lowlands. 

2.  In  petitions  for  condemnation  of  Avater  mill  sites  when  the 
petitioner  is  alloM'ed  to  erect  the  mill ;  but  when  he  is  not  allowed 
to  erect  the  mill,  the  costs  shall  be  paid  by  the  person  who  is  allowed 
to  do  so. 

3.  In  petitions  for  condemnation  of  land  for  railroads,  street  rail- 
ways, telegraph,  telephone  or  electric  power  or  light  companies,  or 
for  water  supplies  for  public  institutions,  or  for  the  use  of  other 
quasi-public  or  municipal  corporations ;  unless  in  tlie  opinion  of  the 
superior  court  the  defendant  improperly  refused  the  privilege,  use 
or  easement  demanded,  in  which  case  the  costs  must  be  adjudged 
as  to  the  court  may  appear  equitable  and  just. 

4.  When  the  petition  is  refused. 

Code,   ss.    1290,    1855,   2013;    1893,   e.   63;    1903,   c.   .562. 

1270.  Defendant  pays,  unreasonably  defending  action  after 

notice,  no  personal  claim.  In  case  of  a  defendant,  against  whom 
no  personal  claim  is  made,  the  plaintiff  may  deliver  to  such  defendant 
with  the  summons,  a  notice  subscribed  by  the  plaintiif  or  his  attorney, 
setting  forth  the  general  object  of  the  action,  a  brief  description  of 
the  property  affected  by  it,  if  it  affects  real  or  personal  property, 
and  that  no  personal  claim  is  made  against  such  defendant.  If  a 
defendant  on  Avhom  such  notice  is  served  unreasonably  defends  tlie 
action,  he  shall  pay  costs  to  the  plaintiff. 
Code,  s.  210. 

1271.  None  allowed  to  party  suing  on  usurious  contract.  Xo 

costs  shall  be  recovered  by  any  party,  wdiether  plaintiff  or  defendant, 
who  may  endeavor  to  recover  upon  any  usurious  contract. 

1895,  c.  69. 

Note.     See  ss.  1950,  1951. 

1272.  In  special  proceedings.  The  costs  in  special  proceedings 
shall  be  as  allowed  in  civil  actions,  unless  otherwise  specially  pro- 
vided. 

Code,  s.  541. 

358 


1273  COSTS—///.   Civil  Actions.  Ch.  22 

1273.  Allowed  in  supplemental  proceedings.  The  court  or  judge 

may  allow  to  the  judgment  creditor,  ur  to  any  party  examined  in 
proceedings  supplemental  to  execution,  whether  a  party  to  the  action 
or  not,  witnesses'  fees  and  disbursements. 
Code,  s.  499;  C.  C.  P.,  s.  273. 

1274.  Laying  off  homestead  and  exemptions.   The  costs  and 

expenses  of  appraising  and  laying  oii'  the  homestead  or  personal 
property  exemptions,  when  the  same  is  made  under  execution,  shall 
be  charged  and  included  in  the  officer's  bill  of  fees  upon  such  execu- 
tion or  other  final  process;  and  when  made  upon  the  petition  of  the 
owner,  they  shall  be  paid  by  such  owner,  and  the  latter  costs  shall 
be  a  lien  on  said  homestead. 
Code,  s.  510. 

1275.  On  re-assessment  of  homestead.  If  the  superior  court 

at  term  shall  confirm  the  appraisal  or  assessment,  or  shall  increase 
the  exemption  allowed  the  debtor  or  claimant,  the  levy  shall  stand 
only  upon  the  excess  remaining,  and  the  creditor  shall  pay  all  the 
costs  of  the  proceeding  in  court.  If  the  amount  allowed  the  debtor 
or  claimant  shall  be  reduced,  the  costs  of  the  proceeding  in  court  shall 
be  paid  by  the  debtor  or  claimant,  and  the  levy  shall  cover  the  excess 
then  remaining. 

Code,  s.  521. 

1276.  Against  infant  plaintiff,  guardian  responsible.  When  costs 

are  adjudged  against  an  infant  plaintiff,  the  guardian  by  whom  he 
appeai'ed  in  the  action  shall  be  responsible  therefor. 
Code,  s.  534. 

1277.  Actions  by  or  against  executors,  trustees  or  persons 

authorized  by  statute,  in  an  action  prosecuted  or  defended  by  an 
executor,  administrator,  trustee  of  an  express  trust,  or  a  person 
expressly  authorized  by  statute,  costs  shall  be  recovered  as  in  an 
action  by  and  against  a  person  prosecuting  or  defending-  in  his  own 
right;  but  such  ccsts  shall  be  chargeable  only  upon  or  collected  out 
of  the  estate,  fund  or  party  represented,  unless  the  court  shall  direct 
the  same  to  be  paid  by  the  plaintiff  or  defendant,  personally,  for 
mismanagement  or  bad  faith  in  such  action  or  defense.  And  when- 
ever any  claim  against  a  deceased  person  shall  be  referred,  the  pre- 
vailing party  shall  be  entitled  to  recover  the  fees  of  referees  and 
witnesses,  and  other  necessary  disbursements,  to  be  taxed  according 
to  law. 

Code,  s.  535. 

Note.     See  ss.  92,  97,  1799. 


1278  COSTS—///.   Ciril  Actions.  Cli.  22 

1278.  Assignee  after  action  brought,  liable  for.   In  actions  in 

whic'h  the  cause  of  action  shall  bocduie  bv  assignment  after  the  com- 
mencement of  the  action,  or  in  any  other  manner,  the  property  of 
a  person  not  a  party  to  the  action,  such  person  shall  be  liable  for  the 
costs  in  the  same  manner  as  if  he  were  a  party. 
Code,  s.  539. 

IV.     On  Appeals. 

1279.  Generally.  On  an  ajipeal  from  a  justice  of  the  peace  to  a 
superior  court,  or  from  a  superior  court  or  a  judge  thereof,  to  the 
supreme  court,  if  the  appellant  shall  recover  judgment  in  the  appel- 
late court,  he  shall  recover  the  costs  of  the  appellate  court  and  those 
he  ought  to  have  recovered  below,  had  the  judgment  of  that  court 
been  correct,  and  also  restitution  of  any  costs  of  the  court  aj)- 
pealed  from  which  he  shall  have  paid  under  the  erroneous  judg- 
ment of  such  court.  If  in  any  coiirt  of  appeal  there  shall  be  judg- 
ment for  a  new  trial,  or  for  a  new  jury,  or  if  the  judgment  ap]iealed 
from  be  not  wholly  i-eversed,  but  partly  affirmed  and  partly  dis- 
affirmed, the  costs  shall  be  in  the  discretion  of  the  appellate  court. 

Code.  s.  540. 

1280.  Of  transcript  on  appeal  taxed  in  supreme  court.  When- 
ever an  ajipeal  is  taken  from  the  sujiorinr  court  to  the  su]irenu'  court 
the  clerk  of  the  sui)erior  court,  when  he  sends  up  the  transcri]it,  shall 
send  therewith  an  itemized  statement  of  the  costs  of  making  up  the 
transcript  on  appeal,  and  the  costs  thereof  shall  be  taxed  as  a  ])art  of 
the  costs  of  the  su])reme  court. 

1905.  c.  4.56. 

1281.  From  justices  of  the  peace.  .Vftcr  an  aiijical  from  the 
judgment  of  a  justice  of  the  peace  shall  be  filed  with  a  clerk  of  a 
su])erior  court,  the  costs  in  all  subsequent  stages  shall  be  as  herein 
provided  for  actions  originally  brought  to  the  superior  court. 

Code,  s.  542. 

1282.  Not  allowed  plaintiff  unless  his  recovery  is  greater  than 

before  justice,  if  on  apjieal  from  a  justice  of  the  peace  judgment 
be  entered  for  the  plaintiff,  and  he  shall  not  recover  on  his  a]ipeal 
a  greater  sum  than  was  recovered  before  the  justice,  besides  interest 
accrued  since  the  rendition  of  the  judgment,  he  shall  not  recover  the 
costs  of  the  appeal,  but  shall  be  liable  at  the  discretion  of  the  court 
to  pay  the  same. 

Code,  s.  500;   Yi.  C,  c.  31,  s.   100;    1704,  c.   414,  s.    17. 


13S3  COSTS— T'.   Counties  in.  Crimiual  Actions.  Ch.   2l' 

V.     Liability   of   Counties   in    Cieiminal   Actions. 

1283.  County  pays,  when.  If  there  be  no  prosecutor  in  a  crimi- 
nal auticin,  and  the  tlefendant  shall  be  acquitted,  or  convicted  and 
unable  to  pay  the  costs,  or  serves  out  a  sentence  on  the  public  roads  of 
^>ew  Hanover  county,  or  a  nolle  prosequi  be  entered,  or  judgment 
arrested,  the  county  shall  pay  the  clerks,  sheriffs,  constables,  justices 
and  witnesses  one-half  their  lawful  fees  only ;  except  in  capital 
felonies  and  in  jirosecutions  for  forgery,  perjury  and  conspiracy, 
when  they  shall  receive  fuJl  fees.  And  in  the  following  counties 
the  county  shall  pay  one-half  their  lawful  fees,  when  ''not  a  true 
bill"  is  found :  Bertie,  Brunswick,  Caswell,  Catawba,  Chatham, 
Clay,  Craven,  Davie,  Duplin,  Gaston,  Granville,  Greene,  Plenderson, 
Iredell,  Jackson,  Johnston,  Jones,  Lenoir,  Madison,  McDowell,  Meck- 
lenburg, Montgomery,  I'^orthampton,  Onslow,  Orange,  Pamlico,  Pen- 
der, Pitt,  Richmond,  Rowan,  Rutherford,  Sampson,  Stanly,  Stokes, 
Surry,  Swain,  Transylvania,  Wake,  Wilkes  and  Yadkin.  And  no 
county  shall  pay  any  such  costs,  unless  the  same  shall  have  been 
approved,  audited  and  adjudged  against  the  county  as  provided  in 
this  chapter.  All  Avitnesses  subpoenaed  by  order  of  court  to  appear 
before  the  grand  jury  in  Martin  county,  and  who  do  attend,  and  all 
other  witnesses  who  may  testify  in  open  court  on  the  part  of  the  state, 
shall  be  allowed  to  prove  attendance  and  collect  one-half  fees.  In 
the  counties  of  Brunswick  and  Catawba  the  county  shall  not  he  liable 
for  any  part  of  the  costs  of  justices  of  the  peace. 

Code,\s.  73.3,  739;  1901,  cc.  7i5,  76.5;  1903,  cc.  .57.  73,  288,  298.  581 :  190.5.  c. 
1.34,  s.  3;  1905,  ce.  203,  324,  362,  370.  375.  511.  .598;  R.  C.  c.  28.  s.  8 ;  R.  S..  c.  28,  s. 
12;  1874-5,  c.  247. 

1284.  County  liable  in  supreme  court,  when.   If  on  appeal  to 

the  supreme  court  in  criminal  actions  the  defendant  is  successful, 
the  county  from  which  the  appeal  was  taken  shall  pay  one-half  the 
costs  of  the  appeal,  and  all  such  sums  as  have  been  properly  expended 
by  the  defendant  for  the  transcript  of  the  record  and  printing  done 
under  the  rules  of  the  court. 

1285.  County  where  offense  committed  to  pay  costs;  if  not 

paid,  prisoner  returned,  in  all  cases  where  tin-  county  is  lial)le  to 
pay  costs,  that  county  wherein  the  offense  is  alleged  to  have  been 
committed  shall  be  adjudged  to  pay  them.  The  costs  taxed  in  any 
case  removed  from  another  county  for  trial  shall  include  the  fees 
and  expenses  allowed  for  summoning  the  special  venire,  if  one  is 
ordered  in  the  case,  and  the  per  diem  and  mileage  of  jurors  who  are 
empaneled  to  try  the  case,  together  with  all  other  costs  and  expenses 
of  the  trial  of  the  case,  the  ainoiuit  of  which,  if  not  provided  for  by 
law,  to  be  fixed  by  the  presiding  judge,  so  as  to  fully  relieve  the 


1285  COSTS— F.   Counties  in  Criminal  Actions.  Ch.  22 

county  in  which  the  trial  is  had  of  all  costs  and  expenses  thereof. 
All  fines,  forfeitures,  penalties  and  amercements  imposed  or  levied 
in  the  case  shall  belong  to  the  county  from  which  the  case  was 
removed  and  be  paid  to  the  treasurer  of  said  county.  When  a  pris- 
oner is  sent  from  one  county  to  another  to  be  held  for  trial,  or  for 
any  other  cause  or  purpose,  the  county  from  which  he  is  sent  shall 
pay  his  prison  expenses,  unless  the  same  shall  be  collected  from  him 
on  or  before  the  first  Monday  in  each  month,  and  upon  a  failure  to 
do  so,  it  shall  be  the  duty  of  the  county  to  which  he  is  sent  to  pay 
the  same  to  the  sheriff  or  jailer  entitled  to  receive  it  at  the  same 
rate  and  under  the  same  regulations  as  its  own  prison  expenses  are 
paid;  and  the  coimty  liable  shall  repay  the  same  within  thirty 
days  after  denumd,  and  upon  failing  to  do  so  the  county  to 
which  the  money  is  due  shall  be  entitled  to  recover  in  the  su])erior 
court,  or,  if  the  amount  be  within  its  jurisdiction,  the  coiirt  of  just- 
ices of  the  peace  of  its  own  county,  the  amount  due,  with  ten  per 
cent,  additional,  together  with  eight  per  cent,  interest  on  the  sum 
due ;  and  said  courts  of  said  county  shall  have  full  jurisdiction  to 
hear,  try  and  determine  all  actions  and  proceedings  that  may  be 
brought  for  the  purpose  of  enforcing  the  collection  of  the  same: 
Provided,  that  when  the  county  to  which  such  prisoner  has  been 
sent  has  paid  the  prison  expenses  and  has  made  demand  therefor 
upon  the  county  liable  as  above  provided  and  such  demand  be  not 
complied  with  within  ten  days,  the  sheriff  or  jailer  shall  at  once 
return  such  prisoner  to  the  county  from  which  such  prisoner  was 
sent,  and  deliver  him  to  the  sheriff  or  jailer  thereof. 
1889,  e.  354;   1901,  c.  718. 

1286.  Statement  of,  chargeable  to  county,  filed  with  commis- 
sioners. In  all  criminal  actions  M-herc  the  county  is  liable  in  whole 
or  in  part  for  costs,  it  shall  be  the  duty  of  the  clerks  of  the  courts 
to  make  out  a  statement  of  such  costs  from  the  record  or  docket, 
within  thirty  days  after  the  hearing,  trial,  determination,  or  other 
disposition  thereof,  and  file  the  same  with  the  board  of  commission- 
ers of  the  county. 

Code,  s.  736;   1873-4,  c.   116,  s.  3. 

1287.  Expense  incurred  in  going  after  prisoner,  how  paid. 

When  a  sheriff  or  utlicr  (ithccr  sliall  arrcsl  a  |K'r-iiii  unil(>r  a  capias 
or  otlier  legal  proce-ss,  which  requires  liim  to  have  tlie  jicrson  arrested 
before  a  cf>urt  or  judge  of  aaiothcr  county,  and  sucli  sheriff  or  other 
officer  shall  be  obliged  to  incur  expense  in  the  safe  delivery  of  such 
person  by  reason  of  his  failing  to  give  bond  for  his  appearance,  or 
if  the  sheriff  or  other  officer  of  the  county  to  which  the  prisoner  is  to 
be  carried  shall  incur  any  expense  in  going  for  and  conveying  said 


1287  COSTS — V.   Counties  in  Criminal  Actions.  Ch.   22 

prisoner  to  his  county,  then  in  either  case,  the  sheriff  or  other  officer 
shall  file  with  the  court  or  judge  issuing  the  capias  or  other  legal 
process  and  with  the  register  of  deeds  an  itemized  and  sworn  accoiint 
of  such  expenses,  which  shall  be  presented  by  the  register  to  the  board 
of  commissioners  at  their  next  regular  meeting  to  be  audited  by  them. 
Such  sworn  statement  shall  be  received  by  the  said  board  as  prima 
facie  correct.  Upon  such  auditing  the  board  of  commissioners  shall 
cause  to  be  issued  to  such  sheriff  or  other  officer  an  order  on  the 
county  treasurer  for  the  amount  so  audited  and  allowed  by  them, 
and  shall  notify  the  court  or  judge  of  their  action,  to  the  end  that 
the  amount  so  allowed  shall  be  taxed  in  the  costs  to  the  use  of  the 
county. 

1885,  c.  262;    1901,  c.  64. 

1288.  LynchingS,  costs  of  investigation.  In  all  cases  of  investi- 
gation and  trial  of  the  crime  of  lynching,  the  entire  cost  incurred  in 
the  proseciition,  unless  paid  by  the  person  or  persons  convicted,  shall 
be  paid  by  the  county  wherein  the  crime  shall  have  been  committed. 
And  whenever  any  solicitor  goes  to  a  county  to  investigate  a  crime 
of  breaJving'  or  entjcring  a  jail  for  the  purpose  of  lynching,  the  county 
where  such  crime  is  committed  shall  pay  the  solicitor  the  sum  of 
one  hundred  dollars  for  making  the  investigation. 

ISflS,  c.  461,  s.  6. 

1289.  When  county  pays  state's  witnesses.  Witnesses  sum- 
moned or  recognized  on  behalf  nf  the  state  to  attend  on  any  crimi- 
nal prosecution  in  the  siiperior  or  criminal  courts  where  the  defend- 
ant is  insolvent,  or  by  law  shall  not  be  bound  to  pay  the  same, 
and  the  court  does  not  order  them  to  be  paid  by  the  prosecutor, 
shall  be  paid  by  the  county  in  which  the  prosecution  was  commenced. 
And  in  all  cases  wherein  witnesses  may  be  summoned  or  recognized 
lo  attend  any  such  court  to  give  evidence  in  behalf  of  the  state, 
and  the  defendant  shall  be  discharged,  and  in  cases  where  the  defend- 
ant shall  break  jail  and  shall  not  afterwards  be  fetaken,  the  court 
shall  order  the  witnesses  to  be  paid. 

Code,  s.  740;  R.  C,  c.  28,  s.  9;  1804,  c.  665;  1819,  e.  1008;  1824,  c.  1253. 

1290.  When  county  pays  defendant's  witnesses.    When  the 

defendant  shall  be  acquitted,  a  nolle  prosequi  entered,  or  judgment 
iigainst  him  arrested,  and  it  shall  be  made  to  appear  to  the  court, 
liy  certificate  of  counsel  or  othenvise,  that  said  defendant  had  wit- 
nesses, duly  subpoenaed,  boiind  or  recognized,  in  attendance,  and  that 
they  were  necessary  for  his  defense,  it  shall  be  the  duty  of  the  court, 
unless  the  prosecutor  be  adjudged  to  pay  the  costs,  to  make  and  file 
an  order  in  the  cause  directing  that  said  witness  be  paid  by  the 


1290  COSTS— T'.   CoiinUcs  in  Crimiiml  Actionf:.  Ch.  22 

coimty  in  such  manner  and  to  such  extent  as  is  authorized  by  law  for 
the  payment  of  state's  witnesses  in  like  cases. 
Code,  s.  747;   1879,  c.  20-1;   1881,  e.  312. 

VI.     Liability  of  Defexdant  ix  Crimixal  Actions. 

1291.  When  defendant  pays.  Every  person  convicted  of  ail 
offense,  or  confessing  himself  guilty,  or  submitting  to  the  court,  shall 
pay  the  costs  of  prosecution. 

Code,  s.  1211;  R.  C,  e.  35,  s.  46. 

1292.  Defendant  imprisoned,  detained  until  cost  paid.   If  the 

sentence  be  that  the  guilty  person  be  imprisoned  fur  a  time  certain, 
and  that  he  pay  the  costs,  there  shall  be  added  to  it  that  he  shall 
remain  in  j^rison  after  the  expiration  of  the  fixed  time  for  his 
imprisonment  until  the  costs  shall  be  paid,  or  until  he  shall  other- 
wise be  discharged  according  to  law. 

Code,  s.  905;    18G8-9,  c.   178. 

1293.  Confession  of  judgments  to  secure  fine  and  cost,    in 

cases  where  a  court,  mayor  or  a  justice  of  the  peace  permits  a 
defendant  convicted  of  any  criminal  offense,  to  give  bond  or  confess 
judgment,  with  sureties  to  secure  the  fine  and  costs  which  may  be 
imposed,  the  acceptance  of  such  security  shall  be  upon  the  condition 
that  it  shall  not  operate  as  a  discharge  of  the  original  judgment 
against  the  defendant  nor  as  a  discharge  of  his  person  from  the 
custody  of  the  law  until  the  fine  and  costs  are  paid. 
Code,  s.  749;   1885,  c.  364;    1879,  c.  264. 

1294.  Defendant  failing  to  pay,  may  be  arrested,   in  default 

of  payment  of  such  fine  and  costs,  it  shall  bo  the  duty  of  the  court 
at  any  subsequent  term  thereof  on  motion  of  the  solicitor  of  the  state 
to  order  a  capias  to  issue  to  the  end  that  such  defendant  may  be  again 
arrested  and  held  for  the  fine  and  costs  until  discharged  according 
to  law;  and  a  justice  of  the  peace  or  mayor  may  at  any  subsequent 
time  arrest  the  defendant  and  hold  him  for  the  fine  and  costs  until 
discharged   according  to   law. 

Code,  s.   750;    1885,  c.   304;    1879,  c.   204. 

VII.     The  Peosecutoi!. 

1295.  Who  is  prosecutor;  when  pays  costs.    In  all  criiniiuii 

actions,  if  the  defendant  be  acquitted,  nolle  prosequi  entered,  judg- 
ment against  him  arrested,  or  if  the  defendant  sliall  be  disclmrged 
from  arrest  for  want  of  probable  cause,  the  costs,  including  the  fees 
of  all  witnesses  summoned  for  the  accused,  whom  the  judge,  court 


121)5  COSTS— 177.  The  Frosccutoi:  Ch.   22 

or  justice  of  the  peace  before  whom  the  trial  took  place  shall  certify 
to  have  been  proper  for  the  defense,  shall  be  paid  by  the  prosecutor, 
whether  marked  on  the  bill  or  warrant  or  not,  whenever  the  judge, 
court  or  justice  shall  be  of  ojiinion  that  there  was  not  reasonable 
ground  for  the  prosecution,  or  that  it  was  not  required  by  the  j:)ublie 
interest.  And  every  judge,  court  or  justice  is  hereby  fully  author- 
ized to  determine  who  the  prosecutor  is  at  any  stage  of  a  criminal 
proceeding,  whether  before  or  after  the  bill  of  indictment  shall  have 
laeen  found,  or  the  defendant  acquitted :  Provided,  that  no  person 
shall  be  made  a  prosecutor  after  the  finding  of  the  bill,  unless  he  shall 
have  been  notified  to  show  cause  why  he  should  not  be  made  the 
jirosecutor  of  record. 

Code,  s.  737;  1889,  c.  34;  R.  C,  c.  35,  s.  37;  1799,  c.  4,  s.  19;  1800,  c.  558; 
1868-9,  c.  277;  1874-.5,  c.    151;  1S79,  c.  49. 

1296.  Pay  of  witnesses  in  criminal  cases.  All  witnesses  sum- 
moned or  recognized  in  behalf  of  the  state  shall  be  allowed  the  same 
pay  for  their  daily  attendance,  ferriage  and  mileage  as  is  allowed  to 
witnesses  attending  in  civil  suits ;  and  such  fees  for  attendance  shall 
be  paid  by  the  defendant,  only  upon  conviction,  confession  or  .sub- 
mission ;  and  if  the  defendant  be  acquitted  on  any  charge  of  an  infe- 
rior nature,  or  a  nolle  prosequi  be  entered  thereto,  the  coiirt  shall 
order  the  prosecutor  to  pay  the  costs,  if  such  prosecution  shall  appear 
to  have  been  frivolous  or  malicious ;  but  if  the  court  shall  be  of  opin- 
ion that  such  prosecution  was  neither  frivolous  nor  malicious,  and  a 
greater  nimiber  of  witnesses  have  been  summoned  than  were,  in  the 
opinion  of  the  court,  necessary  to  support  the  charge,  the  court  may, 
nevertheless,  order  the  prosecutor  to  pay  the  attendance  of  such 
unnecessary  witnesses,  if  it  appear  that  they  were  summoned  at  his 
special  request. 

Code,  s.  1204;  R.  C,  c.  35,  .s.  37;  1800,  c.  558,  s.  1;  1879,  c.  49;  1879,  c.  92, 
s.  3;  1881,  c.  176. 

1297.  When  imprisoned  for.  Every  such  prosecutor  may  be 
adjudged  not  only  to  pay  the  costs,  but  he  shall  also  be  imprisoned 
for  the  nonpayment  thereof,  when  the  judge,  court,  or  justice  of 
the  peace  before  whom  the  case  was  tried  shall  adjudge  that  the  prose- 
cution was  frivolous  or  malicious. 

Code,  s.  738;  R.  C,  c.  35,  s.  37;   1800,  c.  558;   1879,  c.  49;   1881,  c.  176. 

VIII.     Witnesses. 

1298.  Not  entitled  to,  in  advance.  Witnesses  are  not  entitled  to 
receive  their  fees  in  advance ;  but  no  witness  in  a  civil  action  or 
special  proceeding,  unless  .summoned  on  behalf  of  the  state  or  a 
municipal  corporation,  shall  be  compelled  to  attend  more  than  one 


1298  COSTS— T//Z.   Witnesses.  Cli.  22 

day,  if  the  party  by  or  for  whom  he  was  summoned,  shall,  after  one 
day's  attendance,  on  request  and  presentation  of  a  certificate,  fail  or 
refuse  to  pay  what  then  may  be  due,  for  traveling  to  the  place  of 
examination,  and  for  the  number  of  days  of  attendance. 

Code,  s.  1308;   1868-0,  c.  279,  subsec.  11,  s.  3. 

1299.  Must  prove  attendance;  may  recover  therefor.    Every 

person  summoned,  who  shall  attend  as  a  witness  in  any  suit;  shall, 
before  the  clerk  of  the  court,  or  before  the  referee  or  officer  taking 
the  testimony,  ascertain  by  his  own  oath  or  affirmation  the  sum  due 
for  traveling  to  and  from  court,  attendance  and  ferriage,  which  shall 
be  certified  by  the  clerk;  and  on  failure  of  the  party,  at  whose 
instance  such  witness  was  suirunoned  (witnessing  for  the  state  and 
municipal  corporations  excepted),  to  pay  the  same  previous  to  the 
departure  of  the  witness  from  court,  .such  witness  may  at  any  time 
sue  for  and  recover  the  same  from  the  party  summoning  him ;  and 
the  certificate  of  the  clerk  .shall  be  sufficient  evidence  of  the  debt. 
Where  recovery  may  be  had  before  a  justice  of  the  peace  on  a  wit- 
ness ticket,  the  justice  shall  deface  it  by  writing  the  word  judgment, 
and  deliver  tlie  same  to  the  person  of  whom  it  is  recovered. 

Code,  s.  1369;  R.  C,  c,  31,  s.  73;  1777,  c.  115,  s.  46;  1796,  c.  458;  1868-9, 
e.  279,  subchap.  11,  ss.  2,  4. 

1300.  Tickets  filed  with  olerl<;  only  two  to  prove  same  fact.  At 

the  court  where  the  cause  shall  be  finally  determined  the  party  recov- 
ering judgment  shall  file  in  the  clerk's  office  the  witness  tickets ; 
the  amount  whereof  shall  be  taxed  in  the  bill  of  costs,  to  be  levied  and 
recovered  for  the  benefit  of  said  party.  The  party  cast  shall  not  be 
obliged  to  pay  for  more  than  two  witnesses  to  prove  a  single  fact. 
Code,  s.  1370;  R.  C,  c.  31,  s.  74;   1783,  c.  189,  s.  3;   1796.  c.  458,  s.  2. 

1301.  Pay  of,  before  jury  of  view  or  commissioner.  Witnesses 

summoned  to  appear  at  any  survey,  or  before  any  jury  of  view,  or 
before  any  commissioner,  arbitrator,  referee,  or  other  ])erson  author- 
ized to  require  their  attendance,  shall  be  entitled  to  the  same  fees 
as  for  similar  attendance  at  the  court  of  the  county,  and  may  prove, 
by  their  OAvn  oath,  their  attendance,  mileage,  and  ferriage  before  such 
per.son,  who  is  hereby  authorized  to  administer  the  oatli ;  and  when 
they  shall  attend  on  any  commission  issuing  from  without  the  state, 
they  may  recover  the  fees  for  attendance  against  the  party  summon- 
ing them,  or  his  agent  or  attorney  directing  them  to  bo  summoned ; 
and  when  they  shall  attend  under  a  commission  or  authority  from  any 
court  in  this  state,  the  fees  for  attendance  shall  be  proved  as  afore- 
said, and  be  certified  to  the  ]n'oper  court  and  taxed  among  tlio  costs 
of  the  cause,  as  if  the  witness  had   altended   the  court;   but  never- 


1301  COSTS— 1777.    WiUiesses.  Ch.   22 

theless,  such  fees  may  be  immediately  recovered  against  the  party 
summoning. 

Code,  s.  1.365;  R.  C.  c.  31,  s.  67;  1805,  c.  685;  1848,  c.  66;  1850,  c.  188,  s.  3. 

1302.  When  witness  before  grand  jury.  No  witness  shall  receive 

pay  for  attendance  in  a  criminal  case  before  a  grand  jury  unless  such 
witness  shall  have  been  summoned  by  direction  in  writing  of  the 
foreman  of  the  grand  jury,  or  of  the  solicitor  prosecuting,  addressed 
to  the  clerk  of  the  court,  commanding  him  to  summon  such  witness, 
stating  the  name  of  the  parties  against  whom  his  testimony  may  be 
needed,  or  shall  have  been  bound  or  recognized  by  some  justice  of  the 
peace  to  appear  before  the  grand  jury. 

Code,  s.  743;    1879,  c.  264. 

1303.  State's  paid,  when;  only  two  paid;  one  attendance,  one 

day.  jSTo  jDcrsou  shall  receive  pay  as  a  witness  for  the  state  on  the  trial 
of  any  criminal  action  unless  such  person  shall  have  been  summoned 
by  the  clerk  under  the  direction  of  the  solicitor  prosecuting  in  the 
court  in  which  the  action  originated,  or  in  which  it  shall  be  tried  if 
removed ;  and  no  solicitor  shall  direct  that  more  than  two  witnesses 
shall  be  summoned  for  the  state  in  any  prosecution  for  a  misde- 
meanor, nor  shall  any  county  or  defendant  in  any  such  prosecution 
be  liable  for  or  taxed  with  the  fees  of  more  than  two  witnesses,  iinless 
the  court,  upon  satisfactory  reasons  appearing,  shall  otherwise  direct. 
And  no  witness  summoned  in  a  criminal  action  or  proceeding  shall 
be  paid  by  the  county  for  attendance  in  more  than  one  case  for  any 
one  day ;  nor  shall  the  county  be  required  to  pay  any  such  witness 
if  his  attendance  shall  be  taxed  in  more  than  one  case  on  the  same 
day. 

Code,   s.   744;    1871-2,   c.   186;    1879,   c.   264. 

1304.  Only  two  bound  over  on  appeal  in  criminal  action.  When 

the  defendant  shall  appeal  from  the  judgment  of  the  justice  of  the 
peace,  in  any  criminal  action,  it  shall  be  the  duty  of  such  justice  of 
the  peace  to  select  and  bind  over  on  behalf  of  the  state  not  more  than 
two  witnesses,  and  neither  the  county  nor  the  defendant  shall  be 
liable  for  the  fees  of  more  than  two  witnesses  on  such  appeal,  unless 
additional  witnesses  shall  be  summoned  by  order  of  the  appellate 
court  as  provided  in  the  preceding  section. 

Code,  s.  745;    1879,  e.  264. 

1305.  How  discharged;  certificate  of  attendance  filed.  It  shall 

be  the  duty  of  all  solicitors  prosecuting  in  the  several  courts,  as  each 
criminal  prosecution  shall  be  disposed  of  by  trial,  removal,  continu- 
ance or  otherwise,  to  call  and  discharge  the  witnesses  for  the  state, 
either  finally  or  otherwise,  as  the  disposition  of  the  case  may  require ; 


1305  COSTS— 17//.    Witnesses.  Ch.   22 

and  he  shall  thL-rcupou  tile  with  the  clerk  of  the  eniirt  a  eertitieate 
giving'  the  names  of  the  witnesses  entitled  to  prove  their  attendance, 
with  the  date  of  their  disehargx'.  The  said  certiticato  shall  be  in  tiie 
following  or  similar  form,  and  blanks  thereof  shall  be  furnished  to 
the  solicitor  by  the  clerk  at  the  county  expense,  viz. : 

iSTorth  Carolina, County. 

Court,    Term,    19  .  .-.  . 

State  V 

Witness   

discharged ....  day  of 19 .  .  .  ,  Solicitor. 

Code,  s.   746;    1879,  c.   264;    1881,  c.  312. 

1306.  Not  paid  unless  certified;  discretion  of  judge.  Xo  county. 

prosecutor  or  defendant  shall  he  liable  to  pay  any  witness,  nor  shall 
his  fees  be  embraced  in  the  bill  of  costs  to  be  made  \i\)  as  hereinbefore 
provided,  unless  his  name  be  certified  to  the  clerk  by  the  solicitor,  or 
included  in  the  order  of  the  court.  And  the  judge  or  justice  may,  in 
his  discretion,  for  satisfactory  cause  appearing,  direct  that  the  wit- 
nesses, or  any  of  them,  shall  receive  no  jiay,  or  only  a  ])ortion  of  the 
comjjensation  authorized  by  law:  Provided,  that  the  court,  at  any 
time  within  one  year  after  judgment,  may  order  that  any  witness 
may  be  paid,  who  for  any  good  reason  satisfactory  to  the  court  failed 
to  have  his  fees  included  in  the  original  bill  of  costs. 
Code,  ss.  733,  748;   1879,  c.  264;   1881,  c.  312. 

IX.     Criminal   Costs  Befoee  Justices. 

1307.  Who  pays  in  justice's  court.  The  ]>arty  convicted  in  a 
criminal  action,  or  proceeding  before  a  justice,  shall  always  be 
adjudged  to  pay  the  costs;  and  if  the  party  charged  be  acquitted,  the 
complainant  shall  be  adjudged  to  pay  the  costs,  and  may  be  imjiris- 
oned  for  the  nonpayment  thereof,  if  the  justice  shall  adjudge  that 
the  ]n-osecution  was  frivolous  or  malicious.  But  in  no  action  or  pro- 
ceeding of  which  he  has  final  jurisdiction,  connnenced  or  tried  in  a 
court  of  a  justice  of  the  peace,  shall  the  county  be  liable  to  pay 
any  costs. 

Code,  s.  895;    1868-9,  e.   178;    1879,  c.  92,  s.  3;    1881,  c.   176. 

1308.  Defendant  imprisoned  for.  if  ihe  justice  siiall  sentence  the 

party  found  by  him  to  be  guilty  to  pay  a  fine  and  costs,  and  the  same 
shall  not  be  immediately  paid,  the  justice  shall  commit  the  guilty 
person  to  the  county  jail  until  the  same  shall  be  paid,  or  until  he 
shall  be  otherwise  discharged  according  to  law. 

Code,  s.  904;    1808-9,  c.   178,  subchap.  4.   s.   15. 


Note.     For  costs  in  taking  depositions  to  be  used  in  another  state,  see  s.  1655. 

For  costs  of  advertising  for  creditors  of  deceased  person,  see  Administration, 
s.  39. 

For  fees  to  clerk  superior  court  for  issuing  orders,  etc.,  in  guardianship  mat- 
ters, see  s.  1797. 

For  security  for  costs,  see  ss.  450,  453. 

For  execution  for  costs  in  supreme  court,  see  Courts — Supreme. 

For  costs  in  bastardy  cases,  see  ss.  254,  255;  in  actions  against  guardians,  see 
s.  1797;  in  habeas  corpus  proceedings,  see  s.  1859;  in  foreclosing  liens,  see  Liens; 
in  draining  lowlands,  see  Drainage;  when  plaintiff  refuses  to  accept  tender  of 
judgment,  and  fails  to  recover  more,  see  s.  860 ;  in  pauper  suits,  see  s.  451 ;  in 
actions  between  landlord  and  tenant,  see  Landlord  and  Tenant;  in  actions  to  estab- 
lish public  mills,  see  Mills;  in  partition  proceedings,  see  Partition;  in  actions  for 
forfeiture  of  corporate  charter,  see  s.  1210. 


CI-IAPTEE  23. 
COUNTY  COMMISSIONERS. 

Sections. 
I.     Genera!  provisions,  1309—1310 

II.     Election  of,  1311—1316 

III.  Meetings.  1317 

IV.  Powers  and  duties,  1318—1323 
V.     Clerk  to  board.  1324—1326 

VI.     County  poor.  1327—1334 

I.      General    Provisions. 

1309.  Body  politic;  powers  exercised  by  commissioners.  Every 

county  is  a  body  loolitic  and  corporate,  and  shall  have  the  powers 
prescribed  by  statute,  and  those  necessarily'  implied  by  law,  and  no 
others;  which  powers  can  only  be  exercised  by  the  bunrd  nf  commis- 
sioners, or  in  pursuance  of  a  resolution  adopted  by  them. 

Code,  ss.   702,   703;    1868,  c.   20,  ss.   1,  2;    1S76-7,   c.   141,  s.    1. 

1310.  Corporate  powers.   A  county  is  authorized — 

1.  To  sue  and  be  sued  in  the  name  of  the  county. 

2.  To  purchase  and  bold  lands  within  its  limits  and  for  the  use 
of  its  inhabitants,  subject  to  the  supervision  of  the  general  assembly. 

3.  To  make  such  contracts,  and  to  purchase  and  hold  such  personal 
property,  as  may  be  necessary  to  the  exercise  of  its  powers. 

Rev.  Vol.  1—20  .son 


1310  COUNTY  COMHS.— General  Provisions.  Cli.  23 


4.  To  make  such  orders  for  the  disposition  or  use  of  its  ])roperty 
as  the  interests  of  its  inliabitants  require. 
Code,  s.  704;   1868,  e.  20,  s.  3. 
Note.     For  power  to  purchase  land  at  public  sales,  see  s.  2916. 


Note.     For  service  of  process,  see  s.  440. 

11.     Election  of. 

1311.  By  qualified  voters;  number.    There  shall  be  elected  in 

each  county  of  the  state,  cxcejit  those  mentioned  in  section  one  thou- 
sand three  hundred  and  twelve,  at  the  g;eneral  election  to  be  held  in 
the  year  one  thousand  eight  hundred  and  ninety-six,  and  every  two 
years  thereafter,  by  the  duly  qualified  electors  thereof,  three  persons 
to  be  chosen  from  the  body  of  the  county,  who  shall  be  styled  "the 

board  of  commissioners  for  the  county  of "  and  shall  hold 

their  ofiice  for  two  years  from  date  of  their  qualification  and  \mtil 
their  successors  shall  be  elected  and  qualified.  Provided,  the  num- 
ber of  commissioners  shall  be  five  instead  of  three  in  the  counties 
of  Alamance,  Bertie,  Buncombe,  Cabarriis,  Carteret,  Catawba,  Co- 
lumbus, Craven,  Cumberland,  Durham,  Edgecombe,  Franklin,  Gran- 
ville, Guilford,  Halifax,  Hertford,  Johnston,  Lenoir,  Lincoln,  Meck- 
lenbiirg,  New  Hanover,  Northampton,  Pasquotank,  Perquimans, 
Richmond,  Robeson,  Rockingham,  Rowan,  Wake,  Warren  and 
Wayne ;  and  in  the  county'  of  Beaufort  seven.  In  the  county  of  Gas- 
ton six,  one  of  whom  must  be  a  resident  of  Dallas  township,  one  a 
resident  of  Gastonia  township,  one  a  resident  of  River  Bend  township, 
one  a  resident  of  South  Point  towTiship,  one  a  resident  of  Crowder's 
Mountain  township  and  one  a  resident  of  Cherrj'ville  township.  If 
at  any  time  said  board  of  commissioners  for  the  county  of  Gaston 
shall  be  equally  divided  upon  any  qiiestinn  pending  before  them  and 
there  shall  be  a  tie  vote,  then  and  in  that  event  the  clerk  of  said  board 
is  aiithorizcd  and  empowered  to  cast  the  deciding  vote  and  lo  deter- 
mine such  question. 

1895,  c.  135,  s.  4;  1899,  cc.  103,  147,  153,  187,  297.  301,  .S40,  450,  467,  609;  1901, 
ce.  14,  00,  328,  3.30,  581;  1903,  cc.  4,  7,  14,  36,  46.  59.  137,  203,  206,  207,  228,  265, 
440,  515,  790;  1905,  cc.  58,  73,  148,  338,  346.  397,  .553. 

1312.  By  justices  of  peace.  The  justices  of  the  peace  for  Vance 
county,  on  the  first  Monday  in  .Time,  one  thousand  eight  liundrcd 
and  eighty-four  (and  for  Montgomery  county  on  the  first  ]\ronday  in 
June,  one  thousand  nine  hundred  and  five)  and  on  the  first  Monday 
in  June  every  two  years  thereafter,  shall  assemble  at  the  courthouse 
of  tlioir  respective  counties,  and  a  majority  being  ]irpsent,  sliall  pro- 


1312  COUNTY  COMRS.— 77.  Election  of.  Ch.  23 

ceed  to  the  election  of  not  less  than  three  nor  more  than  five  persons, 
to  be  chosen  from  the  body  of  the  county,  excluding  the  jiistices  them- 
selves, who  shall  be  styled  "the  board  of  commissioners  for  the  county 

of •  ■ )"  and  shall  hold  their  offices  for  two  years  from  the  date 

of  their  qualification,  and  until  their  successors  shall  be  elected  and 
qualified. 

Code,  s.  71G;  1899,  c.  488;  1887,  e.  307;  1903,  cc.  191,  207,  790;  1876-7, 
c.  1-11,  s.  5 ;  1905,  cc.  37,  44,  58,  73,  148,  340,  422. 

1313.  Meetings  of  justices  of  the  peace  in  certain  counties. 

For  the  joroiior  discharge  of  their  duties,  the  justices  of  the  peace  shall 
meet  annually  with  the  board  of  commissioners  on  the  first  Monday 
in  June,  unless  they  shall  be  oftener  convened  by  the  board  of  com- 
missioners, which  is  empowered  to  call  together  the  justices  of  the 
peace  not  oftener  than  once  in  three  months.  For  attending  such 
meetings,  the  justices  of  the  jDcace  shall  receive  no  compensation; 
but  they  shall  keep  a  record  of  their  meetings.  The  register  of  deeds 
shall  be  ex  officio  the  clerk  of  the  justices  of  the  peace,  and  he  shall 
receive  such  compensation  for  his  services  as  the  board  of  commis- 
sioners shall  provide.  This  section  shall  apply  only  to  the  county 
of  "Vance. 

Code,  s.  717:  1899,  e.  488;  1901,  c.  680;  1903,  ee.  191,  40,  207,  790;  1876-7, 
c.  141,  s.  5;  1905,  cc.  37,  44,  58,  73,  148,  340. 

1314.  Vacancies  in  board,  how  filled.  In  case  of  a  vacancy  occur- 
ring in  the  board  of  commissioners  of  a  county,  the  clerk  of  the 
superior  court  for  the  county  shall  appoint  to  said  office  for  the 
unexpired  tenn,  except  in  the  county  named  in  section  one  thousand 
three  hundred  and  fifteen. 

Code,  s.  719;    1895,  c.  135,  s.  7. 

1315.  Vacancies  in  board,  how  filled  in  certain  counties.   In 

case  of  a  vacancy  occurring  in  the  board  of  commissioners  of  a  county 
the  justices  of  the  peace  for  the  county  shall  appoint  to  said  office 
for  the  unexpired  term.  This  section  shall  apply  only  to  the  county 
of  Vance. 

Code,  s.  719;  1899,  c.  488;  1901,  c.  680;  1903,  cc.  40,  191,  207,  790;  1905,  cc.  37, 
44,  58,  73,  148,  340. 

1316.  When  board  to  qualify;  oath  to  be  filed.   The  board  of 

commissioners  shall  qualify  and  enter  upon  the  duties  of  their  office 
on  the  first  Monday  of  December  next  succeeding  their  election,  and 
they  may  take  the  oaths  of  office  before  the  clerk  of  the  superior 
court,  or  some  judge,  or  justice  of  the  ]icace  or  other  jierson  qualified 
by  law  to  administer  oaths.     The  oaths  of  otfice  severally  t;d<('n  and 

371 


1316  COUNTY  COMES.— 77.  Election  of.  Ch.  23 

subscribed  by  them  shall  be  deposited  with  the  clevk  of  the  superior 
court. 

Code,  s.  708;    18!I5,  c.   135,  s.  4. 

III.     Meetings. 

1317.  Meetings  of  the  board.  The  board  of  commissioners  in 
each  county  shall  hold  a  regular  meeting  at  the  courthouse,  on  the 
first  -Mondays  iu  DeceiulKT  and  June.  Special  meetings  may  be 
held  on  the  first  Monday  in  every  month,  but  shall  not  continue  longer 
in  session  than  two  days.  Meetings  may  be  held  at  other  times  for 
the  more  convenient  dispatch  of  business  at  the  call  of  the  chairman, 
on  the  written  request  of  one  member  of  the  board,  but  public  notice 
of  the  time  and  place  of  all  such  called  meetings  shall  be  posted  at 
the  courthouse  door  for  not  less  than  six  days,  and  published  one 
time  in  a  county  newspaper,  if  there  is  one.  The  board  shall  receive 
no  compensation  for  attending  such  called  meetings.  The  board  may 
adjourn  its  regular  meetings  in  December  and  June  from  day  to  day 
until  the  business  before  it  is  disposed  of.  Every  meeting  shall  be 
open  to  all  persons.  A  majority  of  the  board  shall  constitute  a 
quorum.  At  each  regular  December  meeting  the  board  shall  choose 
one  of  its  members  as  chairman  for  the  ensuing  year ;  in  his  absence 
the  members  present  shall  choose  a  temporary  chairman. 
Code,  s.  706. 


Note.  Meetings  in  certain  counties  are  governed  by  special  laws  as  follows: 
Mecklenburg,  1893,  c.  199;  Clay,  1889,  c.  184;  Forsyth,  1897,  c.  437;  Wake, 
1899,  c.  297;  Durham,  1901,  c.  309;  Edgecombe,  1901,  c.  429;  Gaston,  190.3,  c.  34. 

IV.     Powers  and  Duties. 

1318.  Powers  given  board.  The  board  of  commissioners  of  the 
several  counties  shall  have  power — 

1.    TO   EXEMPT   FROM    CAPITATION    TAX. 

To  exempt  from  capitation  tax  in  special  cases,  on  account  of 
poverty  and  infinnity. 

2.  TO  PROVIDE  FOR  THE  PAYMENT  OF  DEBT. 

To  provide  by  taxation  or  otherwise,  for  the  prompt  and  regular 
payment,  with  interest,  of  any  existing  debt  owing  by  any  county. 


13]  8         COUNTY  COMES.— 77.  Poivers  and  Duties.         Ch.  23 

3.  TO  SUBMIT  PEOPOSITIONS  TO  CONTEACT  DEBT  TO  A  VOTE  OF 
ELECTOES. 

To  submit  to  a  vote  of  the  qualified  electors  in  the  county,  after 
having  obtained  the  approval  of  the  general  assembly,  any  proposi- 
tion to  contract  a  debt,  or  loan  the  credit  of  the  coimty,  imder  section 
seven,  article  seven,  of  the  constitution;  to  order  the  time  for  voting 
upon  such  proposition,  which  shall  be  upon  public  notice  thereof 
at  one  or  more  places  in  each  township  in  the  county,  and  p\iblica- 
tion  in  one  or  more  county  newspapers,  if  there  be  any,  for  three 
months  next  immediately  preceding  the  time  fixed  on ;  and  such 
election  shall  take  place  and  be  conducted  under  the  laws  as  pre- 
scribed for  the  election  of  members  of  the  general  assembly ;  and  the 
commissioners  shall  provide  for  giving  effect,  in  case  of  the  adoption 
of  the  proposition,  to  the  expressed  will  of  a  majority  of  the  qualified 
voters  in  such  election. 

4.  TO  MAKE  OEDEES  EESPECTING  COEPOEATE  PEOPEETY. 

To  make  such  orders  respecting  the  corporate  property  of  the 
coimty  as  may  be  deemed  expedient. 

5.    TO  AUDIT  ACCOUNTS. 

To  audit  accounts  against  the  county,  and  direct  the  raising  of 
the  moneys  necessary  to  defray  them. 

fi.    TO    PUIiCIIASE    PEOPEETY   FOE   ANY   PUBLIC    BUILDING,   AND   AT 
EXECUTION   SALE. 

To  purchase  real  property  necessary  for  any  public  county  build- 
ing, and  for  the  support  of  the  poor;  and  to  determine  the  site 
tliereof,  where  it  has  not  been  already  located ;  and  to  purchase  land 
at  any  execution  sale,  when  it  shall  be  deemed  expedient  to  do  so, 
to  secure  a  debt  due  the  county.  The  deed  shall  be  made  to  the 
county,  and  the  board  mny,  in  its  discretion,  sell  any  lands  so  pur- 
chased. 

7.    TO    DIVIDE    COUNTY    INTO    TOWNSHIPS. 

To  divide  each  county  into  convenient  districts,  called  townships, 
and  to  determine  the  boundaries,  and  prescribe  the  names  of  said 
townships.  A  map  and  survey  of  said  townships  shall  be  filed  in 
the  office  of  the  clerk  of  the  board  of  commissioners,  and  also  in  the 
office  of  the  secretarv  of  state. 


1318         COUNTY  COMES.— 7F.  Powers  and  Duties.         Ch.  23 

8.    TO    OEDEK    THE    LAYING    OUT,    ALTERATION    OR    DISCONTINUING    OF 
HIGHWAYS. 

To  exercise  authority  in  laying  out,  altering,  repairing  and  dis- 
continuing highways ;  in  establishing  and  settling  ferries ;  in  build- 
ing and  keeping  up  bridges;  in  laying  off  or  discontinuing  cart- 
ways'; in  providing  draws  in  all  bridges,  where  the  same  may  be 
necessary  for  the  convenient  passage  of  vessels ;  in  appointing  over- 
seers of  highways;  in  excusing  persons  from  working  on  the  high- 
ways; in  allowing  and  contracting  for  the  building  of  toll-bridges, 
and  taking  bond  from  the  builders  thereof;  and  in  licensing  the 
erection  of  gates  across  highways.  This  a^ithority  shall  be  exercised 
under  the  rules,  regulations,  restrictions  and  penalties  in  all  respects 
prescribed  and  imposed  in  the  chapter  entitled  Roads,  Ferries  and 
Bridges. 

9.    TO    RAISE    HIGHWAY    HONEYS. 

To  raise  by  tax  the  necessary  highway  moneys,  in  such  manner  as 
may  be  prescribed  by  law. 

10.    TO  APPOINT  AN  INSPECTOE  OF  HIGHWAYS  AND  BRIDGES. 

To  appoint  an  inspector  of  highways  and  bridges  for  the  county, 
if  deemed  necessary;  to  fix  and  provide  for  his  compensation  and 
regulate  his  duties,  not  inconsistent  with  the  laws  of  the  state.  The 
commissioners  of  two  or  more  counties  may  unite  in  employing  an 
inspector  of  highways  and  bridges,  and  apportioning  his  compensa- 
tion between  the  respective  counties  as  may  be  agreed  upon. 

11.    TO   PROVIDE   FOR  THE  EMPLOYMENT   OF   PRISONERS. 

To  provide  for  the  employment  on  the  highway  or  public  works 
in  the  county  of  all  persons  condemned  to  imprisonment  with  hard 
labor,  and  not  sent  to  the  penitentiary. 

12.    TO   APPOINT    PROXIES    TO    REPRESENT    COUNTY. 

To  appoint  proxies  to  represent  in  any  annual  or  other  meeting, 
the  shares  or  interest  held  by  any  county  in  a  railroad  company,  or 
other  corporation,  under  the  charter  of  such  corporation,  or  under 
any  special  acts  of  the  general  assembly,  authorizing  county  sub- 
scriptions in  such  cases. 

13.  TO  SELL  OR  LEASE  REAL  PROPERTY. 

To  sell  or  lease  any  real  property  of  the  county  and  to  make  deeds 
or  leases  for  the  same  to  any  purchaser  or  lessee. 

374 


1318         COUNTY  COMRS.— 7F.  Powers  and  Duties.         Ch.  23 

14.  TO  PROVIDE  FOE  THE  MAINTENANCE  OF  THE  POOE. 

To  provide  by  tax  for  the  maintenance,  comfort  and  well-ordering 
of  the  poor;  to  employ,  biennially,  by  public  letting  or  otherwise, 
some  competent  person  as  overseer  of  the  poor,  to  institute  proceed- 
ings by  the  warrant  of  the  chairman  against  any  person  coming  into 
the  county  who  is  likely  to  become  chargeable  thereto,  and  cause  the 
removal  of  such  poor  person  to  the  county  where  he  was  last  legally 
settled ;  and  to  recover  by  action  in  the  superior  court  from  the 
said  county,  all  the  charges  and  expenses  whatever,  incurred  for  the 
maintenance  or  removal  of  such  poor  person. 

15.    TO    ESTABLISH    PUBLIC    HOSPITALS. 

To  establish  public  hospitals  for  the  county  in  cases  of  necessity, 
and  to  make  rules,  regiilations  and  by-laws  for  preventing  the 
spread  of  contagious  and  infectious  diseases,  and  for  taking  care 
of  those  afflicted  thereby,  the  same  not  being  inconsistent  with  the 
laws  of  the  state;  and  to  raise  by  taxation  the  necessary  moneys  to 
defray  the  charges  and  expenses  so  incurred. 

16.    TO  PEOCUEE  WEIGHTS  AND  MEASUEES. 

To  procure  for  each  county  sealed  weights  and  measures,  according 
to  the  standard  prescribed  by  the  congress  of  the  United  States; 
and  to  elect  a  standard  keeper,  who  shall  qualify  before  the  board 
and  give  bond  approved  by  the  board,  as  prescribed  by  law. 

17.    TO    APPOINT    COMMISSIONERS    TO    OPEN    EIVEES    AND    CEEEKS. 

To  appoint  a  commissioner  to  open  and  clear  the  rivers  and  creeks 
within  the  county,  or  where  such  river  or  creek  forms  a  county  line 
or  a  part  thereof.  For  this  purpose  the  board  is  authorized  to 
withdraw  from  the  public  roads  such  hands  as  may  be  deemed  neces- 
sary, and  allot  them  to  such  work  under  overseers  and  the  direction 
of  the  commissioner.  The  board  may  impose  the  duties  of  this 
subdivision  on  the  inspector  of  highways  and  bridges  when  ap- 
pointed ;  and  shall  in  all  respects  conduct  the  opening  and  clear- 
ing of  such  rivers  and  creeks  as  prescribed  by  law. 

18.    TO    LICENSE    PEDDLERS    AND    EET.ilLERS    OF    SPIEITUOUS    LIQUOES. 

To  license  peddlers  and  retailers  of  spirituous  and  other  liquors 
as  prescribed  by  law.     No  license  shall  be  good  for  more  than  one 


1318         COUNTY  COMES.—/!'.  J'oirers  and  Duties.         Cli.  23 

year,  nor  granted  to  two  or  more  persons  to  peddle  as  partners  in 
trade.  And  the  board  of  commissioners  shall  grant  licenses  for  the 
sale  of  spirituous  liquors  to  all  persons  possessing  the  qualifications 
required  by  law,  except  in  those  localities  where  the  sale  of  spirit- 
uous liquors  shall  be  prohibited  by  law. 

19.  TO  ESTABLISH  PUBLIC  LANDINGS^  PLACES  OF  INSPECTION,  AND 
INSPECTOES. 

To  establish  such  public  landings  and  places  of  inspection  as  the 
board  of  commissioners  may  think  proper ;  and  to  appoint  such 
inspectors  in  any  town  or  city  as  may  be  authorized  by  law. 

20.     TO    LICENSE    AUCTIONEERS. 

To  license  for  tlie  term  of  one  year  any  number  of  persons  to 
exercise  the  trade  and  business  of  auctioneers  in  each  county,  and 
to  take  their  bonds  as  prescribed  by  law. 

21.    TO  REQUIRE   FROM  ANY   COUNTY  OFFICER  A   REPORT  UNDER  OATJI. 

To  require  from  any  county  officer,  or  other  person  employed  and 
paid  by  the  county,  a  report  under  oath  at  any  time,  on  any  matters 
connected  with  his  duties. 

22.     TO   AUTHORIZE    CIIAIRIIAN    TO    ISSUE   SUBPCENAS. 

To  authorize  the  chairman  to  issue  subpoenas  to  compel  the  attend- 
ance before  the  board,  of  persons,  and  the  production  of  books  and 
papers  relating  to  the  affairs  of  the  county  for  the  purjiose  of 
examination,  on  any  matter  within  the  jurisdiction  of  the  board. 
The  subpoena  shall  be  served  by  the  sheriff  or  any  constable  to  whom 
it  is  delivered ;  and  upon  return  of  personal  service  thereof,  whoever 
neglects  to  comply  with  the  subpoena  or  refuses  to  answer  any  proper 
question,  shall  be  guilty  of  contempt  and  punishable  therefor  by  the 
board.  A  witness  is  bound  in  such  case  to  answer  all  the  questions 
which  he  would  be  bound  to  answer  in  like  case  in  a  court  of  justice; 
but  his  testimony  given  before  the  board  shall  not  be  used  against  the 
witness  on  the  trial  of  any  criminal  prosecution  other  than  for  per- 
jury committed  on  the  examination  ;  the  chairman  of  the  board  of 
county  commissioners  for  each  county  is  authorized  in  his  official 
capacity  to  administer  oaths  in  any  matter  coming  before  either 
of  such  boards.  Any  member  of  such  board  while  temporarily  act- 
ing as  such  chairman   shall  have  and   exercise  like   authority. 

37G 


1318         C0U:NTY  COMRS.— IV.  Poivers  and  Duties.         Ch.   23 

23.    TO    APl'KOVE    BONDS     OF    COUNTY    OFFICERS    AND    INDUCT     TUEM 
INTO    OFFICE. 

To  qualify  and  induct  into  office  at  the  meeting  of  the  board,  on 
the  first  Monday  in  the  month  next  succeeding  their  election  or 
appointment,  the  following  named  county  ofiicers,  to-wit:  Clerk  of 
the  superior  court,  sheriff,  coroner,  treasurer,  register  of  deeds,  sur- 
veyor, and  constable;  and  to  take  and  approve  the  ofiicial  bonds  of 
such  officers,  which  the  board  shall  cause  to  be  registered  in  the  office 
of  the  register  of  deeds.  The  original  bonds  shall  be  deposited 
with  the  clerk  of  the  superior  court,  except  the  bond  of  the  said 
clerk,  which  shall  be  deposited  with  the  register  of  deeds,  for 
safe-keeping:  Provided,  however,  that  if  the  said  board  shall  declare 
the  official  bonds  of  any  of  said  county  officers  to  be  insufiicient, 
or  shall  decline  to  receive  the  same,  the  said  officers  may  appeal 
to  the  superior  court  judge  riding  the  district  in  which  said  county 
is,  or  to  the  resident  judge  of  said  district,  as  he  may  elect,  who 
shall  hear  said  appeal  in  chambers,  at  any  place  in  said  district 
which  he  shall  desigTiate,  within  ten  days  after  notice  by  him  of 
the  same,  and  if,  upon  the  hearing  of  said  appeal,  the  judge  shall 
be  of  the  opinion  that  the  said  bond  is  sufficient,  he  shall  issue 
an  order  to  the  said  board  of  commissioners  to  induct  the  said  officer 
into  office,  or  that  he  shall  be  retained  in  office,  as  the  case  may  be; 
but  if,  upon  the  hearing  of  said  appeal,  the  judge  shall  be  of  the 
opinion  that  the  bond  is  insufficient,  he  shall  give  the  appellant  ten 
days  in  which  to  file  before  him  an  additional  bond,  and  if  the 
appellant  shall  within  the  said  ten  days  file  before  the  said  judge 
a  good  and  sufficient  bond,  in  the  opinion  of  said  judge,  he  shall  so 
declare  and  issue  his  order  to  said  board  directing  and  requiring 
them  to  induct  the  appellant  into  office,  or  retain  him,  as  the  case 
may  be;  but  if,  in  the  opinion  of  the  said  judge,  both  the  original 
and  the  additional  bonds  are  insufficient,  he  shall  declai-e  the  said 
office  vacant  and  notify  the  said  commissioners,  A\'ho  shall  notify  the 
clerk  of  the  superior  court,  who  shall  appoint  to  fill  the  vacancy, 
except  in  cases  of  the  clerk  of  the  superior  court,  which  vacancy 
shall  be  filled  by  the  resident  judge.  The  judginent  of  the  superior 
court  judge  shall  be  final.  The  appeal  and  the  finding  and  judgment 
of  the  suj^erior  coiirt  judge  shall  be  recorded  on  the  minutes  of  tlie 
board  of  commissioners. 

24.    TO   ADOPT   A    COUNTY    SEAL. 

To  adopt  a  seal  for  the  county,  a  description  and  impression 
whereof  shall  be  filed  in  the  office  of  superior  court  clerk  and  of  the 
secretary  of  state. 

877 


I 


1318         COUNTY  COMES.— 7F.  Poivers  and  Dulics.         Ch.  23 

25.    TO    LEVY    COUNTY    TAXES. 

To  levy,  in  liko  manner  witli  the  state  taxes,  the  necessary  taxea 
for  county  purposes ;  but  the  tnxes  so  levied  shall  never  exceed  the 
double  of  the  state  tax,  except  for  a  special  purpose,  and  with  the 
special  approval  of  the  general  assembly.     All  county  taxes  shall 
be  levied  at  the  regular  meeting  of  the  board  on  the  first  Monday  in    | 
June.     The  board  may  extend  the  time  for  the  collection  and  settle-    | 
ment  of  the  county  taxes  to  S\ich  time  as  may  be  deemed  expedient,    ■ 
not  beyond  the  first  day  of  May  next  after  the  taxes  were  levied. 

26.    TO  EKECT  AND  REPAIR  COUNTY  BUILDINGS.  1 

I 

To  erect  and  repair  the  necessary  county  buildings,  and  to  raise,  J 
by  taxation,  the  moneys  therefor. 

27.    TO    BORROW    MONEY. 

To  borrow  money  for  the  necessary  expenses  of  the  county,  and 
to  provide  for  its  payment,  with  interest,  in  periodical  instalments,  by 
taxation. 

28.    TO    DESIGNATE    SITE    FOR    COUNTY    BUILDINGS. 

To  remove  or  designate  a  new  site  for  any  coimty  building;  but  the  ii 
site  of  any  county  building  already  located  shall  not  be  changed,  I) 
unless  by  an  unanimous  vote  of  all  the  members  of  the  board  at  the  ' 
regular  December  meeting,  and  unless  ujion  notice  of  the  proposed  i 
change,  specifying  the  new  site.  Such  notice  shall  be  published  in  i 
a  newspajDer  printed  in  the  county,  if  there  is  one,  and  posted  in  i 
one  or  more  public  places  in  every  township  in  the  co\nitv  for  three  ' 
months,  next  immediately  preceding  the  annual  meeting,  at  which  i 
the  final  vote  on  the  proposed  change  is  to  be  taken.  Such  new  site  i 
shall  not  be  more  than  one  mile  distant  from  the  old,  except  upon  the  : 
special  approval  of  the  general  assembly. 

29.    TO    CONSTRUCT   AND  REPAIR   BRIDGES. 

To  construct  and  repair  bridges  in  the  county,  and  to  raise  by  j 
tax  the  money  necessary  therefor,  and  when  a  bridge  is  necessary  i 
over  a  stream,  which  divides  one  county  from  another,  the  board  of  i 
commissioners  of  each  county  shall  join  in  constructing  or  repairing  | 
such  bridge ;  and  tlio  charge  thereof  shall  be  defrayed  by  the  conn- 
tics  concerned,  in  proportion  to  the  nmnber  of  taxable  polls  in 
each. 

»78  I 


1318        COUNTY  COMES.— /F.  Powers  ami  Duties.         Ch.  23 


30.  TO   ERECT,   DIVIDE   OE   ALTER   TOWNSHIPS. 

To  erect,  divide,  change  the  names  of,  or  alter  townships  in  the 
manner  following:  In  any  county,  any  three  freeholders  of  each 
township  to  be  affected,  may,  after  the  notice  presently  to  be  men- 
tioned, apply  b}"-  petition  to  the  board  of  commissioners,  to  erect  a 
new  township,  or  divide  an  existing  township,  or  change  the  name 
of  or  alter  the  boundaries  thereof.  Notice  of  the  a]jplication  shall 
be  posted  in  one  or  more  public  places  in  each  of  such  townships,  and 
published  in  a  newspaper  printed  in  the  county,  if  there  is  one,  for 
at  least  four  weeks  preceding  the  meeting  at  which  the  application 
is  made  to  the  board.  No  township  shall  have  or  exercise  any  cor- 
porate powers  whatsoever,  vmless  authorized  by  an  act  of  the  gen- 
eral assembly,  to  be  exercised  under  the  supeiwision  of  tlie  board  of 
commissioners. 

31.  TO  PROVIDE  FOR  A  HOUSE  OF  CORRECTION. 

To  make  provision  for  the  erection  in  each  county  of  a  house  of 

.  correction,  where  vagrants  and  persons  guilty  of  misdemeanors  shall 

1  be  restrained  and  usefully  employed;  to  regulate  the  employment  of 

labor  therein ;  to  appoint  a  superintendent  thereof,  and  such  assist- 

1  ants  as  may  be  deemed  necessary,  and  to  fix  their  compensation. 

32.    TO    REGUL.VTE   SPEED   OF   AUTOMOBILES. 

f 

iTo  regulate  the  speed  of  automobiles,  motor-cycles  and  other  like 
vehicles  on  the  public  roads  and  bridges,  and  make  such  ordinances  as 
they  may  deem  necessary  governing  the  same.      This  subsection  shall 
I  not  apply  to  the  counties  of  Mecklenburg  and  New  Hanover. 

I  1319.  Powers  in  certain  counties,  in  the  counties  of  Montgomery 
and  Vance,  the  powers  conferred  by  subsections  twenty-five  and 
twenty-eight  of  the  preceding  section  shall  be  exercised  only  with  the 
concurrence  of  a  majority  of  the  justices  of  the  peace,  sitting  with 
them ;  and  the  powers  conferred  by  subsections  thirteen,  twenty-six, 
twenty-seven,  thirty  and  thirty-one  of  the  preceding  section  shall  be 
exercised  only  with  tlie  concurrence,  or  assent  of  a  majority  of  the  jus- 
tices of  the  peace;  and  the  ])owers  conferred  in  subsection  twenty-nine 
of  the  preceding  section  shall  not  be  exercised  witliout  the  concurrence 
of  the  justices  of  the  peace,  where  the  costs  exceed  five  hundred  dol- 
lars; and  in  said  counties  subsection  twenty-three  of  the  preceding  sec- 
tion shall  not  be  enforced,  but  the  following  shall  govern,  to-wit:  To 
qualify  and  induct  into  office  at  the  meeting  of  the  board  on  the  first 

379 


1319         COUNTY  COilRS.— /T'.  Powers  ami  Duties.   '     Ch.  23 

Monday  in  the  month  next  succeeding  their  election  or  appointment 
the  following-named  county  officers,  to-wit:  Clerk  of  the  superior 
court,  sheriff,  coroner,  treasurer,  register  of  deeds,  sun'ejor  and  con- 
stable ;  and  to  take  and  ajiprove  the  official  bonds  of  said  officers, 
which  the  board  shall  cause  to  be  registered  in  the  office  of  the  regis- 
ter of  deeds.  The  original  bonds  shall  be  dejiosited  with  the  clerk  of 
the  sujierior  court,  except  the  bond  of  the  said  clerk,  which  shall  be 
deposited  Math  the  register  of  deeds  for  safe-keeping. 

Code,  s.  707;  1895,  c.  135;  1899,  c.  89;  1899,  c.  1C6;  1899,  c.  488;  1901, 
c.  G80 ;  1903,  c.  790 ;  1905.  c.  422. 

1320.  Purchase  of  county  indebtedness.  The  board  of  commis- 
sioners may  purcha.se  at  any  price,  not  exceeding  their  par  value  and 
accumulated  interest,  any  of  the  outstanding  bonds  or  other  indebted- 
ness of  the  county. 

Code,   s.   "IS. 

1321.  To  fill  vacancies  in  certain  offices.  Whenever  a  vacancy 
shall  occur  in  the  offices  of  sheriff,  constable,  coroner,  register  of 
deeds,  county  treasurer  or  county  surveyor,  the  board  of  commission- 
ers of  the  coxmty  shall  fill  the  same  by  appointment. 

Code,  s.  720. 

1322.  To  settle  disputed  county  lines.  Whenever  there  shall  be 
any  dispute  concerning  the  dividing  line  between  counties,  the  board 
of  commissioners  of  each  county  interested  in  the  adjustment  of 
said  line,  a  majority  of  the  board  consenting  thereto,  may  appoint 
one  or  more  commissioners,  on  the  part  of  each  county,  to  settle  and 
fix  the  line  in  dispute ;  and  their  report,  when  ratified  by  a  majority 
of  the  commissioners  in  each  county,  shall  be  conclusive  of  the  loca- 
tion of  the  true  line,  and  shall  be  recorded  in  the  register's  ofiice  of 
each  county,  and  in  the  office  of  the  secretary  of  state. 

Code.   s.   721;   R.  C,  c.   27;    1836,  c.   3. 

1323.  Such  commissioners,  how  sworn  and  paid.  Such  com- 
missioners, before  entering  on  the  duties  assigned  them,  .shall  be 
sworn  before  a  justice  of  the  peace;  and  they,  with  all  others 
employed,  shall  lie  allowed  rea.sonable  pay  for  their  laliors, 

Co<le,  s.  722. 


Note.     County  commissioners  failin<i  to  discharge  duly  guilty  of  misdemeanor, 
see  ss.  3573,  3.')7'4.  3592. 

Co\inty  commissioners  lial>le  for  taxes,  see  s.  2814. 


1324  COUNTY  COMRS.— 7.   Cleric  to  Board.  Ch.  23 

V.     Cleek  to  BoAKn. 

1324.  Register  of  deeds  ex  officio;  compensation.  The  register 

of  deeds  shall  be  ex  officio  clerk  of,  and  his  compensation  shall  be 
fixed  by,  the  board  of  commissioners. 

Code,  s.  710;   1895,  c.   135,  s.  4. 

1325.  Duties.    It  is  the  clerk's  duty — 

1.  To  record  in  a  book  to  be  provided  for  the  purpose  all  the 
proceedings  of  the  board. 

2.  To  enter  every  resolution  or  decision  concerning  the  payment 
of  money. 

3.  To  record  the  vote  of  each  commissioner  on  any  question  sub- 
mitted to  the  board,  if  required  by  any  member  present. 

4.  To  preserve  and  file  in  alphabetical,  or  other  due  order,  all 
accoimts  presented  or  acted  on  by  the  board,  and  to  designate  upon 
every  account  audited  the  amount  allowed  and  the  charges  for  which 
it  was  allowed. 

5.  To  keep  the  books  and  papers  of  the  board  free  for  the  exami- 
nation of  all  persons. 

6.  To  administer  oaths  to  all  persons  presenting  claims  against  the 
county,  but  he  shall  receive  no  fee  therefor. 

Code.  s.  712;   1905,  c.  530. 

1326.  To  publish  annual  statement.  The  clerk  shall  annually, 
on  or  within  five  days  next  before  the  first  Monday  of  December, 
make  out  and  certify,  and  cause  to  be  posted  at  the  courthouse,  and 
published  in  a  newspaper  printed  in  the  county,  if  there  be  one, 
for  at  least  four  weeks,  a  statement  for  the  preceding  year,  showing — 

1.  The  amount,  items  and  nature  of  all  compensation  audited 
by  the  board  to  the  members  thereof  severally. 

2.  The  number  of  days  the  board  was  in  session,  and  the  distance 
traveled  by  the  members  respectively  in  attending  the  same. 

3.  Whether  any  unverified  accounts  were  audited,  and  if  any, 
how  much  and  for  what. 

Code,  s.  713. 


Note.     Failure  to  publi.sli  statement  a  misdemeanor,  see  s.  3592. 
For   record   to   be   kept   of   accoimts   of   funds   by   clerk    of   superior   court,   see 
s.  919. 

For  courthouse,  see  s.  1335. 

For  limit  on  county  and  other  municipal  indebtedness,  see  s.  2977. 

VI.     County  Pooe. 

1327.  County  commissioners  to  provide  for  support  of;  super- 
intendent. The  board  of  commissioners  of  each  county  is  author- 


1327  COUNTY  COMES.— TV.  County  Poor.  Ch.  23 

ized  to  provide  by  taxation  for  the  maintenance,  and  to  do  all  such 
matters  and  things  as  may  be  deemed  expedient  for  the  comfort  and 
well  ordering,  of  the  poor ;  to  employ  biennially  some  competent  per- 
son as  superintendent  of  the  county  home  for  the  aged  and  infirm, 
with  power  to  remove  him  for  cause;  to  institute  proceedings  against 
any  person  coming  into  the  county  who  is  likely  to  become  charge- 
able thereto,  and  to  cause  the  removal  of  such  person  to  the  county 
where  he  was  last  legally  settled;  and  to  recover  by  action  from 
such  county,  all  charges  and  expenses  whatever  incurred  for  the 
maintenance  or  removal  of  such  poor  person. 

Code,   s.   3540;    1891,  c.   138. 

1328.  County  home  for  aged  and  infirm.  All  persons  who  may 

become  chargeable  to  any  county  shall  be  maintained  at  the  county 
home  for  the  aged  and  infirm,  or  at  such  place  or  places  as  the 
board  of  commissioners  may  select  or  agree  upon. 
Code,  s.  3541;   1891,  c.  138. 

1329.  How  county  home  supported.  The  board  of  commission- 
ers may  provide  for  the  support  of  the  persons  admitted  by  them 
to  the  home  for  the  aged  and  infirm  by  employing  a  superintendent 
at  a  certain  sum,  or  by  paying  a  specified  sum  for  the  support  of  such 
persons  to  any  one  who  will  take  charge  of  the  county  home  for  the 
aged  and  infirm,  as  said  board  may  deem  for  the  best  interest  of  the 
county  and  the  cause  of  humanity. 

Code,  s.  3543;   1876-7,  c.  277,  s.  3. 

1330.  Indigent  persons  owning  property.  AViienever  any  indi- 
gent person  becomes  chargeable  to  a  county  for  maintenance  and 
support  in  accordance  with  the  provisions  of  this  chapter,  owning 
any  estate,  it  shall  be  the  duty  of  the  board  of  commissioners  of  any 
county  liable  to  pay  the  expenses  of  such  indigent  person,  to  cause 
the  same  to  be  sold  for  its  indemnity  or  reimbursement  in  the  man- 
ner provided  in  the  chapter  entitled  Idiots,  Inebriates  and  Lunatics, 
or  they  may  take  jiossession  thereof  and  rent  the  same  out  and  apply 
the  rent  toward  the  support  of  such  indigent  per.-^on. 

Code,  s.  3547;   18G0,  c.  49. 

1331.  Families  of  militiamen  supported  by  county.   When  any 

citizen  of  the  state  is  absent  on  service  as  a  militiaman  or  member 
of  the  state  guard,  and  his  family  are  unable  to  support  tlicmselves 
during  his  absence,  the  board  of  commissioners  of  his  county,  on 
application,  shall  make  towards  their  maintenance  such  allowance 
as  may  be  deemed  reasonable. 

Code,  s.  3546;  K.  C,  c.  86,  s.  14;   1779,  c.  152. 

382 


1332  COUNTY  COMRS.— 77.  County  Poor.  Ch.  23 

1332.  Paupers  not  to  be  hired  out  by  auction.  No  pauper  shall 

be  let  out  at  public  auction,  but  the  board  of  commissioners  may 
make    such    arrangements    for    the    support   of    paupers    with    their 
friends  or  other  persons,  when  not  maintained  at  the  county  home 
for  the  aged  and  infirm,  as  may  be  deemed  best. 
Code,  s.  3542;   1876-7,  c.  277,  s.  2. 

1333.  Legal  settlements,  how  acquired.  Legal  settlements  may 

be  acquired  in  any  county,  so  as  to  entitle  the  party  to  be  supported 
by  such  county,  in  the  manner  following,  and  not  otherwise: 

1.    BY    ONE    YEAR''S    EESIDENCE. 

Every  person,  who  shall  have  resided  continuously  in  any  county 
for  one  year,  shall  be  deeiued  legally  settled  in  that  county. 

2.     MAEEIED    WOMEN    TO    HAVE    SETTLEMENT    OF    THEIR    HUSBANDS. 

A  married  woman  shall  always  follow  and  have  the  settlement 
of  her  husband,  if  he  have  any  in  the  state;  otherwise,  her  own  at 
the  time  of  her  marriage,  if  she  then  had  any,  shall  not  be  lost 
or  suspended  by  the  marriage,  but  shall  be  that  of  her  husband,  till 
another  is  acquired  by  him,  which  shall  then  be  the  settlement  of 
both. 

3.    LEGITIMATE    CHILDREN    TO    HAVE    SETTLEMENT    OF    FATHER. 

Legitimate  children  shall  follow  and  have  the  settlement  of  their 
father,  if  he  have  any  in  the  state,  until  they  gain  a  settlement  of 
their  own ;  but  if  he  have  none,  they  shall,  in  like  manner,  follow 
and  have  the  settlement  of  their  mother,  if  she  have  any. 

4.    ILLEGITIMATE   CHILDREN,   THAT   OF   THEIR   MOTIIEK. 

Illegitimate  children  shall  follow  and  have  the  settlement  of  their 
mother,  at  the  time  of  their  birth,  if  she  then  have  any  in  the  state. 
But  neither  legitimate  nor  illegitimate  children  shall  gain  a  settle- 
ment by  birth  in  the  county  in  which  they  may  be  born,  if  neither 
of  their  parents  had  any  settlement  therein. 

5.    SETTLEMENT    TO    CONTINUE    UNTIL    NEW    ONE    ACQUIRED. 

Every  legal  settlement  shall  continue  till  it  shall  be  lost  or  defeated 
by  acquiring  a  new  one,  within  or  without  the  state ;  and  upon 
acquiring  such  new  settlement,  all  former  settlements  shall  be 
defeated  and  lost. 

Code,  s.  3544;  R.  C,  c.  86,  s.  12;  1777,  e.  117,  s.  16. 


1834  COUNTY  COMES.— F/.  Countu  Poor.  Ch.  23 

1334.  Removed  to  proper  county,  at  cost  of  that  county;  house- 
keepers entertaining  poor,  rpon  cuiii]ilaiiit  made  by  the  chairman 
of  the  board  of  comity  comniissiouers,  before  a  justice  of  the  peace, 
that  any  person  has  come  into  the  county,  who  is  likely  to  become 
chargeable  thereto,  the  justice  by  his  warrant  shall  cause  such  poor 
person  to  be  removed  to  the  county  where  he  was  last  legally  settled ; 
but  if  such  poor  jierson  be  sick  or  disabled,  and  can  not  be  removed 
M'ithout  danger  of  life,  the  board  of  commissioners  shall  provide  for 
his  maintenance  and  cure  at  the  charge  of  the  county ;  and  after  his 
recovery  shall  cause  him  to  be  removed,  and  pay  the  charges  of  his 
removal ;  and  the  county,  wherein  he  was  last  legally  settled,  shall 
repay  all  charges  occasioned  by  his  sickness,  maintenance,  cure,  and 
removal,  and  all  charges  and  expenses  whatever,  if  such  person  shall 
die  before  removal.  And  if  the  board  of  commissioners  of  the  county, 
to  which  such  jDOor  jierson  belongs,  shall  refuse  to  receive  and  pro- 
vide for  him  when  removed  as  aforesaid,  every  commissioner  so 
refusing  shall  forfeit  and  pay  forty  dollars,  for  the  use  of  the 
county  whence  the  removal  was  made ;  moreover,  if  the  board  of 
commissioners  of  the  countj',  where  such  person  was  legally  settled, 
shall  refuse  to  pay  the  charges  and  expenses  aforesaid,  they  shall 
be  liable  for  the  same ;  and  if  any  housekeeper  shall  entertain  such 
poor  person,  and  shall  not  give  notice  thereof  to  the  board  of  commis- 
sioners of  his  county,  or  one  of  them,  within  one  montli,  the  person 
so  offending  shall  forfeit  and  pay  ten  dollars. 

Coile,   s.   -MiA?,;    R.  C,  c.   86,   s.   13;    1777.   c-.   117,   s.    17:    18.34,   c.   21. 


CHAPTEIi  24. 
COUNTY  PRISONS. 

Sections. 

I.     Jails,  1335—1341 

II.     Prisoners  kept  and  cared  for,  1342 — 1348 

III.  Of  adjoining  county  used,  1349 — 13.51 

IV.  Farming  out  prisoners,  13.52 — 13.54 
V.     Convicts  on  public  roads,  1355 — 1350 

VI.     Houses  of  correction,  1360—1372' 

VII.     Joint  houses  of  correction,  1373—1375 

I.      Jails. 

1335.  Built  and  repaired  by  commissioners.  There  shall  be  kept 

and    maintained    in   good   and    snilieient   repair  in   every   county,    a 

courthouse  and  common  jail,  at  the  expense  of  the  county,  wherein 


1335  COU^S^TY  PRISONS—/.  Jails.  Ch.  2i 

the  same  are  situated ;  and  the  boards  of  commissioners  of  the  sev- 
eral counties  respectively  shall  lay  and  collect  taxes,  from  year  to 
year,  as  long  as  may  be  necessary,  for  the  purpose  of  building, 
repairing  and  furnishing  their  several  courthouses  and  jails,  in  sucli 
manner  as  they  shall  think  proper ;  and  from  time  to  time  shall  order 
and  establish  such  rules  and  regulations  for  the  preservation  of  the 
courthouse,  and  for  the  government  and  management  of  the  prisons, 
as  may  be  conducive  to  the  interests  of  the  public,  and  the  security 
and  comfort  of  the  persons  confined. 

Code,  s.  782;  R.  C,  c.  30,  s.  1;  1741,  c.  33,  ss.  1,  2;  1795,  c.  433,  s.  1;  1S16, 
c.  911,  s.  1. 

1336.  Five  apartments.  The  common  jails  of  the  several  coun- 
ties shall  be  provided  with  at  least  five  separate  and  suitable  apart- 
ments, one  for  the  confinement  of  white  male  criminals  ;  one  for  white 
female  criminals ;  one  for  colored  male  criminals ;  one  for  colored 
female  criminals;  and  one  for  other  prisoners. 

Code,  s.  783:  R.  C,  c.  30,  s.  2;   1795,  e.  433,  s.  4;   1816,  c.  911. 

Note.     Misdemeanor  to  confine  prisoners  in  improper  apartment,  see  s.  3660. 

1337.  Heated.  It  shall  be  the  duty  of  the  board  of  commissioners 
in  every  coimty  to  have  the  common  jails  so  heated  by  furnaces, 
stoves,  or  otherwise,  as  to  render  them  warm  and  comfortable. 

Code.  s.   784;    1879,  c.   25, 

Note.     Commissioners  liable  to  indictment  for  failure  to  heat,  see  s,  3574. 

1338.  Bedding  furnished.  The  board  of  county  couunissioners, 
from  time  to  time,  as  may  be  necessary,  shall  order  the  sheriff  <:)f  the 
county  to  purchase,  for  the  use  of  their  jail,  a  certain  number  of 
good  warm  blankets  or  other  suitable  bedclothing,  which  shall  be 
securely  preserved  by  the  jailer,  and  furnished  to  the  prisoners  for 
their  use  and  comfort,  as  the  season  or  other  circumstances  may 
require ;  and  the  sheriff,  at  least  once  in  every  year,  shall  report  to 
the  board  of  commissioners  the  condition  and  number  of  such  blank- 
ets and  bedclothing. 

Code.  s.  3465;  R.  C,  c.  87,  s.  10;  1822,  c.  1136. 

1339.  Prison  bounds.  For  the  preservation  of  the  health  of  such 
persons  as  shall  be  committed  to  jail,  the  board  of  commissioners 
of  each  county  shall  mark  out  such  a  parcel  of  the  land  as  they 
shall  think  fit,  not  exceeding  six  acres,  adjoining  the  prison,  for 
the  rules  thereof;  and  every  prisoner  not  committed  for  treason  or 
felony,  giving  bond  with  good  security  to  the  shcrift'  of  the  county 
to  keep  within  the  rules,  shall  have  liberty  to  walk  therein,  out  of 
the  prison,  for  the  preservation  of  his  health ;  and  on  keeping  con- 
tinually within  the  said  rules,  shall  be  deemed  to  be  in  law  a  true 

Rev.  Vol.  1—21  385 


1339  COUXTY  PRISOXS— /.  Jails.  Ch.  24 

prisoner;  and  that  every  person  may  know  the  true  bounds  of  said 
rules,  they  shall  be  recorded  in  the  county  records,  and  the  marks 
thereof  shall  be  renewed  as  occasion  may  require. 
Code,  s.  3466;  R.  C,  c.  87,  s.   U;    1741,  c.  33,  s.  3. 

1340.  Bonds  returned  to  court.  Every  bond  taken  of  any  per- 
son confined  for  an  offense,  or  otherwise  than  on  process  issuing  in 
a  civil  case,  shall  be  returned  to  the  court  by  whose  order  or  process 
such  person  is  confined,  or  which  may  be  entitled  to  cognizance  of 
the  matter,  and  shall  be  of  the  force  and  effect  of  a  recognizance; 
and  on  breach  thereof  shall  be  forfeited,  and  shall  be  collected  as  a 
forfeiture,  in  the  name  and  for  the  use  of  the  state,  and  applied  as 
other  forfeited  recognizances. 

Code,  s.  3407;   R.  C,  e.  87,  s.   12. 

1341.  Bond  on  capias  in  civil  action.  Every  bond  given  by  any 
person  committed  in  arrest  and  bail,  or  in  custody  after  tinal  judg- 
ment, shall  be  assigned  by  the  sheriff  to  the  party  at  whose  instance 
such  person  was  committed  to  jail,  and  shall  be  returned  to  the 
office  of  the  clerk  of  the  court  where  the  judgment  was  rendered, 
and  shall  have  the  force  of  a  judgment;  and  if  any  person,  who 
shall  obtain  the  rules  of  any  prison,  as  aforesaid,  shall  escape 
out  of  the  same,  before  he  shall  have  paid  the  debt  or  damages 
and  costs  according  to  the  condition  of  his  bond,  the  court  where 
the  bond  is  filed,  upon  motion  of  the  assignee  thereof,  shall  award 
execution  against  such  person  and  his  sureties  for  the  debt  or  dam- 
ages and  costs,  with  interest  from  the  time  of  escape  till  payment; 
and  no  person  committed  to  jail  on  such  execution  shall  be  allowed 
the  rules  of  prison :  Provided,  the  obligors  have  ten  days'  previous 
notice  of  such  motion,  in  writing;  but  they  shall  not  be  admitted 
to  deny  the  making  of  the  bond  in  their  answer,  unless  by  affidavit 
they  prove  the  truth  of  the  plea. 

Code,  s.  3469;  R.  C,  c.  87,  s.  14;   1759,  e.  G5.  ss.  2,  3. 

II.     Peisoxees  Kept  axd  Caeed  foe. 

1342.  United  States  prisoners  l<ept.  When  a  prisoner  shall  be 
delivered  to  the  keeper  of  any  jail  by  the  authority  of  the  United 
States,  such  keeper  shall  receive  the  prisoner,  and  commit  him 
accordingly ;  and  every  keeper  of  a  jail  refusing  or  neglecting  to  take 
possession  of  a  prisoner  delivered  to  him  by  the  authority  aforesaid, 
shall  be  subject  to  the  same  pains  and  penalties  as  for  neglect  or 
refusal  to  commit  any  prisoner  delivered  to  him  under  the  authority 
of  the  state.     And  the  allowance  for  the  maintenance  of  any  pris- 


1342  COUNTY  PRISONS— 7/.  Prisoners  Kept.  Ch.  24 

oner  committed  as  aforesaid  shall  be  equal  to  that  made  for  pris- 
oners committed  under  the  authority  of  the  state. 

Code,  s.  3456;  R.  C,  c.  87,  s.  1;  1790,  c.  322,  ss.  1,  2. 

1343.  Jailer  to  cleanse  jail,  furnish  food  and  water.  The  sheriff 

or  keeper  of  any  jail  shall,  every  day,  cleanse  the  room  of  the  prison 
in  which  any  prisoner  shall  be  confined,  and  cause  all  filth  to  be 
removed  therefrom ;  and  shall  also  furnish  the  prisoner  plenty  of 
good  and  wholesome  water,  three  times  in  every  day;  and  shall  fur- 
nish each  prisoner  fuel,  not  less  than  one  pound  of  wholesome  bread, 
one  pound  of  good  roasted  or  boiled  flesh,  and  every  necessary  attend- 
ance. 

Code,  s.  3464;   R.  C,  c.  87,  s.  9;    1816,  c.  911,  s.  2. 

1344.  May  purchase  necessaries.  Prisoners  shall  be  allowed 
to  purchase  and  procure  such  necessaries,  in  addition  to  the  diet 
furnished  by  the  jailer,  as  they  may  think  proper;  and  to  provide 
their  own  bedding,  linen  and  clothing,  without  paying  any  perquisite 
to  the  jailer  for  such  indulgence. 

Code,  s.  3463;  E.  C,  c.  87,  9.  8;   1795,  c.  433,  s.  6. 

Note.  Jailer  injuring  prisoner  liable  for  treble  damages  and  guilty  of  mis- 
demeanor, see  s.  3661. 

1345.  Escape  apprehended,  guard;  compensation.  Whenever 

the  sheriff  of  the  county,  or  keeper  of  the  jail,  shall  apprehend  that 
there  is  danger  of  a  prisoner  escaping,  through  the  insufficiency  of 
the  jail  or  other  cause,  it  shall  be  his  duty,  without  delay,  to  make 
information  thereof  to  a  judge  of  the  superior  court,  the  attorney 
general,  or  a  solicitor,  if  any  of  those  officers  be  in  the  county,  and 
if  not,  then  to  three  justices  of  the  peace,  and  they  are  authorized, 
if  they  deem  it  advisable,  to  furnish  the  sheriff  or  keeper  of  the 
jail  with  an  order  in  writing,  addressed  to  the  commanding  olfieer 
of  the  militia  of  the  county,  setting  forth  the  danger,  and  requiring 
him  forthwith  to  furnish  such  guard  as  to  him  may  appear  to  be 
suitable  for  the  occasion.  For  which  service  the  persons  ordered  on 
guard  shall  receive  such  compensation  as  militiamen  in  actual  service 
for  defense  of  the  state;  and  on  application  for  pay,  the  letter  to  the 
commanding  officer,  on  which  the  guard  was  ordered,  and  the  cer- 
tificate of  such  officer,  countersigned  by  the  sheriff  or  jailer,  together 
with  the  deposition  of  the  officer  of  the  guard,  stating  the  time  of 
service,  and  that  it  was  faithfully  performed,  shall  be  sufficient  to 
authorize  the  payment  of  the  same. 

Code,  s.  3460;   R.  C,  c.  87,  s.  5;   1795,  c.  433,  s.  8. 

1346.  Prisoners  to  pay  charges.  Every  person  committed  by 
lawful  authority,  for  any  criminal  offense  or  misdemeanor,  shall 
bear  all  reasonable  charges  for  guarding  and  carrying  him  to  jail, 

387 


1346  COUNTY  PRISONS—//.  Prismcrs  Kept.  Ch.  24 

and  also  for  his  support  therein  until  released ;  and  all  the  estate 
which  such  person  possessed  at  the  time  of  committing  the  offense 
shall  be  subjected  to  the  jiayment  of  such  charges  and  other  prison 
fees,  in  preference  to  all  other  debts  iind  demands;  and  if  there 
be  no  visible  estate  whereon  to  levy  such  fees  and  charges,  the  amount 
shall  be  paid  by  the  county. 

Code.  s.   34G1;   R.   C,  c.  87,  s.  6;    1795,  c.  4.33,  s.  7. 

1347.  Guarding  and  removing,  by  what  county  paid.  The  ex- 
pense for  guarding  prisons  shall  be  paid  by  the  county  wherein  the 
prison  is  situated ;  and  for  conveying  prisoners,  as  also  the  expense 
attending  such  prisoners  while  in  jail,  when  the  same  may  be 
chargeable  on  the  county,  shall  be  paid  by  the  county  from  which 
the  prisoner  is  removed. 

Code,  s.  3462;  R.  C,  c.  87,  s.  7;   1808,  c.  757,  s.  2. 

1348.  Transferred  to  successor  by  indenture.  The  delivery  of 

prisoners,  by  indenture  between  the  late  and  present  sheriff,  or  the 
entering  on  record  in  court  the  names  of  the  several  prisoners,  and 
the  causes  of  their  commitment,  delivered  over  to  the  present  sheriff, 
shall  be  sufficient  to  discharge  the  late  sheriff  from  all  liability  for 
any  escape  that  shall  happen. 

Code,  s.  3470;   R.  C,  c.  87.  s.   15;   1777,  e.   118,  s.   12. 

III.     Of   Adjoining   County   Used. 

1349.  By  ministerial  officers,  when.  The  sheriffs,  constables,  and 
other  ministerial  officers  of  any  county,  in  which  there  may  be  no 
jail,  shall  have  authority  to  confine  any  prisoner  arrested  on  process, 
civil  or  criminal,  and  held  in  custody  for  want  of  bail,  in  the  jail 
of  any  adjoining  county,  until  bail  be  given  or  tendered.  And  any 
sheriff  or  jailer  having  a  prisoner  in  his  custody,  by  virtue  of  any 
mode  of  commitment  provided  in  this  chapter,  shall  be  liable,  civilly 
and  criminally,  for  his  escape,  in  the  same  manner  as  if  such  prisoner 
had  been  confined  in  the  prison  of  his  proper  county. 

Code.  •;.  3459;  R.  C,  c.  87,  s.  4;   1835,  c.  2.  s.  3. 

1350.  When  no  jail,  or  jail  unsafe.  Whenever  it  shall  happen 
that  there  shall  lie  nri  jail,  or  an  unfit  or  insecure  jail,  in  any  county, 
the  su])crior  court  judges,  justices  of  the  jieace,  and  all  judicial 
officers  of  such  county  may  commit  all  persons  who  may  be  brought 
before  them,  whether  in  a  criminal  or  civil  proceeding,  to  the  jail 
of  any  adjoining  county,  for  the  same  causes,  and  under  the  like 
regulations  that  they  might  have  ordered  commitments  to  the  usual 
jail ;  and  the  sheriffs,  constables,  and  other  officers  of  such  county. 


1350    COUNTY  PEISONS— 777.   Of  Adjoining  County.     Ch.  24 

in  which  there  may  be  no  jail,  or  an  \infit  one,  and  the  sheriffs  or 
keepers  of  the  jails  of  the  adjoining  counties,  shall  obey  any  order 
of  commitment  so  made. 

Code,  s.  3458;   R.  C,  e.  87,  s.  3;   1835,  c.  2,  s.  i. 

Note.     Failure  to  obey  order  of  commitment,  see  s.  3603. 

1351.  When  jail  destroyed.  Whenever  the  jail  of  any  coimty 
shall  be  destroyed  by  fire  or  other  accident,  any  justice  of  the  peace 
of  such  coimty  may  cause  all  prisoners  who  may  then  be  confined 
therein  to  be  brought  before  him;  and  upon  the  production  of  the 
process,  under  which  any  prisoner  was  confined,  shall  order  his 
commitment  to  the  jail  of  any  adjacent  county;  and  the  sheriff,  con- 
stable or  other  officer  of  the  county,  deputed  for  that  purpose,  shall 
obey  the  order;  and  the  sheriff  or  keeper  of  the  common  jail  of 
such  adjacent  county  shall  receive  such  prisoners  upon  the  order 
aforesaid. 

Code,  9.  3457;  R.  C,  c.  87,  s.  2;   1835,  c.  2,  s.   1. 

IV.     Faeming  Out  Peisonees. 

1352.  Counties  and  towns  may.  The  board  of  commissioners 
of  the  several  counties,  within  their  respective  jurisdictions,  or  such 
other  coitnty  authorities  therein  as  may  be  established,  and  the 
mayor  and  intendant  of  the  several  cities  and  towns  of  the  state, 
shall  have  power  to  provide  under  such  rules  and  regulations  as 
they  may  deem  best  for  the  employment  on  the  ]iublic  streets,  public 
highways,  public  works,  or  other  labor  for  individuals  or  corjiora- 
tions,  of  all  persons  imprisoned  in  the  jails  of  their  respective  coun- 
ties, cities  and  towns,  upon  conviction  of  any  crime  or  misdemeanor, 
or  who  may  be  committed  to  jail  for  failure  to  enter  into  bond  for 
keeping  the  peace  or  for  good  behavior,  and  who  fail  to  pay  all  the 
costs  which  they  are  adjudged  to  pay,  or  to  give  good  and  sufficient 
security  therefor:  Provided,  such  prisoner  or  convict  shall  not  be 
detained  beyond  the  time  fixed  by  the  judgment  of  the  court:  Pro- 
vided further,  the  amoimt  realized  from  hiring  out  such  persons  shall 
be  credited  to  them  for  the  fine  and  bill  of  costs  in  all  cases  of  convic- 
tion: Provided  also,,  it  shall  not  be  lawful  to  farm  out  any  such  con- 
victed person  who  may  be  imprisoned  for  the  nonpayment  of  a 
fine,  or  as  punishment  imposed  for  the  offense  of  which  he  may 
have  been  convicted,  luiless  the  court  before  whom  the  trial  is  had 
shall  in  its  judgment  so  authorize. 

Code,  s.  3448;  1866-7,  c.  30;  1872-.3,  c.  174,  s.  10;  1874-5,  c.  113;  1876-7, 
e.  106,  s.  1;   1879,  c.  218. 


1353   COUNTY  PEISOKS— 7F.  Farming  Out  Prisoners.   Ch.  24 

1353.  Party  hiring  may  prevent  escape.  The  party  in  whose 

ser^'ice  said  convicts  may  be,  may  use  the  necessary  means  to  hold 
and  keep  them  in  custody,  and  to  prevent  their  escaj^e. 
Code,  s.  3454;   1876-7,  e.  196,  s.  3. 

1354.  Sheriff  has  control.  All  convicts  hired  or  farmed  out  by 
the  county  or  other  municipal  authorities  shall  at  all  times  be  under 
the  supervision  and  control,  as  to  their  government  and  discipline, 
of  the  sheriff,  or  his  depiity,  of  the  county  in  which  they  were 
convicted  and  imprisoned,  and  the  sheriff,  or  his  deputy,  shall  be 
deemed  a  state  officer  for  the  purpose  of  this  section. 

Code,  s.  3453;  1S76-7,  c.  196,  s.  2. 

V.     Convicts   on   Public  Roads. 

1 355.  What  convicts  so  sentenced.  When  any  county  has  made 
provision  for  the  working  of  convicts  upon  the  public  roads^  or 
when  any  number  of  counties  have  jointly  made  provision  for  work- 
ing convicts  upon  the  public  roads,  it  shall  be  lawful  for,  and  the 
duty  of  the  judge  holding  court  in  such  counties,  to  sentence  to 
imprisonment  at  hard  labor  on  the  public  roads  for  such  terms 
as  are  now  prescribed  by  law  for  their  imprisomnent  in  the  county 
jail  or  in  the  state's  prison,  the  following  classes  of  convicts:  First,  all 
persons  convicted  of  offenses  the  punishment  whereof  would  other- 
wise be  wholly,  or  in  part,  imprisonment  in  the  common  jail ;  sec- 
ond, all  persons  convicted  of  crimes  the  punishment  whereof  would 
otherwise  whollj'  or  in  part  be  imprisonment  in  the  state's  prison 
for  a  term  not  exceeding  ten  years.  In  such  counties  there  may 
also  be  worked  on  the  public  roads,  in  like  manner,  all  persons  sen- 
tenced to  imprisonment  in  jail  by  any  magistrate,  and  also  all 
insolvents  who  shall  be  imprisoned  by  any  court  in  said  counties  for 
nonpayment  of  costs  in  criminal  causes  may  be  retained  in  impris- 
onment and  worked  on  the  public  roads  until  they  shall  have  repaid 
the  county  to  the  extent  of  the  half  fees  charged  up  against  the 
county  for  each  person  taking  the  insolvent  oath.  The  rate  of  com- 
pensation to  be  allowed  each  insolvent  for  work  on  the  ])ublic  roads 
shall  be  fixed  by  the  county  conunissioners  at  a  just  and  fair  com- 
pensation, regard  being  had  to  the  amount  of  work  of  which  each 
insolvent  is  capable. 

1887,  c.  355;    1889,  c.  419. 

1356.  Under  control  of  county  authorities.  The  convicts  sen- 
tenced to  hard  labor  upon  the  piiblic  roads,  imder  the  provisions  of 
the  preceding  section,  shall  be  under  the  control  of  the  county 
authorities,   and  the  county  authorities  shall  have  power  to  enact 


1356    COUNTY  PEISONS— F.   Convicts  on  Pub.  Iloads.    Ch.  24 

all  needful  rules  and  regulations  for  the  successful  working  of 
convicts  upon  the  public  roads:  Provided,  the  county  commission- 
ers shall  have  power  to  work  such  convicts  on  the  public  roads  or 
in  canaling  the  main  drains  and  swamps  or  on  other  public  work  of 
the  county. 

1887,  c.  355,  s.  2;   1891,  c.  164. 

1357.  When  sentenced  to  state's  prison.  In  all  cases  where  the 

judge  presiding  shall  be  satisfied  that  there  is  good  reason  to  fear 
that  an  attemjat  might  be  made  to  release  or  to  injure  any  person 
convicted  of  any  of  the  offenses  mentioned  in  the  second  class, 
it  shall  be  lawful  for  the  judge  to  sentence  such  convicts  to  imprison- 
ment in  the  state's  prison,  as  is  now  provided  by  law:  Provided,  that 
no  person  who  has  been  convicted  and  sentenced  on  a  charge  of 
murder,  manslaughter,  rape,  attempt  to  commit  rape,  or  arson^  shall 
be  assigned  to  county  roads  under  this  chapter. 
1887,  c.  355,  s.  4. 

1358.  When  state's  prison  to  send  convicts  to  county.  In  addi- 
tion to  the  convicts  mentioned  in  section  one  thousand  three  hundred 
and  fifty-five,  the  board  of  directors  of  the  state's  prison  is  authorized 
and  directed  to  furnish  to  the  authorities  of  any  county  within  the 
state,  convicts,  not  exceeding  twenty-five  in  number  during  any  one 
year,  for  the  purpose  of  working  the  public  roads  in  said  county.  The 
said  convicts  shall  be  at  all  times  under  the  supervision  and  control  as 
to  their  government  and  discipline  of  the  board  of  directors  of  the 
state's  prison  as  in  case  of  hiring  convicts  to  railroad  companies. 
Any  county  applying  for  convicts  under  this  chapter  shall  erect  suit- 
able stockades  for  their  safe-keeping  and  protection,  and  shall  pay 
the  expense  of  their  transportation  from  and  to  the  state's  prison. 

1887,  c.  355,  s.  5. 

1359.  Taxes  levied  to  maintain.  The  board  of  county  commis- 
sioners of  the  several  counties  in  the  state  taking  advantage  of  this 
chapter  shall  levy  a  special  tax  annually  as  other  taxes  are  levied 
for  the  purpose  of  paying  the  expenses  of  said  convicts,  building  of 
stockades,  etc.,  and  the  expenses  shall  be  paid  by  the  counties  taking 
advantage  of  this  subchapter. 

1887,  c.  355,  s.  6. 


I  Note.     For  prohibition  of  women  working  on  roads,  see  s.  3596. 

VI.     Houses  of  Coeeection. 

LI  360.     Commissioners   may   establish.     The  board  of  commis- 
sioners mav,   when   they   deem   it  necessary,   establish  within   their 


391 


13C0     COUNTY  PEISONS— TV.  Houses  of  Correction.     Cli.   24 

respective  coiiiities,  one  or  more  couvenient.  houses  of  correction; 
with  work  shops  and  other  suitable  buildings  for  the  safe  keci)ing, 
correcting,  governing,  and  employing  of  offenders  legally  committed 
thereto.  They  may  also,  to  that  end,  procure  machinery  and  mate- 
rial suitable  for  such  employment  in  said  houses,  or  on  the  premises; 
and  moreover  attach  thereto  a  farm  or  farms;  and  all  lands  pur- 
chased for  the  purposes  aforesaid,  shall  vest  in  the  directors  here- 
inafter provided  for,  and  their  successors  in  office.  The  said  board 
shall  also  have  power  to  make,  from  time  to  time,  such  rules  and 
regulations  as  it  may  deem  proper,  for  the  kind  and  mode  of  labor, 
and  the  general  management  of  the  said  houses. 
Code,  s.  786;   1866,  c.  35,  s.  1. 

1361.  Taxes  may  be  levied.  The  board  of  commissioners,  in 
addition  to  the  ordinary  county  taxes,  shall  also,  at  the  time  said 
taxes  are  laid,  lay  such  t.ax  as  may  be  necessary  to  can-y  into  eft'ect 
this  subchapter,  which  shall  be  collected  and  paid  to  the  manager  at 
the  same  time  as  other  county  taxes  are  to  be  paid;  for  which,  and 
such  other  funds  as  may  come  into  his  hands  as  manager,  he  shall 
be  accountable;  and  he  shall  disburse  the  same  under  the  authority 
of  the  directors. 

Code,  s.  rnO;   1860,  c.  35,  s.  5. 

1362.  Bonds  may  be  issued.  The  board  of  commissioners  may, 
if  deemed  advisable  by  them,  issue  county  bonds  to  raise  money 
to  establish  the  houses  and  farms  herein  provided  for. 

Code,  s.  796;  1866,  c.  35,  s.  11. 

1363.  Governor  notified  of  establishment  of.    Whenever  any 

work  house  or  house  of  correction  shall  be  established  in  pursuance  of 
this  chapter,  it  sliall  be  the  duty  of  the  chairman  of  the  board  of 
commissioners  of  the  county  wherein  the  same  shall  be  established, 
to  certify  the  fact  to  the  governor,  who  shall  cause  it  to  be  noted 
in  a  book  kept  for  that  purpose. 
Code,  s.  797;   1866,  c.  35,  s.   12. 

1364.  Directors  appointed;  duties.  The  board  of  commissioners 
shall,  annually,  apjioint  not  less  than  five  nor  more  than  nine  direc- 
tors for  each  house  of  correction  which  may  be  established,  whose 
duty  it  shall  be  to  siiperintend  and  direct  the  manager  hereinafter 
named  in  the  discharge  of  his  duties;  to  visit  said  houses  at  least 
once  in  every  three  months;  to  see  that  the  laws,  rules  and  regulations 
relating  thereto  are  duly  e.xecTited  and  enforced,  and  that  the  ])ersons 
committed  to  his  charge  are  properly  cared  for,  and  not  abused  or 
oppressed.  The  directors  shall  keep  a  journal  of  their  proceedings, 
and  publish  annually  an  account  of  the  receipts  and  expenditures. 


ir.Oi     COU^s^TY  PRISON'S— F/.  Houses  of  Correction.     Ch.  24 

They  shall  further  make  a  quarterly  report  to  their  respective  county 
commissioners  of  the  general  condition  of  their  charge,  and  of  the 
receipts  and  expenditures  of  the  institution.  They  shall  also  make 
such  by-laws  and  regulations  for  the  government  thereof  as  shall 
be  necessary,  which  shall  be  reported  to,  and  approved  by,  the  said 
commissioners.  The  directors  shall  be  paid  for  the  services  rendered 
by  the  county  treasurer,  each  director  first  making  it  appear  to  the 
satisfaction  of  the  board  of  county  commissioners,  by  his  oath,  the 
character  and  extent  of  the  services  rendered  for  which  he  claims 
compensation;  and  such  payment  shall  be  made  by  the  county  treas- 
urer out  of  any  funds  in  his  hands  not  otherwise  appropriated. 
Code,  s.  787;  1866,  c.  35,  s.  2. 

1365.  Term  of  office  of  directors.  The  directors  shall  continue 
in  office  until  others  shall  be  appointed;  and  if  any  vacancy  happens 
among  them,  it  shall  be  filled  by  the  residue  of  the  directors. 

Code,  s.  795;   1866,  e.  35,  s.  10. 

1366.  IVIanager  appointed;  bond  given.  The  board  of  commis- 
sioners shall  appoint  a  manager  for  each  house  or  establishment, 
who  shall  give  a  bond,  with  two  or  more  solvent  sureties,  in  such  sum 
as  may  be  required^  payable  to  the  state  of  North  Carolina,  condi- 
tioned for  the  faitliful  discharge  of  his  duties.  He  shall  hold  his 
office  during  the  pleasure  of  the  board,  and  be  at  all  times  under 
the  supervision  of  the  directors;  and  in  case  of  his  misconduct,  of 
which  they  shall  be  the  sole  judges,  he  may  be  forthwith  removed 
by  them  and  a  successor  appointed,  who  shall  discharge  the  duties  of 
the  office  until  another  manager  shall  be  appointed  by  the  board  of 
commissioners.  It  shall  be  the  duty  of  the  manager  to  receive  all 
persons  sent  to  the  house  of  correction,  to  keep  them  during  the  time 
of  their  sentence,  and  to  employ  and  control  them  according  to  the 
rules  and  regulations  established  therefor.  He  shall  have  the  direc- 
tion and  control  over  the  subordinate  officers,  assistants  and  ser- 
vants, who  may  be  appointed  by  the  directors.  He  shall  make 
monthly  reports  to  the  directors  of  his  maiiagement  of  the  institu- 
tion and  his  receipts  and  expenditures. 

Code,  s.  788:    1866,  e.  35,  s.   3. 

1367.  IVIanager  to  assign  employment.  Tiie  manager  shall  as- 

sigTi  to  each  person  sent  to  the  work  hoiise  the  kind  of  work  in  which 
such  person  is  to  be  employed. 

Code,   s.   794;    1866,  c.   35,   s.   9. 

1368.  Compensation  of  officers.  The  said  board  of  commission- 
ers shall  direct  what  compensation  the  manager  and  such  subordinate 


1368     COUNTY  PRISONS— F7.  Houses  of  Correction.     Ch.  24 

officers,  assistants  and  servants,  as  shall  be  appointed,  shall  receive, 
and  shall  pi-ovide  the  payment  thereof. 

Code,  s.  789;    18G6,  e.  35,  s.  4. 

1369.  Sheriff  to  convey  persons  committed.  Whenever  any 

person  shall  be  sentenced  to  a  work  hmise,  he  shall  forthwith  be 
committed  by  the  court  to  the  custody  of  the  sheriff,  to  whom  the 
clerk  shall  immediately  furnish  a  certified  copy  of  the  sentence,  in 
which  it  shall  be  stated  (if  the  fact  be  so)  that  the  offender  is  com- 
mitted as  a  vagrant  The  sheriff  shall  convey  the  offender  to  the 
work  house,  and  deliver  him  to  the  manager  with  the  certified  copy 
aforesaid,  and  take  the  manager's  receipt  for  the  body ;  which 
receipt  the  sheriff  shall  return  to  the  clerk  of  the  board  of  commis- 
sioners, with  his  indorsement  of  the  times  when  the  offender  was 
committed  to  him  and  delivered  to  the  manager,  and  the  clerk  shall 
record  the  same  in  a  book  kept  for  that  pur|30se,  and  file  the  original 
with  the  papers  in  the  case. 
Code,  s.  703;   1866,  c.  35,  s.  8. 

1370.  Absconding  offenders  punished.    If  any  offender  shall 

abscond,  escape  or  depart  fi'om  any  house  of  correction  without 
license,  the  manager  shall  have  power  to  pursue,  retake  and  bring 
him  back,  and  to  require  all  necessary  aid  for  that  piirpose;  and 
when  brought  back,  the  manager  may  confine  him  to  his  work  by 
fetters  or  shackles;  or  in  such  manner  as  be  may  judge  necessary, 
or  may  put  him  in  close  confinement  in  the  county  jail  or  elsewhere, 
until  he  shall  submit  to  the  regulations  of  the  house  of  correction ; 
and  for  every  escape  each  offender  shall  be  held  to  lalxir  in  the 
house  of  correction  for  the  term  of  one  month  in  addition  to  the 
time  for  which  he  was  first  committed. 
Code,  s.  791;   1866,  c.  35,  s.  6. 

1371.  Vagrants  may  be  released,  when.  If  any  person  com- 
mitted as  a  vagTant  shall  behave  well  and  reform,  he  may,  on  the  cer- 
tificate of  the  manager,  be  released  by  the  directors.  Hut  if  other- 
wise committed,  he  may  be  released  by  the  committing  authority, 
upon  the  certificate  of  the  manager  and  directors,  upon  such  condi- 
tions as  they  may  deem  proper. 

Code,  s.  792;  1866,  c.  35,  s.  7. 

1372.  Suits  in  name  of  county.  All  suits  brought  on  behalf  of 
the  institution  sliall,  unless  it  l)c  otherwise  prescribed,  be  brought  in 
the  name  of  the  county,  to  the  use  of  the  directors  of  the  A\'ork  house, 
without  designating  such  directors  by  name. 

Code,  s.  798;   1866,  e.  35,  s.   13. 


394 


1373     COUNTY  PKISONS— 7//.  Joint  Houses  Correc.     Ch.  24 

VII.     Joint  Houses  of  Cokrection. 

1373.  Two  or  more  may  join.  Any  two  or  more  counties,  acting 
through  their  respective  boards  of  commissioners,  may  jointly  estab- 
lish one  or  more  convenient  bouses  of  con-ection,  as  is  provided  in  tbe 
preceding  sections,  for  tbe  joint  use  of  tbe  counties  so  agTeeing 
together;  and  tbe  same  may  be  established  at  such  place  or  places, 
and  be  in  all  respects  managed  under  such  by-lav^s,  iniles  and  regu- 
lations as  a  majority  of  the  general  board  of  directors,  to  be  appointed 
as  hereinafter  directed,  shall  determine. 

Code,  s.  799;   1866-7,  e.  130,  s.  1. 

1374.  Board  of  directors  appointed.  The  board  of  commission- 
ers of  each  of  the  respective  counties  agreeing  as  aforesaid  to  tbe 
establishment  of  one  or  more  houses  of  correction  for  use  jointly 
with  any  other  county  or  counties  shall  annually  appoint  five  direc- 
tors in  behalf  of  their  several  counties,  and  the  directors  so  appointed 
by  each  of  such  counties  shall  together  constitiite  the  general  board  of 
directors  of  any  such  joint  establishment. 

Code,  s.  800;   1866-7,  e.  130,  s.  2. 

1375.  General  managers  appointed.  Said  general  board  of  direc- 
tors shall  appoint  a  manager  or  superintendent  for  every  such  joint 
establishment,  and  such  assistants  and  servants  as  they  may  deem 
necessary.  The  manager  shall  give  bond  with  two  or  more  able 
sureties,  to  be  approved  by  said  board,  in  such  sum,  as  may  be 
required,  payable  to  tlie  state  of  North  Carolina,  and  conditioned 
for  the  faithful  performance  of  bis  duties.  He  shall  bold  his  oifice 
during  the  pleasure  of  the  general  board  of  directors,  and  be,  at  all 
times,  under  their  supervision ;  and  of  bis  misconduct  they  shall 
be  the  sole  judges,  and  they  may  at  any  time  remove  him.  He 
shall  perform  all  such  duties  as  may  be  prescribed  by  such  general 
board  of  directors,  and  all  such  as  may  be  incident  to  tbe  office 
of  manager  by  virtue  of  this  chapter.  Tlie  compensation  of  tbe 
manager  and  such  subordinate  officers,  assistants  and  servants,  as 
may  be  appointed  by  the  general  board,  shall  be  fi.xed  by  said  general 
board. 

Code,  s.  801;   1866-7,  c.   130,  r..  3. 


137G         COUNTY  REVENUE—/.  Taxes  and  Fines.         Ch.  25 


CHAPTEE  25. 
COUNTY  REVENUE. 

Sections. 
I.     Taxes  and  fines,  1370—1.379 

II.     Reports  of  officers,  '  1380—1383 

III.  Claims,  1384—1388 

IV.  Finance  committee,  1389—1393 

I.     Ta:ses  and  Fines. 

1 376.  Taxes  collected  by  sheriff.  The  county  taxes  shall  be  col- 
lected by  the  sberiii'  of  the  cotmty,  who  shall  be  entitled  to  the  same 
commissions  and  be  subject  to  the  same  rules  and  regulations  in 
respect  to  his  settlement  of  the  said  taxes  with  the  county  treasurer 
as  he  is  in  his  settlement  of  the  public  taxes  with  the  treastirer  of  the 
state;  and  he  shall  also  settle  with  the  county  treasurer  or  board  of 
commissioners  for  the  taxes  on  the  unlisted  property  in  his  county, 
under  the  same  rules  and  regulations  as  he  accounts  with  the  auditor 
of  the  state. 

Code,  s.  723;   R.  C.  c.  28,  s.  2;    1798,  c.  509,  s,  2;   1811,  c.  823. 

1377.  Statement  of  fines  kept  by  clerk.  It  shall  be  the  duty  of 

tlie  clerks  of  the  scvernl  courts,  and  of  the  several  justices  of  the 
peace,  to  enter  in  a  book,  to  be  supplied  by  the  county,  an  itemized 
and  detailed  statement  of  the  respective  amounts  received  by  them 
in  the  way  of  fines,  penalties,  amercements  and  forfeitures,  and  said 
books  shall  at  all  times  be  open  to  the  inspection  of  the  public. 

Code,  s.   72.5;    1873-4,  c.   116,  s.  4;    1879,  c.   96,  s.    1. 

1378.  Fines  paid  treasurer,  when;  for  schools.  All  fines,  for- 
feitures, penalties  and  amercements  collected  in  the  several  counties 
by  any  court  or  otherwise,  shall  be  accounted  for  and  paid  to  the 
county  treasurer  by  the  officials  receiving  them  within  sixty  days 
after  receipt  thereof,  and  shall  be  faithfully  a]ipropriated  by  the 
county  board  of  education  for  the  establishment  and  maintenance  of 
free  public  schools;  and  the  amounts  collected  in  each  county  shall 
be  annually  reported  to  the  superintendent  of  iniblic  instruction  on 
or  before  the  first  Monday  in  -Tauuary,  by  tlie  Iward  of  commis- 
sioners. 

Const.,  Art.  IX,  s.  5;  Code,  ss.  724,  726;  R.  C,  c.  28.  s.  3;   1879,  c.  96,  ss.  2,  5. 

1379.  Commissioners  expend  county  funds.  The  board  of  com- 
missioners is  invested  with  full   jiower  t(^  direct  the  application  of 


1379         COUNTY  REVENUE—/.   Taxes  and  Fines.         Ch.  25 

all  moneys  arising  by  virtue  of  this  chapter  for  the  purposes  herein 
mentioned,  and  to  any  other  good  and  necessary  purpose  for  the  use 
of  the  county. 

Code,  s.  753;  R.  C,  e.  28,  s.  16;   1777,. c.  129,  s.  4. 

II.     Reports  of  Officers. 

1380.  Made  annually.  Sheriffs,  treasurers,  clerks  of  any  court, 
registers  of  deeds  and  all  other  officers  of  the  several  counties,  into 
whose  hands  any  public  funds  may  come  by  virtue  or  under  color 
of  their  oifice,  shall  make  an  annual  account  and  report  of  the  amount 
and  management  of  the  same,  on  the  first  Monday  of  December,  or 
oftener  if  required,  in  each  year,  to  the  board  of  commissioners. 
Such  report  shall  give  an  itemized  and  detailed  account  of  the  public 

_  funds  received  and  disbursed,  the  amount,  date  and  source  from 
which  it  was  received,  and  the  amount,  date  and  person  to  whom 
paid  ;  shall  be  addressed  to  the  chairman  of  the  board  of  commission- 
ers for  the  county,  and  shall  be  subscribed  and  verified  by  the  oath 
of  the  party  making  the  same,  before  any  person  authorized  to 
administer  oaths. 

Code,  s.  728;    1874-5,  c.   151,  s.   1;    1870-7,  c.  276,  s.  1. 

1381.  Compelled.  If  any  person  required  to  make  any  of  the 
reports  hereinbefore  provided  for  shall  fail  to  do  so,  or  if,  after  a 
report  has  been  made,  the  board  of  commissioners  shall  disapprove  the 
same,  such  board  may  take  such  legal  steps  to  compel  a  proper  report 
to  be  made,  either  by  suit  on  the  bond  of  such  officer  failing  to  com- 
ply or  otherwise,  as  said  board  may  deem  best. 

Code,  s.  730;   1874-5,  e.  151,  s.  3;   1876-7,  e.  276,  s.  3. 

1382.  Registered.  The  board  of  commissioners,  if  it  shall  ap- 
prove of  any  of  the  said  reports,  shall  cause  the  same  to  be  regis- 
tered in  the  office  of  the  register  of  deeds  in  a  book  to  be  furnished 
to  the  register  of  deeds  by  the  county,  which  book  shall  be  marked 
and  styled  "Record  of  Official  Reports,"  with  a  proper  index  of  all 
reports  recorded  therein,  and  each  official  reiDort  shall,  if  approved, 
be  indorsed  by  the  ehainnan  of  the  board  with  the  word  "approved,'' 
with  the  date  of  approval,  and  when  recorded  by  the  register  of  deeds 
he  shall  indorse  thereon  the  date  of  registration,  the  page  of  the 
Record  of  Official  Reports  upon  which  the  same  is  registered,  sign 
the  same  and  file  it  in  his  office. 

Code,  a.  729;   1874-5,  c.  151,  s.  2;   1876-7,  c.  276,  s.  2. 

1383.  Penalty  for  failure  to  make.  If  any  clerk,  sheriff,  justice 
of  the  peace,  or  other  officer,  shall  fail  or  neglect  to  account  for  and 
pay  over  as  required  by  law  any  taxes  on  suits,  or  any  fines,  forfeit- 

397 


1383       COUNTY  REVENUE—//.  Eeports  of  Officers.       Ch.  25 

ures  and  amercements  as  required  by  this  chapter,  or  shall  fail  to 
make  the  returns  herein  specified,  he  shall  forfeit  and  pay  five  hun- 
dred dollars,  to  be  reco\ered  in  the  name  of  the  board  of  commis- 
sioners for  the  use  of  the  public  schools  of  the  county. 

Code,  s.  764;  E.  C.  c.  28.  s.  7:  1808,  c.  756;  1809,  c.  769;  1813,  c.  864;  1830, 
c.  1,  ss.  11-13. 

III.       Cl-AIMS. 

1384.  Demand  before  suit.  No  person  shall  sue  any  city,  county, 
town,  or  other  municipal  cor|ioration  for  any  debt  or  demand  whatso- 
ever unless  the  claimant  shall  have  made  a  demand  upon  the  proper 
municipal  authorities.  And  every  such  action  shall  be  dismissed 
unless  the  complaint  shall  be  verified  and  contain  the  following  alle- 
gations: (1)  That  the  claimant  presented  his  claim  to  the  lawful 
municipal  authorities  to  be  audited  and  allowed,  and  that  they  had- 
neglected  to  act  upon  it,  or  had  disallowed  it;  or  (2)  that  he  had 
presented  to  the  treasurer  of  said  municipal  corporation  the  claim 
sued  on,  which  had  been  so  allowed  and  audited,  and  that  such 
treasurer  had  notwithstanding  neglected  to  pay  it. 

Code,  s.  7.57. 

Note.     For  time  in  which  such  demand  and  action  shall  be  brought,  see  s.  396. 

1385.  Itemized  and  verified.  No  account  shall  be  audited  by  the 
board  for  any  sendees  or  disbursements,  unless  it  is  first  made  out 
in  items  and  has  attached  to  and  filed  with  it  the  affidavit  of  the 
claimant  that  the  ser^dces  therein  charged  have  been  in  fact  made 
and  rendered,  and  that  no  part  thereof  has  been  paid  or  satisfied. 
Each  account  shall  state  the  nature  of  the  services,  and  where  no 
specific  compensation  is  pi-ovided  by  law,  it  shall  also  state  the  time 
necessarily  devoted  to  the  performance  thereof.  The  board  may  dis- 
allow or  require  further  evidence  of  the  account,  notwithstanding 
the  verification.  All  county  commissioners  acting  on  January  the 
twenty-seventh,  one  thousand  nine  hundred  and  five,  or  elected  there- 
tofore, are  released,  whether  as  individuals  or  in  their  corporate 
capacity,  from  any  and  all  penalties  incurred  by  reason  of  failure  to 
comply  with  the  provisions  of  this  section,  prior  to  said  date. 

Code,  8.  754;  1905,  c.  55;  1868.  c.  20,  s.  10. 

1386.  Numbered  as  presented.  All  accounts  presented  in  any 
year,  beginning  at  each  regular  meeting  in  December,  shall  be  num- 
bered from  one  upwards,  in  the  order  in  which  they  are  ]iresented, 
and  the  time  of  presentation,  the  names  of  the  persons  in  whose 
favor  they  are  made  out,  and  by  whom  presented,  and  shall  ho  care- 
fully entered  on  the  minutes  of  the  board  ;  and  no  such  account  shall 
be  withdrawn  from  the  custody  of  the  board  or  its  clerk,  except  to  be 


1386  COUNTY  REVEKUE— ///.  Claims.  Ch.  25 

used  as  evidence  in  a  judicial  proceeding,  and  after  being  so  used 
it  shall  be  promptly  returned. 

Code,  s.  755;   18G8,  c.  20,  s.  12. 

1387.  Numbered  as  allowed,  when.  The  clerk  of  the  board  of 

commissioners,  if  so  ordered  by  the  board,  shall  numA)er  all  claims, 
orders  and  certificates  that  may  be  allowed  by  the  board  in  a  book 
kept  for  that  purpose,  and  he  shall  annuially,  the  day  before  the 
board  proceeds  to  lay  a  county  tax  for  the  ensuing  yeai-,  furnish 
the  chairman  of  the  board  with  a  copy  of  the  same. 
Code,  s.  751;  R.  C,  c.  28,  s.  12;   1793,  c.  387. 

1388.  Annual  statement  published.  The  board  shall  cause  to  be 
posted  at  the  courthouse  within  five  days  after  each  regular  Decem- 
ber meeting  and  for  at  least  four  successive  weeks,  or  after  each  regu- 
lar monthly  meeting,  if  they  deem  it  advisable,  and  for  one  week,  the 
name  of  every  individual  whose  account  has  been  audited,  the  amount 
claimed  and  the  amount  allowed ;  and  also  at  the  same  time  and  in  the 
same  manner  post  a  full  statement  of  county  revenue  and  charges, 
showing  by  items  the  income  from  every  source  and  the  disbursements 
on  every  account  for  the  past  year,  together  with  the  permanent  debt 
of  the  county,  if  any,  when  contracted,  and  the  interest  paid  or  re- 
maining unpaid  thereon.  The  board  shall  also  publish  the  said 
statement  in  some  newspaper  in  the  county :  Provided,  the  cost  of 
such  publication  shall  not  exceed  one-half  of  a  cent  a  word. 

Code,  s.  752;  1901,  c.  196;  1905,  c.  227. 

IV.     Finance   Committer. 

1389.  Election  and  duties.  The  board  of  commissioners  may 
elect  by  ballot  three  discreet,  intelligent  tax-paying  citizens,  to  be 
known  as  the  "finance  committee,"  whose  duty  it  shall  be  to  inquire 
into,  investigate  and  report  by  public  advertisement,  at  the  court- 
house and  one  public  place  in  each  township  of  the  county,  or  in  a 
newspaper,  at  their  option,  if  one  he  published  in  the  county,  a 
detailed  and  itemized  account  of  the  condition  of  the  county  finances, 
together  with  any  other  information  appertaining  to  any  fimds,  mis- 
appropriation of  county  funds,  or  any  malfeasance  in  ofiice  by  any 
covmty  officers. 

Code,  s.  758;  1897,  c.  513;  R.  C,  c.  28,  s.  17;  1838,  c.  31,  s.  1;  1871-2,  e.  71,  s.  1. 

1 390.  Oath.  The  members  of  the  finance  committee  before  enter- 
ing upon  their  duties  shall,  before  the  clerk  of  the  superior  court, 
subscribe  to  the  following  oath  or  affirmation: 

"I,  A.  B.,  do  solemnly  swear   (or  affirm)   that  I  will  diligently 


1390     COUNTY  EEVEXUE— 7T.  Finance  CommUtce.     Ch.   25 

inquire  into  all  matters  relating  to  the  receipts  and  disbursements 
of  county  funds  and  a  true  report  make,  without  partiality.  So  help 
me,  God." 

Code,  s.  762;  1871-2,  c.  71.  s.  4. 

1391.  Powers  of.  The  finance  committee  shall  have  power  and 
authority  to  seiul  for  ])ersons  and  papers,  and  to  administer  oaths; 
and  any  person  failing  to  obey  their  summons,  or  to  produce  promptly 
any  paper  relating  or  supposed  to  relate  to  any  matter  appertaining 
to  the  duties  of  the  finance  committee,  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  in  the  superior  court,  shall  be  fined  and 
imprisoned  at  the  discretion  of  the  court. 

Code,  s.  759;  1831.  c.  31;  1871-2,  c.  71,  s.  2;  R.  C,  c.  28,  s.  17;  1883,  c.  252. 

1392.  Penalty  on  officer  failing  to  settle.  If  any  clerk,  sheriff, 

constable,  county  treasurer,  register  of  deeds,  justice  of  the  peace, 
or  other  officer  or  commissioner,  who  may  hold  any  county  money, 
shall  fail  duly  to  accoimt  for  the  same,  the  finance  committee  shall 
give  such  person  ten  days'  previous  notice,  in  wTiting,  of  the  time 
and  place  at  which  they  will  attend  to  make  a  settlement;  and  every 
ofiieer  receiving  notice  and  failing  to  make  settlement  as  required 
by  this  chapter  shall  forfeit  the  sura  of  five  hundred  dollars,  to  be 
sued  for  in  the  name  of  the  state  and  prosecuted  for  the  use  and  at 
the  expense  of  the  county,  unless  the  court  shall  release  the  officers 
from  the  forfeiture. 

Code,  s.  760;  R.  C,  c.  28,  s.  19;   1831,  c.  31,  s.  3. 

1393.  Statement  by,  published.    It  shall  be  the  duty  of  the 

finance  committee  to  make  and  publish  their  report  as  hereinbefore 
directed  on  or  before  the  first  Monday  of  Deceuibor  in  each  year. 
Code,  s.  761;  1871-2,  c.  71,  s.  3. 

Note.     For  criminal  costs  for  which  county  is  liable,  see  s.  1283  et  seq. 

For  general  revenue  act,  see  Vol.  II,  Revenue. 

For  statute  of  limitations  in  claim  against  countv,  see  s.  396. 


139i  COUNTY  TEEASUREE.  Ch.  2G 

CHAPTEE  26. 
COUNTY  TREASURER. 

(Sections  1394—1407.) 

1394.  When  elected.  In  each  county  there  shall  be  elected  bien- 
nially by  the  qualitied  voters  thereof,  as  provided  for  the  election 
of  members  of  the  general  assembly,     *     *     *     a  treasurer. 

Const.,  Art.  VII,  s.  1. 

1395.  How  abolished.  The  jiistices  of  the  peace  in  any  county 
may  abolisli  the  office  of  county  treasurer;  and  thereupon  the  duties 
and  liabilities  attaclied  to  the  oiSce  shall  devolve  upon  the  sheriff, 
who  shall  be  ex  officio  county  treasurer.  And  in  any  county  where 
the  office  of  treasurer  has  been  abolished,  the  justices  of  the  peace 
may  also,  if  they  shall  deem  it  expedient  to  do  so,  restore  the  office 
of  treasurer. 

Code,  s.  768;  R.  C,  e.  29,  s.   10;    185-2,  c.  6;    1876-7,  c.   141;    1881,  c.  362. 

1396.  Includes  person  acting  as  such;  treasurer  of  county 

board  of  education.  The  office  of  county  tveasurrr  shall  always  be 
construed  to  refer  to,  and  include,  the  person  authorized  by  law  to 
perform  the  dutie-s  of  that  office  in  any  county,  if  there  is  no  county 
treasurer  therein.  The  county  treasurer  shall  be  ex  officio  the  treas- 
urer of  the  county  Iward  of  education. 
Code,  s.  770. 

1397.  Sheriff  acting  as  such,  bond  liable.  In  counties  where  the 

office  of  county  treasurer  may  be  abolished,  and  where  the  sheriff 
is  authorized  to  perfonn  the  duties  of  county  treasurer,  the  bond 
lie  gives  as  sheriff  shall  be  construed  to  include  his  liabilities  and 
duties  as  such  county  treasurer,  and  may  be  increased  to  such  amount 
by  the  board  of  commissioners  as  may  be  deemed  necessary  to  cover 
the  trust  funds  coming  to  his  hands. 

Code,   s.   7G9;    1879,  e.   202. 

1398.  Duties.    It  shall  be  the  duty  of  the  treasurer — 

1.    TO    KEEP    COUNTY    MONEYS. 

To  receive  all  moneys  belonging  to  the  county,  and  all  other 
moneys  by  law  directed  to  be  paid  to  him,  to  keep  them  separate 
and  apart  from  his  own  affairs,  and  to  ap]ily  tlieni  and  render  account 
of  them  as  required  by  law. 

Rev.  Vol.  1—22  401 


1398  COUNTY  TREASUKER.  Ch.  26 


2.    TO    KEEP    TRUE    ACCOUNTS. 

To  keep  a  true  aceoimt  of  the  receipts  and  exiientlitures  of  all 
siieh  money's,  taking  proper  \'oncliers  in  cverj'  case  in  books  provided 
for  that  purpose  at  the  expense  of  the  county ;  which  said  Ixioks  shall 
at  all  times  show  the  date,  amount,  and  from  whom  he  shall  have 
received  such  moneys;  the  date,  amount  and  to  whom  he  has  paid 
out  any  of  the  said  moneys,  the  total  amount  received  and  the  total 
amount  paid  out  during  the  current  iiscal  year  for  school  purposes, 
for  general  county  purposes,  for  jury  fund,  and  for  each  special 
puiijose,  all  separately  kept,  so  that  at  all  times  his  said  books  shall 
correctly  and  accurately  show  the  condition  of  the  said  several 
accounts.  His  account  of  expenditures  for  general  county  purposes 
shall  also  show  separately  the  amounts  expended  each  year  on  account 
of  the  coiinty  home,  indigent  jiersons,  jails,  work-houses,  coui'tliouse, 
bridges,  insolvent  fees,  courts,  and  such  other  sjjecial  accounts  as 
shall  be  required  b}'  the  board  of  commissioners  of  the  county,  the 
total  of  said  accounts  being  the  aggregate  amount  expended  during 
the  fiscal  year  for  general  county  purposes.  He  shall  post  at  the 
courthouse  door  on  the  first  jMonday  in  each  month  a  correct  state- 
ment of  such  receipts  and  expenditures,  showing  the  amount  received, 
and  from  what  source,  and  the  amounts  paid  out,  and  to  whom,  and 
for  what  purpose,  and  the  balance  in  his  hands  telonging  to  the 
county. 

3.    TO    CALL   ON    COUNTY    OFFICEKS    FOE   FUNDS    IN    THEIR    HANDS. 

To  call  on  the  sheriff,  or  the  clerk  of  the  superior  court,  or  other 
oificer  having  county  moneys  in  his  hands,  at  least  once  in  each 
month,  or  oftener  if  necessary,  to.  pay  over  to  him,  and  to  accoimt  for 
all  such  moneys. 

4.    TO   KEEP   ACCOUNTS   OF   FINES,   ETC. 

To  enter  in  a  book  to  be  kept  by  him  the  exact  amount  of  any 
fine,  penalty  or  forfeiture  paid  over  to  him,  giving  the  date  of 
payment,  the  name  of  the  clerk  or  other  person  so  paying  the  same, 
the  name  of  tlie  party  from  whom  such  fine,  penalty  or  forfeiture 
was  collected,  and  in  what  case. 

5.    TO    EXHIBIT    TO    THE    BOARD    OF    COMMISSIONERS    HIS    BOOKS    AND 
ACCOUNTS   AS    TREASURER    FOR    EX^VMIN.VTION. 

To  exhibit  his  books  and  accounts  and  moneys  once  every  three 
months,  or  oftener,  if  the  board  of  commissioners  of  his  countv  deem 
it  necessary,  to  a  committee  to  be  composed  of  the  cliairnuin  of  the 


1398  COUNTY  TKEASUKER.  Ch.  26 

board  of  commissioners  and  one  other  person  to  be  selected  by  the 
board  of  commissioners,  who  shall  be  an  expert  accountant;  and 
it  shall  be  the  duty  of  this  committee  to  examine  the  books  and 
accounts  of  his  office,  and  to  see  that  the  accoimts  are  correctly  and 
properly  kept,  and  to  count  the  money  in  the  hands  of  the  treasurer, 
and  to  see  tliat  it  corresponds  wath  the  amount  shown  by  the  books 
to  be  in  his  hands.  And  at  every  such  examination  of  the  books  and 
accomits  of  his  office  the  comity  treasurer  shall  exhibit  a  full,  per- 
fect and  itemized  statement  to  said  committee  of  the  use  he  has  made 
of  every  dollar  of  public  funds  in  his  hands  since  the  last  exhibition 
of  his  books  to  said  committee,  and  if  any  part  of  said  funds  has 
been  loaned  out  this  statement  shall  state  to  whom  loaned  and  on  what 
security  and  the  amount  of  interest  paid  on  said  loan,  and  such  inter- 
est shall  be  by  the  treasurer  covered  into  the  county  treasury.  This 
stateiuent  shall  be  sworn  to  and  piiblished  in  a  county  newspaper  or 
at  the  coiirthouse  door:  Provided,  that  nothing  herein  contained  shall 
be  construed  to  authorize  the  county  treasurer  to  lend  any  public 
funds.  And  if  at  any  time  there  shall  be  a  deficit  in  the  amount  of 
money  in  the  hands  of  the  treasurer,  the  committee  shall  so  report 
to  the  board  of  commissioners,  whose  duty  it  shall  be  to  institute 
proceedings  in  the  superior  court  against  said  treasurer  for  viola- 
tion of  his  official  duties. 
Code,  ss.  96,  773;   1889,  c.  242. 

1399.  Not  to  speculate  in  county  claims;  forfeits  office  thereby. 

No  county  treasurer  purchasing  a  claim  against  the  county  at  less 
than  its  face  value,  shall  be  entitled  to  charge  the  county  a  gTeater 
sum  than  what  he  actually  paid  for  the  same ;  and  the  board  of  com- 
missioners may  examine  him  as  well  as  any  other  person  on  oath 
concerning  the  matter;  and  any  county  treasurer  who  shall  be  con- 
cerned or  interested  in  any  such  speculation  shall  forfeit  his  office. 
Code,  s.  772;   1868-9,  c.  157,  s.  8. 

1400.  Administers  property  held  in  trust  for  county.  In  all  cases 

where  any  property,  real  or  ]>ersonal,  shall  have  been  held  by  deed, 
will  or  otherwise,  by  any  person  or  officer  in  trust  for  any  county,  or 
for  any  charitable  use  to  be  administered  in,  and  for,  the  benefit  of 
such  county,  or  the  citizens  thereof,  such  property  shall  be  transferred 
to,  and  vest  in  the  county  treasurer,  to  be  administered  and  applied 
by  him  under  the  direction  of  the  board  of  commissioners,  upon  the 
same  uses,  purposes  and  trusts  as  declared  by  the  gi-antor,  testator, 
or  other  person  in  the  original  deed,  devise  or  other  instrument  of 
donation. 

Code,  s.  778;   1869-70,  c.  85. 


403 


1401  COrXTY  TREASUEER.  Cb.  20 

1401.  To  take  charge  of  county  trust  funds;  additional  bond 

required.  It  shall  be  tbe  duty  of  tbe  county  treasurer  to  take  cbarge 
of  all  such  trust  funds  and  property ;  but  he  shall  not  do  so,  without 
giving  a  bond  payable  to  the  state,  in  a  penalty  double  the  estimated 
value  of  said  property  or  funds,  with  three  or  more  sureties,  each  of 
whom  shall  be  worth  at  least  the  amount  of  the  penalty  of  tlie  bond, 
over  and  above  all  his  liabilities  and  property  exempt  from  execu- 
tion, which  lx>nd  shall  be  taken  by  the  board  of  commissioners,  and 
shall  be  recorded  and  otherwise  treated  and  dealt  with  as  the  official 
bond  of  the  treasurer. 

Code,  s.  779;    1869-70,  c.  85,  s.  2. 

1402.  Commissioners  to  keep  a  record  of  trust  funds.   The 

board  tif  commissioners  shall  keep  a  jiroper  record  of  all  such  trust 
property  or  charitable  funds,  and  when  necessary  shall  institute  pro- 
ceedings to  recover  for  the  treasurer  all  such  as  may  lie  unjustly 
withheld. 

Code.  s.  780;    1809-70,  e.  85,  s.  3. 

1403.  Exhibits  amounts  and  condition  of  trust  funds.    The 

coimty  treasurer,  whenever  he  is  required  to  exhibit  to  the  board  of 
commissioners  the  financial  condition  of  the  county,  shall  exhibit 
also  distinctly  and  separately  the  amount  and  condition  of  all  such 
trust  funds  and  property,  how  invested,  secured,  used,  and  other 
particulars  concerning  the  same. 
Code,  s.  781;    1869-70,  c.  85,  s.  4. 

1404.  Pays  no  claim  unless  audited.  It  shall  not  be  lawful  for 

the  county  treasurer  to  pay  a  claim  against  the  county,  imless  the 
same  shall  have  been  audited  and  allowed  by  the  board  of  commis- 
sioners. 

Code,  s.  777;  1868,  c.  19. 

1405.  Books,  papers  and  money  delivered  to  successor.  When- 
ever the  right  of  any  county  treasurer  tti  his  office  expires,  the  books 
and  ])apers  belonging  to  his  office,  and  all  moneys  in  his  hands  by 
virtue  of  his  office  shall,  upon  his  oath,  or  in  case  of  his  death  upon 
the  oath  of  his  personal  representative,  be  delivered  to  his  successor. 

Code,  s.  707;   1868-9,  c.  157. 

1406.  Action  on  bond,  brought  by  commissioners.   The  board 

of  commissioners  shall  bring  an  action  on  the  treasurer's  bond,  when- 
ever they  liax'o  knowledge  or  a  reasonable  liclicf  of  any  Itreadi  of  the 
bond. 

Code,  a.   771;    18G8-9,  c.   157. 


1407  COUIvTTY  TREASURER.  Ch.  26 

1407.  Officers  failing  to  account  to  treasurer  sued  by  county 

commissioners,  in  case  of  the  failure  >>y  refusal  of  a  slieriif,  clerk, 
cir  other  ofHccr  to  account  and  pay  over,  when  called  on  as  directed 
in  this  chapter,  the  treasurer  shall  report  the  facts  to  the  board  of 
coniinissioners,  who  may  forthwith  bring  suit  on  the  ofhcial  bond  of 
such  delinquent  officer,  and  the  said  board  is  also  allowed  to  bring 
suit  on  the  official  bond  of  the  clerk  of  the  superior  court  of  any 
adjoining  county. 

Code,  s.  775;   1868-9,  c.  157,  s.  10. 


XoTE.     For  bond  of  treasurer,  see  s.  297. 

For  compensation,  see  s.  2778. 

For  compensation  of  examining  committee,  see  s.  2779. 


I. 

General  provisions. 

II. 

Dockets, 

III. 

Civil  jurisdiction. 

IV. 

Criminal  jurisdiction. 

V. 

Jurors, 

VI. 

Procedure  before  trial. 

VII. 

Rules  of  procedure. 

VIII. 

.Judgment  and  execution 

IX. 

Appeal, 

X. 

Forms, 

CHAPTER  27. 
COURTS— JUSTICES'. 

Sections. 
1408—141.5 
1416—1418 
1419—1426 

1427 
1428—1443 
1444—14.56 
1457—1478 
1479—1488 
1489—1495 

1496 

I.     General  Pkovisions. 

1408.  Constitution,  article  seven  abrogated;  exceptions.    All 

the  provisions  of  article  seven  of  the  constitution  inconsistent  with 
this  chapter,  except  those  contained  in  sections  seven,  nine  and  thir- 
teen, are  hereby  abrogated,  and  the  provisions  of  this  chapter  sub- 
stituted in  their  place ;  subject,  however,  to  the  power  of  the  general 
assembly  to  alter,  amend  or  abrogate  the  provisions  of  this  chapter, 
and  to  substitute  others  in  their  stead,  as  provided  in  section  fourteen 
of  article  seven  of  the  constitution. 

Code,  s.  818;   1876-7,  c.  141,  s.  7. 

1409.  When  and  how  justices  elected.    At  every  general  election 
held  for  members  of  the  general  assembly,  there  shall  be  elected  in 


1409      COURTS— JUSTICES'— 7.   General  Provisions.      Ch.   27 

each  township  (except  those  in  the  counties  of  Bertie,  Caswell, 
Chowan,  I'orsyth,  Granville.  Harnett,  ilontgonierv  and  Vance,  in 
which  counties  justices  of  the  peace  shall  be  elected  by  the  gen- 
eral assembly),  three  justices  of  the  peace,  and  for  each  township 
in  which  any  city  or  incorporated  town  is  situated,  one  justice 
of  the  peace  for  every  one  thousand  inhabitants  in  such  town  or 
city  (except  in  the  city  of  Wilmington,  where  the  number  shall  be 
twenty-five ) ,  who  shall  hold  their  otWces  for  two  years,  except  that  in 
the  county  of  Edgecombe  there  shall  be  elected  one  justice  of  the  peace 
for  each  and  every  one  hundred  duly  qualified  electors  in  each  town- 
ship, and  for  every  fraction  of  one  hundred  over  fifty. 

1895,  c.  157,  s.  4;  1899,  c.  392;  1903,  ce.  191,  207,  790;  1876-7,  c.  141;  Code, 
s.  819;  1905.  cc.  37,  44,  73.  s.  2;  1905,  e.  148,  s.  2;  1905.  c.  447. 

Xote.  For  special  provision  as  to  time  of  election  in  Washington  county,  see 
1905,  c.  148,  s.  2. 

1410.  How  justices  elected  in  Warren  county.  Upon  a  petition 

of  two-thirds  of  the  qualified  electors  in  any  township  in  Warren 
county,  the  board  of  commissioners  of  said  county  shall  call  an 
election  at  the  time  and  in  the  manner  appointed  for  the  election  of 
members  of  the  general  assembly  in  the  year  one  thousand  nine  hun- 
dred and  six,  and  every  two  years  thereafter,  for  the  election  of  not 
more  than  five  nor  less  than  three  jxistices  of  the  peace,  as  the  petition 
shall  designate,  to  be  voted  for  and  elected  by  the  voters  of  the  said 
township  in  which  they  reside,  and  who  shall  hold  their  office  for  two 
years,  and  until  their  successors  are  elected  and  qualified.  The  said 
justices  of  the  peace  shall  be  qualified  by  taking  the  oath  of  office 
before  the  clerk  of  the  superior  court  of  said  Warren  cinnity. 
1905.  c.  73,  s.  2. 

1411.  When  justices  shall  qualify;  vacancies.   Every  person 

elected  or  appointed  a  justice  of  the  ])eace,  before  his  term  of 
office  begins  or  within  thirty  days  thereafter,  shall  take  and  sub- 
scribe the  prescribed  oath  of  office  before  the  clerk  of  the  superior 
court,  who  shall  file  the  same.  All  elections  of  justices  of  the  peac^ 
by  the  general  assembly  or  by  the  people,  shall  he  void  unless  the 
persons  so  elected  shall  qualify  as  hei'cin  directed.  All  original 
vacancies  in  the  office  of  justice  of  the  peace  occurring  before  quali- 
fication as  provided  in  this  section,  shall  be  filled  for  the  term  by  the 
governor.  All  other  vacancies  shall  be  filled  by  the  clerk  of  the  supe- 
rior court. 

Code,  s.  821 ;  1901,  c.  37. 

1412.  Office  forfeited  by  removal  from  township.   When  any 

justice  of  the  jieacc  removi's  oul  of  bis  township  and  does  not  retuni 
therein  for  the  space  of  six  months,  he  tbcroby  forfeits  and  loses  his 
office. 

Code,  s.  822.  4(Hi 


-vM^' 


14:13      COURTS— JUSTICES'— /.   Gerieral  Provisions.      Cli.  27 

1413.  Resignation.  Justices  of  the  peace  wishing  to  resign  must 
deliver  their  letters  of  resignation  to  the  clerk  of  the  sujjerior  court, 
who  shall  file  the  same. 

Code,  s.  823. 

1414.  Punishment  on  conviction  of  infamous  crimes.  Upon  the 

conviction  of  any  justice  of  the  peace  uf  an  infamous  crime,  or  of 
corruption  and  malpractice  in  office,  he  shall  be  removed  from  office, 
and  he  shall  be  disqualified  from  holding  or  enjoying  any  ofiice  of 
honor,  trust  or  profit  under  this  state. 

Code,  s.  826. 

1415.  Office  under  the  United  States.  Any  justice  of  the  peace 

may  accept  a  civil  office  or  appointment  of  trust  or  profit,  uuder  the 
authority  of  the  United  States,  the  duties  of  which  confine  him  to 
the  county  where  he  is  resident. 
Code,  s.  825 ;  Const.,  Art.  XIV,  s.  7. 

II.     Dockets. 

1416.  Furnished  by  county  commissioners.  A  civil  and  a  crimi- 
nal docket  shall  be  furnished  each  justice,  at  the  expense  of  the 
county,  by  the  board  of  county  commissioners,  in  which  shall  be 
entered  a  minute  of  every  proceeding  had  in  any  action  before  such 
justice. 

Code,  s.  831. 

1417.  Filed  with  clerks.  Each  justice  of  the  peace,  as  often  as 
he  has  filled  his  docket,  shall  file  the  same  with  the  clerk  of  the 
suij)erior  court  for  his  county. 

Code.  s.  827. 

1418.  Dockets,  papers  and  books  delivered  to  clerk  for  suc- 
cessor. When  a  vacancy  exists,  from  any  cause,  in  the  office  of  a 
justice  of  the  peace,  whose  docket  is  not  filled,  or  when  such  justice 
goes  out  of  office  by  expiration  of  his  term,  such  former  justice,  if 
living,  and  his  personal  representative,  if  dead,  shall  deliver  such 
docket,  all  law  and  other  books  fiirnished  him  as  a  justice  of  the 
peace,  and  all  official  papers  to  the  clerk  of  the  superior  court  for 
his  successor,  who  is  authorized  to  hear  and  determine  any  unfinished 
action  on  said  docket,  in  the  same  manner  as  if  such  action  had  been 
originally  brought  before  such  successor. 

Code,  s.  828;   1885,  c.  372. 


1419     COURTS— JUSTICES'— ///.   Ciril  Jurisdiction.     Cli.  27 

III.     Civil   Jurisdiction. 

1419.  Actions  on  contract.  Justifcs  of  the  pcaco  .•^hall  have 
exclusive  original  jurisdiction  of  all  civil  actions  funnilcd  on  con- 
tract, except — 

1.  Wherein  the  sum  demanded,  exclusive  of  interest,  exceeds  two 
hundred  dollars. 

2.  Wherein  the  title  to  real  estate  is  in  controversy. 
Const.,  Art.   IV,  s.  27;   Code,  s.  834. 

1420.  Actions  not  on  contract.  Justices  of  the  iieace  .shall  have 
concurrent  jurisdiction  of  civil  actions  not  founded  on  contract, 
wherein  the  value  of  the  property  in  controvcr.sy  does  not  exceed  fifty 
dollars. 

Const.,  Art.  IV,  s.  27;  Code,  s.  887. 

1421.  Action  dismissed,  when;  remitter  for  jurisdiction.  Where 

it  appears,  in  any  action  l>rought  iK'lore  a  justice,  that  the  principal 
sum  demanded  exceeds  two  lumdred  dollars,  the  justice  shall  dismiss 
the  action  and  render  a  judgment  against  the  plaintiff  for  the  costs, 
unless  the  plaintiff  shall  remit  the  excess  of  principal,  above  two 
hundred  dollars,  with  the  interest  on  said  excess,  and  .shall,  at  the 
time  of  filing  his  complaint,  direct  the  justice  to  make  this  entry: 
''The  plaintiif,  in  this  action,  forgives  and  remits  to  the  defendant  so 
much  of  the  principal  of  this  claim  as  is  in  excess  of  two  hundred  dol- 
lars, together  with  the  interest  on  said  excess." 
Code,  s.  8.35;   18G8-9.  c.  159.  s.  3;   1876-7,  c.  63. 

1422.  Where  title  to  real  estate  is  in  controversy.   In  every 

action  brought  in  a  court  of  a  justice  of  the  peace,  where  tlie  title  to 
real  estate  comes  in  controversy,  the  defendant  may,  either  with  or 
without  other  matter  of  defense,  set  forth,  in  his  answer,  any  matter 
showing  that  such  title  will  come  in  question.  Such  answer  shall 
be  in  writing,  signed  by  the  defendant  or  his  attorney,  and  delivered 
to  the  justice. 
Cede,  s.  836. 

1423.  Title  to  real  estate  in  controversy,  action  dismissed,  if 

it  ajijiears  on  the  trial  that  the  title  to  real  estate  is  in  controversy, 
the  justice  shall  dismiss  the  action  and  render  judgment  against  the 
plaintiif  for  costs. 
Code,  s.  s:i7. 

1424.  Another  action  may  be  brought;  estoppel  by  former  plea. 

When  an  acli<in,  bcfori'  a  justice,  is  disinisscil  upon  answer,  and  proof 
liy  I  he  dcfcmhint,  that  the  title  to  real  estate  is  in  controversy  in  the 


U2i     COURTS— JUSTICES'— ///.   Cir!l  Jurisdidion.     Cli.   27 

case,  the  ])laiutiff  may  prosecute  au.  actiou  for  the  same  cause  in  the 
superior  court,  and  the  defendant  shall  not  be  admitted  in  that  court 
to  deny  the  jurisdiction  by  an  answer  contradicting  his  answer  in 
the  justice's  court. 

Code,  s.  838. 

1425.  May  issue  process  and  try  causes,  where.  A  justice  of 

the  peace  may  issue  a  summons  or  other  process  anywhere   in  his 
county,  but  he  shall  not  be  compelled  to  try  a  cause  out  of  the 
township  for  which  he  was  elected  or  appointed. 
Code,  s.  824. 

1426.  Profane  swearing  punisiied  as  a  contempt.  If  any  per- 

S(.iu  shall  i)rofanelj  swear  or  curse  in  the  hearing  of  a  justice  of  the 
])eace,  holding  court,  the  justice  may  commit  him  for  contempt,  or 
tine  him  not  exceeding  five  dollars. 
Code,  s.  848;  R.  C,  c.  115;  1741,  c.  30. 

IV.     Ckiminal  Jueisdiction. 

1427.  Jurisdiction  in  criminal  actions,  .lustices  of  the  peace  shall 

have  excliTsive  original  jurisdiction  of  all  assaults,  assaults  and  bat- 
teries, and  affrays,  where  no  deadly  weapon  is  used  and  no  serious 
damage  is  done,  and  of  all  criminal  matters  arising  within  their 
counties,  where  the  punishment  prescribed  by  law  shall  not  exceed 
a  fine  of  fifty  dollars,  or  imprisonment  for  thirty  days:  Provided, 
that  justices  of  the  peace  shall  have  no  jurisdiction  over  assaults  with 
intent  to  kill,  or  assaults  with  intent  to  commit  rape,  except  as 
committing  magistrates :  Provided  further,  that  nothing  in  this  sec- 
tion shall  prevent  the  superior  or  criminal  courts  from  finally  hear- 
ing and  determining  such  afl'rays  as  shall  be  coimnitted  within 
one  mile  of  the  place  where  and  during  the  time  such  court  is 
being  held ;  nor  shall  this  section  be  construed  to  prevent  said 
courts  from  assiuning  jurisdiction  of  all  offenses  whereof  exclusive 
original  jurisdiction  is  given  to  justices  of  the  peace  if  some  justice 
of  the  peace,  within  twelve  months  after  the  commission  of  the 
offense,  shall  not  have  proceeded  to  take  official  cognizance  of  the 
same. 

Const.,  Art.   IV,  s.  27;   Code,  s.  892;    1880,   c.   504,   s.   2. 


Note.     For  criminal  procedure  in  justice's  court,  see  Criminal  Procedure. 
V.        JUKORS. 

1428.    Jury  list  furnished.    The  clerk  of  the  board  of  connnission- 
ers  shall   furnish,   im   deman<l,   to  each  justice  nf   the  peace  in   the 


1428  COURTS— JUSTICES'— r.  Jurors.  Ch.  27 

county,  a  list  of  the  jurors  for  the  township  for  which  such  justice 
is  elected  or  appointed. 

Code,  s.  854. 

1429.  To  keep  jury  box.  Each  justice  shall  keep  a  jury  hox,  hav- 
ing two  divisions  marked  respectively  number  one  and  niunber  two, 
and  having  two  locks,  the  key  to  be  kept  by  the  justice. 

CodCj  s.  85.0. 

1430.  Names  of  jurors  deposited  in  box.   Each  justice  shall 

cause  the  names  on  his  jury  list  to  be  written  on  small  scrolls  of 
paper  of  equal  size,  and  to  be  placed  in  the  jury  box,  in  division 
marked  number  one,  until  drawn  out  for  the  trial  of  an  issue  as 
required  by  law. 

Code,  s.  856. 

1431.  Trial  by  jury  waived,  if  not  demanded.  A  trial  by  jury 

must  be  demanded  at  the  time  of  joining  the  issue  of  fact,  and  if 
neither  party  demand  at  such  time  a  jury,  they  shall  be  deemed  to 
have  waived  a  trial  by  jury. 

Code,  s.  857. 

1432.  Deposit  of  jury  fees.  Before  a  party  is  entitled  to  a  jury 
he  shall  deposit  with  the  j\istice  the  sum  of  three  dollars  for  jury 
fees,  and  the  justice  shall  pay  to  all  persons  who  attend,  pur- 
suant to  the  svimmons,  as  well  to  those  who  do  not  actually  serve 
as  to  those  who  do  serve,  twenty-five  cents  each,  to  be  included  in 
the  judgment  as  part  of  the  costs,  in  case  the  party  demanding  the 
jury  recover  judgment,  but  not  otherwise.  The  justice  shall  refund 
to  the  party  the  fees  of  all  jurors  who  do  not  attend. 

Code,  s.  869. 

1433.  Jury  drawn  and  trial  postponed.  When  a  trial  by  jury  is 

demanded,  the  justice  shall  immediately,  in  the  presence  of  the 
parties,  proceed  to  draw  the  names  of  twelve  jurors  from  division 
marked  number  one  of  the  jury  box ;  and  the  trial  of  the  cause  shall 
thereupon  be  postponed  to  a  time  and  place  to  be  fixed  by  the  justice. 

Code,  s.  858. 

1434.  Summoning  the  jury,  A  list  of  the  j>n-ors  so  drawn  shall 
be  immediately  delivered  by  the  justice  to  any  constable,  or  other 
lawful  officer,  with  an  order  indorsed  thereon,  directing  him  to  sum- 
mon tlie  per.sons  named  in  the  list  to  appear  as  jurors  at  the  time 
and  place  fixed  for  the  trial ;  and  it  is  the  duty  of  the  officer  to  pro- 
ceed forthwitli  to  summon  such  jurors,  or  so  many  of  them  as  can 
be  found,  according  to  the  order ;  and  he  shall  make  return  thereof 


1434  COURTS— JUSTICES'— T.  Jurors.  Cli.   27 

at  the  time  and  place  appointed,  stating  in  his  return  the  names  of 
the  jurors  siumnoned  by  him. 

Code,  s.  8.50. 

1435.  Jury  for  trial,  how  selected.  At  the  time  and  place  ap- 
pointed, and  on  return  of  the  order,  if  the  trial  be  not  further 
adjourned,  and  if  adjourned,  then  at  the  time  and  place  to  which 
the  trial  shall  be  adjoiirned,  the  justice  shall  proceed,  in  the  pres- 
ence of  the  parties,  to  draw  from  the  jurors  summoned  the  names  of 
six  persons  to  constitute  the  jury  for  the  trial  of  the  issue. 

Code,  s.  860. 

1 436.  Challenges.  Each  party  shall  be  entitled  to  challenge,  per- 
emptorily, two  of  the  persons  dra'wn  as  jurors. 

Code,  s.  861. 

1437.  What  names  returned  to  the  jury  box.  The  scrolls  con- 
taining the  names  of  jurors  not  summoned,  if  any,  and  of  those 
summoned,  but  not  drawn,  and  of  those  drawn,  but  challenged  and 
set  aside,  must  be  returned  by  the  justice  to  his  jury  box,  in  division 
marked  number  one :  Provided,  that  the  scrolls  containing  the  names 
of  such  as  are  not  legally  liable,  or  legally  qualified  to  serve  as  jurors, 
shall  be  destroyed. 

Code,  s.  862. 

1438.  Tales  jurors  may  be  summoned.  If  a  competent  and  indif- 
ferent jury  is  not  obtained  from  the  twelve  jurors  dra\\Ti,  as  before 
specified,  the  justice  may  direct  others  to  be  STimmoned  from  the 
bystanders,  sufficient  to  complete  the  jury. 

Code,  s.  86.3. 

1439.  Not  compelled  to  serve  out  of  township.  Xo  person  is 

compelled  to  serve  as  a  juror  in  a  justice's  court  out  of  his  own  town- 
ship, except  as  a  talesman. 

Code,  s.  867. 

1440.  Less  than  six  a  jury  by  consent.  Six  jurors  shall  consti- 
tute a  jury  in  a  justice's  court,  but,  by  consent  of  both  parties,  a  less 
number  may  constitute  it. 

Code,  s.  866. 

1441.  Jurors  serving  on  trial.  The  scrolls  containing  the  names 
of  the  jurors  who  serve  on  the  trial  of  an  issue  must  be  placed  in  the 
jury  box  in  division  marked  number  two,  until  all  the  scrolls  in 
division  marked  number  one  have  been  drawn  out.  As  often  as  that 
may  happen,  the  whole  niuuber  of  scrolls  shall  be  returned  to  divis- 
ion marked  number  one,  to  be  drawn  oiit  as  in  the  first  instance. 

Code,  s.  868. 

411 


1442  COURTS— JUSTICES'— r.  Jurors.  Ch.  27 

1442.  Additional  deposit  for  jury  fees  for  adjournment.    Xo 

adjournment  shall  be  granted  after  the  return  of  the  jury,  unless 
the  party  asking  the  same  shall,  in  addition  to  the  other  conditions 
imposed  on  him  by  law  or  by  the  justice,  deposit  with  the  justice,  to 
be  immediately  paid  to  the  jurors  attending,  the  sum  of  tweuty-tive 
cents  each,  such  amount  to  be  in  no  case  included  in  the  judgment 
as  part  of  the  costs.  On  such  adjoiirnment,  the  jurors  shall  attend 
at  the  time  and  place  appointed,  without  further  summons  or  notice ; 
and  the  fees  for  the  jury,  deposited  with  the  justice  according  to 
section  one  thousand  four  hundred  and  thirty-two,  shall  remain  in 
his  hands  until  the  jury  are  impaneled  on  the  trial,  and  shall  be  then 
immediately  paid  to  the  jurors  or  to  the  party  entitled  thereto. 
Code,  s.  870. 

1443.  Jury  sworn;   impaneled;  verdict;  judgment.   The  jury 

shall  be  sworn  and  impaneled  by  the  justice,  who  shall  record  their 
verdict  in  his  docket  and  enter  a  judgment  in  the  case  according  to 
such  verdict. 
Code,  s.  864. 

VI.     Peocedure  Befoke  Trial. 

1444.  Summons,  civil  action  begun  by.   Civil  actions  in  these 

courts  shall  be  commenced  by  the  issuing  of  a  summons. 
Code,  s.  830;   1868-9,  e.  159,  s.  9. 

1445.  Summons,  by  whom  issued  and  what  to  contain.   The 

summons  shall  be  issuccl  by  the  justice  and  sigiiecl  by-  liiui.  It  shall 
run  in  the  name  of  the  state,  and  be  directed  to  any  constable  or 
otlier  lawful  officer,  commanding  him  to  smnmon  the  defendant  to 
appear  and  answer  the  complaint  of  the  plaintiff  at  a  place,  within 
the  comity,  to  be  therein  specified,  and  at  a  time  to  be  therein  named, 
not  exceeding  thirty  days  from  the  date  of  the  summons.  It  shall 
also  state  the  sum  demanded  by  the  plaintiff  or  the  value  of  the  prop- 
erty sued  for,  where  specific  ]n'o]ierty  is  claimed. 
Code,  s.  832;   1874-5,  c.  234. 

1446.  Service  and  return  of  summons;  fees  in  advance.  The 

officer  to  whom  the  suuuiions  is  delivered  shall  execute  tlie  same 
within  five  days  after  its  receipt  by  him,  or  immediately,  if  required 
to  do  so  by  the  plaintiff.  Before  proceeding  to  execute  it,  he  is  enti- 
tled to  require  of  the  plaintiff  his  fees  for  the  service.  When  exe- 
cuted he  shall  immediately  return  the  summons,  with  the  date  and 
manner  of  the  service,  to  the  jiistice  who  issued  the  same. 
Code,  s.  s:!:i. 

1447.  When  process  issues  to  another  county.  .Xd  i)r(Hvss  shall 

be  issued  by  any  justice  of  the  peace  to  any  county  other  than  his 

412 


1447     COUETS— JUSTICES'— T7.  Pro.  Before  Trial     Ch.  27 

own,  unless  one  or  more  bona  fide  defendants  shall  reside  in,  and 
also  one  or  more  bona  fide  defendants  shall  reside  outside  of,  his 
county ;  in  which  case,  only,  he  may  issue  process  to  any  county  in 
which  any  such  nonresident  defendant  resides. 

Coilc,  s.  871;   1876-7,  c.  287. 

1448.  Process  served  on  foreign  corporation.   Whenever  any 

action  of  which  a  justice  of  the  peace  has  jurisdiction  shall  be  brought 
against  a  foreign  corporation,  which  coi-^joration  is  required  to  main- 
tain a  process  agent  in  the  state,  the  summons  may  be  issued  to  the 
sheriif  of  the  county  in  which  such  process  agent  resides,  and  when 
certified  under  the  seal  of  his  oifice  by  the  clerk  of  the  superior  court 
of  the  county  in  which  the  justice  issuing  such  sununons  resides  to  be 
under  the  hand  of  such  justice,  the  sheriff  of  the  coimty  to  which  such 
summons  shall  be  issued  shall  serve  the  same  as  in  other  cases  and 
make  due  return  thereof.  ?fo  justice  of  the  peace  shall  enter  a  judg- 
ment in  such  eases  against  any  such  foreign  corporation  unless  it  shall 
appear  that  the  process  was  duly  served  upon  such  process  agent  at 
least  twenty  days  before  the  return  day  of  the  same.  The  summons 
may  be  made  returnable  at  a  time  to  be  therein  named,  not  exceeding 
forty  days  from  the  date  of  such  siunmons. 

1449.  How  process  issues  to  another  county.    In  all  civil 

actions  in  courts  of  justices  of  the  peace  where  one  or  more  of  the 
defendants  may  reside  in  a  county  other  than  that  of  the  plaintiff, 
it  shall  be  lawful  for  any  justice  of  the  i^eace  within  the  county 
where  such  defendant  or  defendants  may  reside,  upon  proof  of  the 
handwriting  of  the  justice  of  the  peace  who  issued  the  process,  to 
indorse  his  name  on  the  same,  or  a  duplicate  thereof,  and  such  process 
so  indorsed  shall  be  executed  in  like  manner  as  if  it  had  been  origin- 
ally issued  by  the  justice  indorsing  it. 
Code,  s.  872. 

1450.  Certificate  of  clerk  on  process  for  another  county,   in 

all  cases  referred  to  in  the  preceding  section,  it  sliall  Itc  lawful  for 
the  clerk  of  the  superior  court  of  the  county  in  which  the  action  is 
bro^ight,  to  certify,  under  the  seal  of  his  court,  on  the  process  or  a 
duplicate  thereof,  that  the  justice  of  the  peace  who  issued  the  same 
is  an  acting  justice  of  the  peace  in  his  county.  And  in  all  such 
cases  it  shall  be  the  duty  of  any  sheriff  or  constable  to  whom  it  may 
be  directed,  to  make  an  entry  of  the  date  of  its  reception,  and  to  exe- 
c\ite  the  same  as  provided  for  the  service  of  civil  process  in  courts 
of  justices  of  the  peace,  and  return  it  by  mail  to  the  justice  of  tlie 
peace  from  whose  court  it  issued. 

Code,  s.  873;   1870-1,  e.  60,  s.  2. 


1451     COUETS— JUSTICES'— T/.  Pro.   Before  Trial     Ch.  27 

1451.  When  judgment  entered  against  defendants  in  another 

county.  Xo  justice  iif  the  jieace  .shall  enter  a  juili;iiieiit  tinder  the  two 
prceeding  sections  against  any  defendant  who  may  he  a  nonresident 
of  his  county,  unless  it  shall  appear  that  the  ]irocess  was  duly  served 
upon  him  at  least  ten  days  before  the  return  day  of  the  same. 

Code,  s.  874;   1876-7,  c.  57. 

1452.  Attendance  of  witnesses  procured.  The  justice,  on  appli- 
cation of  either  party,  shall,  by  a  sub])ix'na  or  by  an  order  in  writing 
on  the  process,  direct  the  constable  or  other  otticer  to  summon  wit- 
nesses to  appear  and  give  testimony  at  the  time  and  ])lace  appointed 
for  the  trial.  Each  witness,  failing  to  ap]iear,  shall  forfeit  and 
pay  eight  dollars  to  the  party  at  whose  instance  he  was  summoned, 
and  shall  be  further  liable  to  such  party  for  all  damage  sustained  by 
nonattendance.  The  fine  herein  imposed  may  be  recovered,  on  mo- 
tion, before  the  justice  who  tried  the  action,  unless  the  witness 
on  a  notice  of  five  days,  by  affidavit  or  other  jiroof,  show  sufficient 
excuse  for  his  failure  to  attend. 

Code,   s.  847. 

1453.  When   subpoenas   issue   to   other   counties;   costs   in 

advance.  Justices  of  the  jieace,  in  all  civil  cases,  may  issue  sub]iieuas 
to  cotmties  other  than  their  own ;  such  sub]5a3nas  shall  be  authenti- 
cated in  the  same  manner  as  provided  by  law  for  the  atithentica- 
tion  of  process.  When  so  aitthenticated  the  .sherilf,  constable  or 
other  officer  to  whom  the  same  is  directed  shall  execute  and  return 
the  same  as  provided  for  the'  return  of  process:  Provided,  that 
where  witnesses  attend  in  counties  other  than  their  ovra  under  such 
subpcena  they  shall  receive  the  same  per  diem  and  mileage  as  wit- 
nesses who  attend  the  superior  courts :  Provided  further,  that  before 
issuing  such  subpcenas  the  party  wanting  such  witness  shall  dcjwsit 
with  the  justice  before  whom  the  cause  is  pending  one  day's  per  diem 
and  the  mileage  of  said  witness  to  and  returning  from  ]ilace  of  trial, 
which  aniotmt  shall  be  paid  to  said  witness  on  his  attendance  and 
taxed  against  the  party  cast  in  the  trial. 

1893,  c.  436. 

1454.  Subpcena  duces  tecum  in  case  against  railroad.  When 

any  action  is  brought  against  a  railroad  company  before  a  justice  of 
the  peace,  the  justice  before  whom  such  action  is  made  returnable 
shall  have  power  to  issue  a  sub]inena  t<i  any  county  within  the  limits 
of  the  state,  commanding  the  president  or  any  officer,  director, 
agent,  or  any  one  in  the  employment  of  such  com])any  to  appear 
before  him  at  the  time  and  place  of  trial  and  to  ])roduce  such  books, 
cards  and  other  papers  as  the  justice  shall  deem  ])roper  and  to  give 
evidence  in  said  cause;  and  each  witness  summoned  as  aforesaid  fail- 


1454     COURTS— JUSTICES'— 7/.  Pro.  Before  Trial.     Ch.   27 

ing  or  refusing  to  appear  and  testify  and  produce  the  books  and 
papers  aforesaid  in  obedience  to  such  writ  shall  be  deemed  guilty  of 
a  contempt  of  court  and  fined  not  exceeding  fifty  dollars  or  ini])risoncd 
not  exceeding  thirty  days. 

1885,  c.  221,  s.  2. 

1455.  Removals.  In  all  proceedings  and  trials,  both  criminal  and 
civil,  before  justices  of  the  peace,  the  justice  before  whom  the  writ 
or  summons  is  returnable,  shall,  upon  affidavit  made  by  either  party 
to  the  action  that  he  has  good  reason  to  believe  he  is  unable  to  obtain 
a  fair  trial  before  him,  move  the  same  to  some  other  justice  residing 
in  the  same  township,  or  to  the  justice  of  some  neighboring  township 
if  there  be  no  other  justice  in  said  township :  Provided,  that  no  cause 
shall  be  more  than  once  removed :  Provided  further,  that  such  motion 
to  remove  shall  be  made  before  evidence  is  introduced. 

Code,  s.  007;   1880,  c.  15;   1883,  o.  6G. 

1456.  Removals,  justice  dead  or  incapacitated.  If  any  justice 

of  the  peace  shall  die  or  become  incapacitated  by  removal,  resignation 
or  other  cause,  having  any  action,  civil  or  criminal,  pending  before 
him,  which  shall  not  have  been  finally  determined,  such  action  shall 
not  abate  or  be  discontinued,  but  the  plaintiff  in  such  civil  action,  or 
any  one  on  behalf  of  the  state  in  such  criminal  action,  may  remove 
such  action  for  further  and  final  determination  before  any  other  jus- 
tice of  the  peace  of  the  same  township  in  which  the  original  action 
was  jicnding,  or  before  any  justice  of  the  peace  of  the  same  county 
M'hen  there  is  no  other  in  the  township,  by  filing  the  papers  in  said 
action  with  the  justice  to  whom  the  same  is  removed  and  by  giving 
ten  days'  notice  to  the  defendant  of  such  removal ;  and  if  the  plaintiff 
in  any  civil  action  shall  fail  to  give  such  notice  of  removal  within  ten 
days  from  the  happening  of  the  death,  removal,  or  resignation,  or 
incapacity  of  such  justice,  then  the  defendant  in  such  action  may 
remove  the  same  by  giving  like  notice  to  the  plaintiff ;  and  if  no  notice 
is  given  by  either  party  to  such  action  within  twenty  days,  then  such 
action  shall  stand  discontinued  without  prejudice.  The  justice  of 
the  peace  before  whom  such  action  may  be  removed  shall  proceed  to 
try  and  determine  the  same,  but  he  shall  demand  no  fees  or  cost 
A\'hich  have  theretofore  been  properly  advanced  by  any  party  to  such 
action.  After  such  removal  either  party  shall  be  entitled  to  all  the 
rights  given  in  the  preceding  section. 

1905,  c.  121. 

VII.     Rules  of  Pkoceduee. 

1457.  Rule  I.    Pleadings.    The  ideadings  in  these  courts  are— 

1.  The  complaint  of  the  plaintiff. 

2.  The  answer  of  the  defendant. 

Code,  s.  840.  415 


1458    COURTS— JUSTICES'— TV/.   Huh s  of  Procedure.    Ch.   i>7 

1458.  Rule  II.   Pleadings,  oral  or  written.  The  pleadings  may 

lie  either  ural  m-  written  ;  if  oral,  the  snlistaiiee  imist  be  entered  hv 
the  justice  on  his  doclcet;  if  written,  they  must  be  filed  by  the  justice, 
and  a  reference  to  them  be  made  on  his  docket. 

Code,  s.  840.  Rule  2. 

1459.  Rule  III.  Complaint.  The  comphiint  nmst  state,  in  a  jilain 
and  direct  manner,  the  facts  constitutino'  the  cause  of  action. 

Code,  s.  840,  Rule  3. 

1460.  Rule   IV.    Answer.    The  answer  may  contain  a  denial  of 

the  complaint,  ov  of  any  part  thereof,  and  also  a  statement,  in  a  ])lain 
and  direct  manner,  of  any  facts  constituting  a  defense  or  counter- 
claim. 

Code,  s.  840,  Rule  4. 

1461.  Rule  V.  Demurrer.  Either  party  may  demur  to  a  plead- 
ing of  his  adversary,  or  to  any  part  thereof,  when  it  is  not  suffi- 
ciently explicit  to  enable  him  to  understand  it,  or  contains  no  cause 
of  action  or  defense,  although  it  be  taken  as  true. 

Code,  s.  840.  Rule  11. 

1462.  Rule  VI.    When  demurrer  is  sustained.    If  the  justice 

deem  the  objection  ■well  founded,  he  shall  order  the  pleading  to  be 
amended  on  such  terms  as  he  may  think  just :  and  if  the  party  refuse 
to  amend,  the  defective  pleading  shall  be  disregarded. 
Code,  c.  840,  Rule  12. 

1463.  Rule  VII.    No  particular  form  for  pleadings.    Pleadings 

are  not  required  to  be  in  any  particular  form,  but  nnist  be  such  as 
to  enable  a  person  of  common  understanding  to  know  what  is  meant. 

Code,  s.  840,  Rule  5. 

1464.  Rule  VIII.  No  judgment  by  default.  Where  a  defendant 
does  not  appear  and  answer,  the  plaintiff-  must  still  prove  his  case 
before  he  can  recover. 

Code,  s.  840.  Rule  G. 

1465.  Rule  IX.   Action  on  account  or  note.    In  an  action  or 

defense,  founded  on  an  account  or  an  instrument  for  the  payment  of 
money  only,  it  is  sufHcient  for  a  party  to  deliver  the  account  or  instru- 
ment to  the  justice  and  state  that  there  is  due  him  thereon  from  the 
adverse  party  a  specified  sum,  which  he  claims  to  recover  or  set  off. 

Code,  s.  840,  Rule  7. 

1466.  Rule  X.  Variance  between  pleading  and  proof.  A  vari- 
ance between   the   evidence  on   the   trial   and   the   allegations   in   a 


1460    COURTS— JUSTICES'— 17/.  Rules  of  Procedure.    Cli.  il 

pleading  shall  be  disi-egarded  as  immaterial,  tmlcss  tlie  court  'n 
satisfied  that  the  adverse  party  has  been  misled  to  his  prejudice 
thereby. 

Code,  s.  840,  Rule  8. 

1467.  Rule  XI.   Process  not  quashed  for  form.   No  process  or 

other  proceeding  begun  before  a  justice  of  the  peace,  whether  in  a 
civil  or  a  criminal  action,  shall  be  quashed  or  set  aside,  for  the  want 
of  form,  if  the  essential  matters  are  set  forth  therein;  and  the  court 
in  which  any  such  action  shall  be  pending,  shall  have  power  to  amend 
any  warrant,  process,  pleading  or  proceeding  in  such  action,  either 
in  form  or  substance,  for  the  furtherance  of  justice,  on  such  terms 
as  shall  be  deemed  just,  at  any  time  either  before  or  after  judgment. 

Code,  s.  908;   R.  C,  c.  3,  c.  62,  s.  22;   1794,  c.  414. 

1468.  Rule  XII.    Pleadings  amended.    The  pleadings  may  be 

amended  at  any  time  before  tlie  trial,  or  during  the  trial,  or  upon 
appeal,  when  by  such  amendment  substantial  justice  will  be  pro- 
moted. If  the  amendment  be  made  after  the  joining  of  the  issue, 
and  it  appears  to  the  satisfaction  of  the  court,  by  oath,  that  an 
adjournment  is  necessary  to  the  adverse  party,  in  consequence  of 
such  amendment,  an  adjournment  shall  be  granted.  The  court  may 
also,  in  its  discretion,  require  as  a  condition  of  an  amendment  the 
payment  of  costs  to  the  adverse  party. 

Code,  s.  840,  Rule  9. 

1469.  Rule  XIII.  Account  or  demand  exhibited.  The  justice  may 

at  the  joining  of  issue,  require  either  party,  at  the  request  of  the 
other,  at  that  or  some  other  specified  time  to  exhibit  his  account  or 
demand,  or  state  the  nature  thereof  as  far  as  may  be  in  his  power; 
and  in  case  of  his  default,  the  justice  shall  preclude  him  from  giving 
evidence  of  such  parts  thereof  as  have  not  been  so  exhibited  or  stated. 
Code,  s.  840,  Rule  10. 

1470.  Rule  XIV.  Proceedings  recorded.  The  justice  shall  enter 

all  his  proceedings  in  a  cause  tried  before  him  in  his  docket.  No 
part  of  such  proceedings  must  be  entered  on  the  siimmons,  on  the 
pleadings  or  on  any  other  paper  in  the  cause. 

Cndo.  s.  840,  Rule  l.",. 

1471.  Rule  XV.  Tender  of  judgment.  The  defendant  may,  on 
the  return  of  process  and  before  answering,  make  an  offer  in  writing 
to  allow  judgment  to  be  taken  against  him  for  an  amount,  to  be 
stated  in  such  offer,  with  costs.  The  plaintiff  shall  thereupon,  and 
before  any  other  pi-oceeding  be  had  in  the  action,  determine  whether 
he  will  accept  or  reject  such  offer.     If  he  accept  the  offer,  and  give 

Rev.  Vol.  I — 23  417 


1471    COURTS— JUSTICES'— T//.  Bulrs  of  Procedure.    Ch.  27 

notice  thereof  in  writing,  the  justice  shall  file  the  otfer  and  the 
acceptance  thereof,  and  render  judgment  accordingly.  If  notice  of 
acceptance  be  not  given,  and  if  the  plaintiff  fail  to  obtain  judgment 
for  a  gi'eater  amount,  exclusive  of  costs,  than  has  been  specified  in 
the  offer,  he  shall  not  recover  costs,  but  shall  pay  to  the  defendant  his 
costs  accruing  subsequent  to  the  offer. 

Cmlc.  s.  840,  Rule   l(i. 

1472.  Rule  XVI.  Continuance.  Any  justice  before  whom  an 
action  is  brought,  may,  on  sufficient  excuse  therefor  shown  on  the 
affidavit  of  either  party  or  any  person  for  him,  continue  such  action 
from  time  to  time  for  trial ;  but  such  continuance  shall  not  exceed 
thirty  days. 

Code,  s.  840,  Rule  17. 

1473.  Rule  XVII.    Chapter  on  civil  procedure  applicable  to 

forms,    limitations    and    parties.   The    chapter   on    civil    procedure, 
resisecting  forms  of  actions,  parties  to  actions,  the  times  of  commenc- 
ing actions,  and  the  service  of  process,  shall  apply  to  justice's  courts. 
Code,  s.  840,  Rule  15. 

1474.  Rule  XVIII.    Chapter  on  civil  procedure  applicable  in 

attachment.  The  chapter  on  civil  procedure  is  applicable  to  pi'o- 
ceedings  by  attachment  before  jiistices  of  the  peace,  in  all  cases 
foimded  on  contract  wherein  the  sum  demanded  does  not  exceed  two 
hundred  dollars,  and  where  the  title  to  real  estate  is  not  in  contro- 
versy. 

Code,  s.  853. 

1475.  Rule  XIX.  Chapter  on  civil  procedure  applicable  to  claim 

and  delivery  and  in  arrest  and  bail.  The  cliaptcr  .>n  civil  jirocedure 

is  applicable,  except  as  herein  otherwise  provided,  to  proceedings  in 
justices'  courts  concerning  claim  and  delivery  of  ]iersonal  property 
and  arrest  and  bail,  substituting  the  words  "justice  of  the  peace"  for 
"judge,"  "clerk"  or  "clerks  of  the  court,"  and  inserting  the  words 
"or  constable"  after  "sheriff,"  whenever  they  occur. 

Code,  .ss.  849,  889;  1876-7,  c.  251. 

Note.     See  ss.  726,  790. 

1476.  Rule  XX.   Damages  to  real  estate  and  conversion  of 

personalty,  same  rules.  All  actions  in  a  court  bf  a  jiisticc  of  the 
peace  fur  tlic  r(>coverv  of  damages  to  real  estate,  or  for  the  convci*sion 
of  personal  property,  or  any  injury  thereto,  shall  be  commenced  and 
prf)secuted  to  judgment  under  the  same  rules  of  i)roccdur('  as  pro- 
vided in  civil  actions  in  a  jn.stice's  court. 

Code,  s.  888;  1870-7,  c.  251. 


1477    COURTS— JUSTICES'— T7Z.  Euhs  of  Procedure.    Ch.   27 

1477.  Rule  XXI.  Suit  on  judgment,  evidence  in.  On  tlie  trial  of 

an  action  founded  on  a  former  judgment,  the  judgment  itself  shall 
be  evidence  of  the  debt,  subject  to  such  payments  as  have  been  made. 
Code,  s.  844. 

1478.  Rule  XXII.   When  rehearing  granted.  When  a  judgment 

has  been  rendered  by  a  justice,  in  the  absence  of  either  party,  and 
when  siuch  absence  was  caused  by  the  sickness,  excusable  mistake  or 
neglect  of  the  party,  such  absent  party,  his  agent  or  attorney,  may, 
within  ten  days  after  the  date  of  such  judgment,  apply  for  relief 
to  the  justice  who  awarded  the  same,  by  affidavit,  setting  forth  the 
facts,  which  affidavit  must  be  filed  by  the  justice;  whereupon  the 
justice,  if  he  deem  the  affidavit  sufficient,  shall  open  the  case  for 
reconsideration;  and  to  this  end,  he  shall  issue  a  siumnons,  directed 
to  a  constable,  or  other  lawful  officer,  to  cause  the  adverse  party, 
together  with  the  witnesses  on  both  sides,  to  appear  before  him  at 
a  place  and  at  a  time,  not  exceeding  twenty  days,  to  be  specified  in 
the  summons,  when  the  complaint  shall  be  reheard,  and  the  same 
proceedings  had  as  if  the  case  had  never  been  acted  on.  If  execution 
has  been  issued  on  the  judgment,  the  justice  shall  direct  an  order  to 
the  officer  having  such  execiTtion  in  his  hands,  commanding  him  to 
forbear  all  further  proceedings  thereon,  and  to  return  the  same  to 
the  justice  forthwith. 
Code,  s.  845. 


Note.     See  s.  1489. 

VIII.     Judgment  and  Execution. 

1479.    Docketing  justice's  judgment;  lien;  stay  of  execution; 
clerk's  duty;  costs;  docketed  in  other  counties.   A  justice  of  the 

peace,  on  the  demand  of  a  party  in  wliose  favor  he  has  i-endered  a 
judgment,  shall  give  a  transcri])t  thereof  which  may  be  filed  and 
docketed  in  the  office  of  the  superior  court  clerk  of  the  county  where 
the  judgment  was  rendered.  And  in  such  cage  he  shall  also  deliver 
to  the  defendant,  or  his  attorney,  a  transcript  of  any  stay  of  execu- 
tion issued,  or  which  may  thereafter  be  issued,  by  him  on  such  judg- 
ment, which  may  be  in  like  manner  filed  and  docketed  in  the  office 
of  the  clerk  of  said  court.  The  time  of  the  receipt  of  the  transcript 
by  the  clerk  shall  be  noted  thereon  and  entered  on  the  docket ;  and 
from  that  time  the  judgment  shall  be  a  judgment  of  the  superior 
court  in  all  respects.  The  execiTtion  thereon  shall  be  issued  by  the 
clerk  of  the  superior  court  to  the  sheriff  of  the  county,  and  shall  have 
the  same  effect,  and  be  executed  in  the  same  manner,  as  other  execu- 
tions of  the  superior  court:   Provided,  however,  that  in  cases  of 


14T'J     COUETS— JUSTICES'— T'//7.  Judg.,  Execution.     Ch.   27 

appeal  to  the  superior  court  from  a  judgment  so  doeketetl,  wlu'ii 
judgment  is  reudered  in  the  superior  court  on  such  appeal,  the  lien 
acquired  by  the  docketing  of  such  justice's  judgment  shall  merge 
into  the  judgment  of  the  superior  coui-t,  and  continue  as  a  lien  from 
the  date  of  the  docketing  of  said  justice's  judgment,  and  be  superior 
to  any  other  judgment  docketed  subsequent  to  the  date  of  the  jus- 
tice's judgment  (prior  attachment  liens  and  judgment  on  same 
excepted),  and  the  clerk  of  the  superior  court  shall  carry  forward 
and  tax  into  the  jiidgmeut  of  the  superior  court  all  costs  incurred  in 
the  justice's  court,  including  transcript  and  docketing,  as  well  as 
all  costs  incurred  in  the  superior  court,  and  shall  issue  execution  only 
on  the  judgment  rendered  in  the  superior  court,  and  not  upon  the 
justice's  judgment.  And  when  judgment  is  rendered  in  the  su])erior 
court,  it  shall  be  the  duty  of  the  clerk  to  enter  upon  the  page  of  the 
judgment  docket  where  the  justice's  judgment  is  docketed,  as  fol- 
lows: "Judgment  in  superior  court.  .  .  .day  of ,  sec  Judgment 

Docket.  .  .  .,  page.  ..."  He  shall  date  same  and  sign  it  as  clerk: 
Provided  further,  that  when  the  judgment  of  the  superior  court  is 
satisfied,  it  shall  be  a  satisfaction  of  the  justice's  judgment,  and  the 
clerk  shall  so  note  such  satisfaction  on  the  record  of  the  justice's  judg- 
ment: Provided,  that  in  case  a  stay  of  execution  upon  such  judgment 
shall  be  granted,  as  provided  herein,  execution  upon  such  judgment 
shall  not  be  issued  by  the  clerk  of  the  superior  court  luitil  the  expira- 
tion of  such  stay.  A  certified  transcript  of  such  judgment  may  be  filed 
and  docketed  in  the  superior  court  clerk's  ofiice  of  any  other  county, 
and  with  the  like  effect,  in  every  respect,  as  in  the  county  where 
the  judgment  was  rendered,  except  that  it  shall  be  a  Hen  only  from 
the  time  of  filing  and  docketing  such  transcript. 
Code,  s.  839;   1903,  c.  179. 

1480.  Justice's  judgment  removed  to  another  county.  Any  per- 
son who  may  desire  to  have  a  justice's  judgment  in  his  favor  removed 
to  another  county  to  be  enforced  against  the  goods  and  chattels  of 
the  defendant,  miist  obtain  from  the  justice  who  rendered  the  judg- 
ment a  transcript  thereof,  under  his  hand ;  and  must  further  procure 
a  certificate  from  the  clerk  of  the  superior  court  of  the  county  where 
the  judgment  was  rendered,  under  the  seal  of  his  court,  that  the  jus- 
tice who  gave  the  judgment  was,  at  the  rendition  thereof,  a  justice 
of  said  county.  On  such  transcript  of  tlie  judgment,  thus  certified, 
any  justice  in  any  otlicr  county  may  award  execution  fen*  the  sum 
therein  expi'essed. 

Code,  s.   S-Ki. 

1481.  Execution,  when  issued  and  returnable.  Exccuiion  may 

be  issued  on  a  jiKlgment,  rendered  in  a  justice's  cnvirt.  at  any  lime 


1481    COUKTS— JUSTICES'— TV//.  Judci.,  Execution.    Ch.   27 

within  one  year  after  the  rendition  thereof,  and  shall  be  returnable 
sixty  days  from  the  date  of  the  same. 

Code,  s.  840,  Rule   14. 

1482.  Execution  on,  when  a  lien,  and  on  what.    Executions 

issued  by  a  justice,  which  maiist  be  directed  to  any  constable  or  other 
lawful  officer  of  the  county,  shall  be  a  lieu  on  the  goods  and  chattels 
of  the  defendant  named  tlierein,  from  the  levy  thereof  only,  but  shall 
not  be  levied  on  or  enforced  in  any  manner  against  real  estate;  but 
when  a  justice's  judgment  shall  be  made  a  judgment  of  the  superior 
court,  as  is  elsewhere  provided,  the  execution  shall  be  capable  of 
being  levied  and  collected  oiit  of  any  propert_y  of  the  defendant  in 
execution,  and  it  shall  be  a  lien  on  the  real  estate  of  said  defendant 
from  the  time  when  it  becomes  a  judgment  of  the  superior  court. 
Code,  s.  841;    1868-9,  c.   159,  s.  5. 

1483.  Stay  of  execution  granted  by  justice.    In  all  actions 

founded  on  contract,  whereon  judgments  are  rendered  in  justices' 
courts,  stay  of  execution,  if  prayed  for  at  the  trial  by  the  defendant 
or  his  attorney,  shall  be  granted  by  the  justices  in  the  following  man- 
ner :  For  any  sum  not  exceeding  twenty-five  dollars,  one  month ;  for 
any  siuu  above  twenty-five  dollars  and  not  exceeding  fifty  dollars, 
three  months ;  for  any  sum  above  fifty  dollars  and  not  exceeding  one 
hundred  dollars,  four  months ;  for  any  sum  above  one  hundred  dol- 
lars, six  months.  But  no  stay  of  execution  shall  be  allowed  in  any 
action  wherein  judgment  is  rendered  on  a  former  judgment  taken 
before  a  justice  of  the  peace. 
Code,  s.   842;    1868-9,  c.  272. 

1484.  Security  on  stay  of  execution.    The  party  praying  for  a 

stay  of  execution  shall,  within  ten  (hiys  after  the  trial,  give  sufficient 
security,  aj^proved  by  the  justice,  for  pa^^nent  of  the  judginent, 
with  interest  thereon  till  paid,  and  cost;  and  the  acknowledgment 
of  the  surety,  entered  by  the  justice  in  his  docket  and  signed  by  the 
surety,  shall  be  sufficient  to  bind  such  surety.  If  the  judgment  be 
not  discharged  at  the  time  to  which  execution  has  been  stayed,  the 
justice  who  awarded  the  judgment  shall  is.sue  execution  against  the 
principal,  or  surety,  or  both. 

Code,  s,  843. 

1485.  Execution  stayed;  undertaking  on  appeal  before  clerk. 

If  an  appellant  desire  a  stay  of  execution  of  the  judgment,  he  may 
.apply,  at  any  time,  to  the  clei'k  of  the  appellate  court  for  lea\'e  to  give 
the  undertaking,  as  jn-ovided  in  a  subsequent  section;  who  shall,  ujion 
the  imdertaking  being  given,  make  an  order  that  all  proceedings  on 
the  judgment  be  stayed. 
Code,  s.  882. 

421 


1486    COURTS— JUSTICES'— T7/7.  Jmhj.,  Execution.    Ch.   27 

1486.  Undertaking  on  appeal  before  justice.    In  all  cases  of 

apjx'al  from  justices"  cnurts  the  aiipellant  inav  <:ivc  an  luulertaking 
for  the  appeal  before  the  justice  who  tried  the  cause,  and  who  shall 
indorse  his  approval  thereon,  instead  of  before  the  clerk  of  the  appel- 
late court. 

Code,  s.  883;   KSliO-TO,  c.  187. 

1487.  Undertaking  on  appeal;  what  to  contain.  The  undertak- 
ing shall  be  in  writing,  executed  bv  one  nr  more  sufficient  sureties, 
to  be  approved  by  the  justice  or  clerk  making  the  order,  to  the 
effect  that  if  judgment  be  rendered  against  the  appellant,  the  sure- 
ties will  pay  the  amount  together  with  all  costs  awarded  against  the 
appellant,  and  when  judgment  shall  be  rendered  against  the  appel- 
lant, the  appellate  court  shall  give  judgment  against  the  said 
sureties. 

Code,   s.   884;    1879,   c.   68. 

1488.  Delivery  of  undertaking,  execution  stayed;  copy  served 

on  appellee.  A  delivery  of  a  ccrtitied  copy  of  the  order,  hereinbefore 
mentioned,  to  the  justice  of  the  jieace,  shall  stay  the  issuing  of  an 
execution  on  the  judgment;  if  it  has  been  issued,  the  service  of  a 
certified  copy  of  such  order  on  the  officer  holding  the  execution  shall 
stay  further  proceedings  thereon.  A  certified  copy  of  such  order 
shall  also  be  served  on  the  resiiondent,  or  on  his  agent  or  attorney, 
within  ten  days  after  the  making  thereof. 
Code,  s.  885. 

IX.     Api'kal. 

1489.  New  trial  not  allowed;  either  party  may  appeal.  A  new 

trial  is  not  allowed  in  a  justice's  court  in  any  case  whatever;  but 
either  party  dissatisfied  with  the  judgment  in  such  court  may  appeal 
therefrom  to  the  superior  court,  as  hereinafter  prescribed. 

Code,  s.  865. 

Note.     See  s.  1478. 

1490.  Does  not  stay  execution.  Xo  apiieal  shall  ]n-event  the 
issuing  of  an  execution  on  a  jtidgment,  or  work  a  stay  thereof,  except 
as  hereinafter  provided. 

Code,   s.   87.''):    1876-7,  c.   251,   s.   6. 

1491.  Appeal,  when  and  how  taken.  The  ajipellant  siiall,  within 

ten  days  after  judgment,  serve  a  notice  of  appeal,  stating  the  grounds 
upon  which  the  appeal  is  founded.  If  the  judgment  is  ren<lered 
ujKin  process  not  personally  served,  and  the  defendant  did  not  ajipcar 


1491  COURTS— JUSTICES'— 7X.  Appeal.  Ch.  27 

and  answer,  he  shall  have  fifteen  days,  after  personal  notice  of  the 
rendition  of  the  judgment,  to  serve  the  notice  of  appeal  herein  pro- 
vided for. 

Code,   s.   876;    1876-7,   c.   251,   s.    7. 

1492.  Notice  in  open  court  sufficient.  Where  any  party  prays 
an  appeal  from  a  judgment  reudcTLd  in  a  justice's  court,  and  the 
adverse  party  is  present  in  person  or  by  attorney  at  the  time  of  the 
prayer,  the  appellant  shall  not  be  compelled  to  give  any  written  notice 
of  appeal  either  to  the  justice  or  to  the  adverse  party. 

Code,  s.  877;  1869-70,  c.  187;  1876-7,  c.  251,  s.  8. 

1493.  Justice  to  mal<e  return  of  within  ten  days.  The  justice 

shall,  within  ten  days  after  the  service  of  the  notice  of  appeal  on  him, 
make  a  return  to  the  appellate  court  and  file  with  the  clerk  thereof 
the  papers,  proceedings  and  judgment  in  the  case,  with  the  notice  of 
appeal  served  on  him.  lie  may  be  compelled  to  make  such  return 
by  attachment.  ]')Ut  no  justice  shall  be  bound  to  make  such  return 
until  the  fees,  prescribed  by  law  for  his  service,  be  paid  him.  The 
fee  so  paid  shall  be  included  in  the  costs,  in  case  the  judgment 
appealed  from  is  reversed. 
Code,  s.  878. 

1 494.  Defective  return  amended.  If  the  return  be  defective,  the 
judge  or  clerk  of  the  appellate  court  may  direct  a  further  or  amended 
retTirn  as  often  as  may  be  necessary,  and  may  compel  a  compliance 
with  the  order  by  attachment. 

Code,  s.  879. 

1495.  Restitution,  when  ordered,    if  the  judgment  appealed 

from,  or  any  part  thereof,  be  paid  or  collected,  and  the  judgment 
be  afterwards  reversed,  the  appellate  court  shall  order  the  amount 
paid  or  collected  to  be  restored,  with  interest  from  the  time  of  such 
payment  or  collection.  The  order  may  be  obtained  on  proof  of  the 
facts  made  at  or  after  the  hearing  of  the  appeal,  on  a  previous  notice 
of  six  days.  If  the  order  be  obtained  before  the  judgment  of  rever- 
sal is  entered,  the  amount  may  be  included  in  the  judgment. 
Code,  s.  886. 

X.     Forms. 

1496.  Forms  to  be  used  in  justice's  court.     The  following 

forms,  or  substantially  similar  ones,  shall  be  sufficient  in  all  eases  of 
proceedings  in  civil  actions,  provided  for  in  this  chapter: 


423 


14W  COUKTS— JUSTICES"— X.  Forms.  Cli.  27 

LXo.  1.] 

SUMMONS. 

North  Carolina, County, Townsliip. 

A B -j 

against  I  Before   ,  Justice  of  the  Peace. 

C D J 

State  of  North  Carolina,  to  any  constable  or  other  lawful  olliocr  of 

county — Greeting: 
We  command  you  to  summon  C.  D.  to  appear  before  G.  \V.  H.,  E.sq.,  one  of 

the   justices   of   the   peace   for   the  county   of ,   on   the day   of 

19.  .  .  .,  at  his  otEce    (or  elsewhere,  as  the  justice  may  appoint  the 

place  of  trial),  in to\\Tiship,  to  answer  A.  B.  in  a  civil  action  for  the 

recovery  of dollars:  and  have  you  then  and  there  this  precept  with  the 

date  and  manner  of  its  service. 

Herein  fail  not.     Witness  our  said  justice,  this day  of 1!) .  .  .  . 

G.  W.  H 

Justice  of  the  Peace 
[No.   2.] 

SUMMONS  ON  ALLOWING  APPLICATION  TO  REHEAR. 
(Title,  etc.,  as  in  No.   1.) 

Whereas,  A.  B.,  plaintitT  above  named  (or  C.  D.,  defendant  above  named) 
has  applied  by  affidavit,  which  is  filed,  for  a  rehearing  in  the  above-entitled 
action,  wherein  judgment  was  rendered  against  the  said  plaintiff   (or  defendant), 

in  his  absence,  at  the  trial  thereof,  before  the  undersigned  on  the day  of 

19....;   and  such  application  having  been  allowed,  and  the  cause 

opened  for  reconsideration ; 

Now,  therefore,  we  command  you  to  summon  the  said  plaintiflf  (or  defendant) 
to  appear  before  G.  W.  H.,  Esq.,  one  of  the  justices  of  the  peace  for  the  county 

of on  the day  of 19 ,  at ,  in  said 

county,  when  and  where  the  complaint  will  be  reheard  and  the  same  proceedings 
be  had  as  if  the  case  had  not  been  acted  on;  and  have  you  then  and  there  this 
precept   with   the  date  and  manner  of   its  service. 

Herein  fail  not.     Witness  our  said  justice,  this dav  of 19.  .  .  . 

G.  W.  H 

Justice  of  the  Peace. 

[No.   3.] 

AFFIDAVIT  TO   OBTAIN   ATTACHMENT. 
(Title  as  in  No.  1.) 

A.  r..,  plaintiff  above  named,  being  duly  sworn,  deposes  and  says: 

1.  That  the  defendant  C.  D.  is  indebted  to  the  plaintiff  in  the  sum  of 

dollars  (state  any  cause  of  action  founded  on  contract,  specifying  the  amount 
of  the  claim  and  the  grounds  thereof). 

2.  That  the  said  defendant  (state  any  fact  or  facts,  so  as  to  bring  the  case 
within  one  of  the  classes  in  which  an  attachment  may  issue.  Tlie  facts  must  be 
stated  positively  and  affirmatively,  not  merely  upon  information  and  belief,  except 
where  a  fact  is  alleged  with  a  particular  intent.  The  intent  in  such  case  may  be 
stated  as  on  information  and  belief.     See  No.  4.) 

A B 

Sworn  to   and   subscribed  before  me,  this dav   of 19.  .  .  . 

G.  W.  H 

Justice  of  the  Peace. 
424 


1496  COURTS— JUSTICES'— X.  Forms.  Ch.   27 

I'So.  4.] 

ANOTHER  FORM  OF  AFFIDAVIT  TO  OBTAIN  ATTACHMENT. 

(Title,  etc.,  as  in  No.   1.) 

A.   B.,  plaintitT  above  named,  being  duly   sworn,  deposes  and  says: 

1.  That  tlie  defendant  C.  D.  is  indebted  to  plaintilT  in  the  sum  of 

dollars  for  goods  sold  and  delivered  to  said  defendant  by  the  plaintiff  on  or 
about  the day   of 19.  .  .  . 

2.  That  the  said  defendant  has  departed  from  this  state,  or  keeps  himself  con- 
cealed therein  with  intent,  as  defendant  is  informed  and  believes,  to  avoid  the 
service  of  a  summons  (or  with  intent,  etc.,  to  defraud  defendant's  creditors). 

A.  B 

(Sworn  to,  etc.,  as  in  No.  3.) 

[No.   5,] 
AFFIDAVIT  AGAINST  A  FOREIGN  CORPORATION. 

North  Carolina, County. 

A B y 

against  y  Before ,  Justice  of  the  Peace. 

The  Highland  Mining  Co.  J 

A.  B.,  the  plaintiff  above  named,  being  duly  sworn,  deposes  and  says: 

1.  That  the  defendant  above  named  is  indebted  to  the  plaintiff  in  the  sum  of 

dollars,  for  the  use  and  occupation  of  certain  premises,  by  permission 

of    plaintiff,    from    the day    of 19.  .  .  .     until    the day    of 

19..  . . 

2.  That  the  defendant  is  a  foreign  corporation,  created  under  the  laws  of  the 
state  of 

3.  That  the  cause  of  action  above  stated  arose  in  this  state. 

A.  B 

(Sworn  to,  etc.,  as  in  No.  3.) 

[ITo.   6.] 

UNDERTAKING  UPON  ATTACHMENT. 

(Title  as  in  No.  I  or  No.  5.) 

Whereas,  the  plaintiff  above  named  is  about  to  apply  for  a  warrant  of  attach- 
ment against  the  property  of  the  above-named   defendant : 

Now,  therefore,  we,  J.  W.  B...of county,  and  W.  D.  il.,  of 

county,  undertake  in  the  sum  of dollars    (the  sum  must  be  at  least  two 

Iiundred  dollars),  that  if  the  said  warrant  be  granted,  and  the  defendant  recover 
judgment  in  this  action,  or  the  attachment  be  set  aside  by  order  of  the  coui-t. 
the  plaintiff  shall  pay  all  costs  that  may  be  awarded  to  defendant  in  the  same, 
and  all  damages  which  he  may  sustain  by  reason  of  such  attachment. 

J.  W.   B 

W.  D.  M 

Signed   and   delivered   in   the   presence   of   G.   W.   H.,    Esq..   this dav   of 

19 

G.  W.  H 

Justice  of  the  Peace. 

425 


1496  COUKTS— JUSTICES'— A'.  Forms.  Cli.  27 

[No.  7.] 

WARRANT  OF  ATTACHMENT. 

(Title  as  in  No.  1  or  No.  5.) 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county — Greeting: 

It  appearing  by  affidavit  to  the  undersigned  that  a  cause  of  action  exists  in 

favor  of  the  plaintiflF  against  the  defendant  for  the  sum  of dollars, 

and  that  the  defendant  is  not  a  resident  of  this  state  (or  otherwise,  as  the  fact 
may  be),  and  the  plaintiff  having  given  the  undertaking  as  required  by  law; 

Now,  therefore,  j'ou  are  commanded  forthwith  to  attach  and  safely  keep  all 
the  property  of  the  said  defendant  C.  D.  in  your  county,  or  so  much  thereof  as 
may  be  sufficient  to  satisfy  the  said  plaintiff's  demand,  with  costs  and  e.^penses; 
and  have  you  this  warrant  before  G.  W.  H.,  one  of  the  justices  of  the  peace  for 

your  county,  at  his  office  in  said  county,  on  the day  of 19.  .  . . 

with  your  proceedings  hereon. 

Witness  our  said  justice,  this day  of 19 ...  . 

G.  W.  H 

Justice  of  the  Peace. 

[No.  8.] 

OFFICER'S  RETURN  TO  BE  INDORSED  ON  ATTACHMENT. 

I,  O.  P.  M.,  constable  (or  sheriff)  of county,  do  hereby  return  that, 

by  virtue  of  the  within  attachment,  I  have  seized  and  taken  into  my  possession 
the  tangible  personal  property  (or,  have  levied  on  the  real  estate,  as  the  case  may 
be)    of  the  defendant  within  named,  specified   in  the   inventory   liereto  annexed. 

Dated  this day  of 19  ...  . 

0.  P.  M 

[No.  9.] 

INVENTORY  OF  PROPERTY  ATTACHED  TO  ABOVE  RETURN. 

(Title  as  in  No.  1  or  No.  5.) 

I  do  hereby  certify  that  the  following  is  a  true  and  just  inventory  of  all  the 
property  seized  or  levied  on  by  me  under  a  warrant  of  attachment,  issued  in  the 
above-entitled  action  by  G.  W.  H.,  Esq.,  with  a  statement  of  the  books,  vouchers, 
papers,  rights  and  credits  taken  into  my  custody  by  virtue  of  said  warrant. 
(Insert  list  of  property  by  items.) 

I  do  further  testify  that  the  following  property  mentioned  in  the  above  inven- 
tory is  perishable,  and  that  the  expense  of  keeping  the  same  until  the  termination 
of  the  .suit  would  exceed  one-fifth  of  its  value:  and  I  do  hereby  apply  to  this 
court  for  authority  to  sell  the  same.      (Insert  a  list  of  perishable  property.) 

Dated  this day  of 19 

o.  P.  :m 

Constable   (or  Sheriff). 

[No.   10.] 

ORDER  DIRECTING   SALE   OF  PERISHABLE   PEOPERT^^ 

(Title  as  in  No.  I  or  No.  5.) 

It  appearing  by  the  inventory  returned  by  0.  P.  M.,  constable  (or  sheriff), 
under    the    warrant    of    attachment    granted    in    this    action,    (hat    the    following 


1496  COUETS— JUSTICES'— X.  Forms.  Ch.  27 

property  mentioned  in  said  inventory  is  perishable,  to- wit :      ( Insert  here  the  list 
of  perishable  property.) 

It  is  therelore  ordered  that  the  said  property  be  sold  by  the  said  olHeer  at 
public  auction,  at  such  time  and  place  as  he  shall  deem  advisable,  and  that  the 
said  oliicer  give  notice  of  such  sale  as  the  sale  of  personal  property  on  execution. 
It  is  further  ordered  that  the  proceeds  of  such  sale  be  retained  by  said  officer, 
and  disposed  of  in  the  same  manner  as  the  property  itself,  if  the  same  had  not 
been  sold. 

Dated  this day  of 19 

G.  W.  H 

Justice  of  the  Peace. 
[No.    11.] 

NOTICE  OF  LEVY  ON  PROPERTY  NOT  CAPABLE  OF  MANUAL  DELIVERY. 

To  H.  B : 

Take  notice  that  by  warrant  of  attachment  issued  in  this  action,  a  certified 
copy  of  which  is  herewith  served  upon  you,  I  have  levied  upon,  and  do  hereby 

levy  upon,  3'our  indebtedness,  amounting  to dollars   or  thereabouts, 

to  the  defendant  above  named.      (Describe  as  particularly  as  possible  the  shares, 
debts  or  property  levied  upon. ) 

Dated  this day  of 19 O.  P.  M 

Constable   (or  Sheriff). 

The  officer  will  indorse  on  the  copy  of  the  attachment  served  with 
the  above  notice   the  following  certificate: 

I  do  hereby  certify  that  the  within  is  a  true  copy  of  the  warrant  of  attachment 
in  my  possession,  issued  in  this  action,  and  of  the  whole  thereof. 
Dated  this day  of 19 


[No.  12.] 


0.  P.  M 

Constable  {or  Sheriff). 


ORDER   DIRECTING   THIRD   PERSON    (H.   B.)    TO   APPEAR   AND 
BE  EX-AMINED. 

(Title  as  in  No.  1  or  No.  5.) 

It  appearing  to  me  by  the  certificate  of  0.  P.  M.,  constable  (or  sheriff)  of 
said  county,  that  the  said  officer,  witli  a  warrant  of  attachment  against  the 
property  of  C.  D.,  the  defendant  in  this  action,  has  applied  to  H.  B.  for  the 
purpose  of  le\'ying  upon  a  debt  owing  to  the  defendant  by  said  H.  B.  (or  upon 
property  of  said  defendant  held  by  said  H.  B.,  or  otherwise),  and  that  the  said 
H.  B.  refuses  to  furnish  said  officer  with  a  certificate  designating  the  amount 
of  the  debt  owing  by  said  H.  B.  to  the  defendant,  or  the  amount  and  description 
of  the  property  held  by  said  H.   B.   for  the  benefit  of  the  defendant. 

Now,  therefore,  I  do  order  and  require  the  said  H.  B.  to  attend  before  me  at 
my  office  on  the daj'  of 19.  .  .  .,  and  be  examined  on  oath  con- 
cerning the  same. 

Dated  this day  of 19 

G.  W.  H 

Justice  of  the  Peace. 

[No.  13.] 

ATTACHIIENT  TO  ENFORCE  OBEDIENCE  TO  ABOVE  ORDER. 

(Title  as  in  No.  1  or  No.  5.) 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county — Greeting : 

Whereas,  it  appears  that  H.  B.  was  duly  served  on  the day  of   

19.  .  .  .  with  an  order  issued  by  G.  W.  H.,  Esq.,  one  of  our  justices  of  the  peace 

427 


1496  COUETS— JUSTICES'— X.  Forms.  Ch.  27 

lor  said  county,  requiring  said  H.  B.  to  attend  before  said  justice  at  his  office, 

in  said  county,  on  the    day  of    19 ...  .    and  be  examined  on 

oath  concerning  a  certain  debt  owing  to  the  defendant,  named  in  the  above 
action,  by  the  said  H.  B.  (or  property  lield  by  the  said  H.  B.  for  the  benelit  of 
the  defendant,  or  otlierwise,  as  the  case  may  he). 

And  whereas,  the  said  H.  B.,  in  contempt  of  said  order,  has  refused  or  neglected, 
and  dotli  still  refuse  or  neglect,  to  appear  and  be  examined  on  oath,  as  in  said 
order  he  is  required  to  do; 

Now,  therefore,  we  command  you  that  you  forthwith  attach  the  said  H.  B.,  so 
as  to  have  his  body  before  G.   \V.  H.,  Esq.,  one  of  our  justices  of  the  peace  for 

your  county,  on  the day  of 19.  .  .  .   at  his  olBce,  in  said  county, 

then  and  there  to  answer,  touching  the  contempt  which  lie,  as  is  alleged,  hath 
committed  against  our  authority;  and  further,  to  perform  and  abide  by  such 
order  as  our  said  justice  shall  make  in  his  behalf.  And  have  you  then  and 
there  this  writ,  with  a  return,  under  your  hand,  of  your  proceedings  thereon. 

Hereof  fail  not,  at  your  peril. 

Witness,  our  said  justice,  this day  of 19  ...  . 

G.  W.  H..  .... 

Justice  of  the  Peace. 

[^"o.   14.] 

UNDERTAIvING  ON  DISCHARGE  OF  ATTACHMENT. 

(Title  of  the  cause  as  in  No.  1.) 

Whereas,  the  property  of  the  above-named  C.  D.  has  been  attached,  and  the 
defendant  desires  a  discharge  of  said  attachment  on  giving  security  according 
to   law; 

Now,  therefore,  we,  B.   B.,  of county,  and  D.  D.,   of 

county,  undertake  in  the  sum  of dollars   (the  sum  named  must  be  at 

least  double  the  amount  claimed  by  plaintilT),  that  if  the  said  attachment  be 
discharged  we  will  paj'  to  the  plaintifi',  on  demand,  the  amount  of  the  judgment 
that  may  be  recovered  against  the  defendant  in  this  action. 

Dated  this day  of 19 

( Signed. ) 

B.  B 

D.  D 

Signed  and  delivered  in  the  presence  of  G.  W.   H.,  Esq..  this    day  of 

19.... 


Justice  of  the  Peace. 
ACKNOWLEDGMENT  AND  AFFIDAVIT  OF  SURETIES. 

North  Carolina,    County. 

On   this day   of 19....    before   me   personally   appeared    the 

above  named  B.  B.  and  D.  D.,  known  to  me  to  be  the  persons  described  in  and 
who  executed  the  above  undertaking,  and  severally  acknowledged  that  they  exe- 
cuted the  same. 

And  the  said  B.  B.  and  D.  D..  being  severally  sworn,  each  for  himself,  says 
that  he  is  a  resident  of  the  State  of  North  Carolina  and  a  householili'r  (or  free- 
holder) therein. 

B.  B 

D.  n 

Sworn   and   subscribed  before  me  the  day  above   written. 

G.  W.  H 

Justice  of  the  Peace. 

428 


149G  COUKTS— JUSTICES'— X.  Fonns.  Ch.  27 

[No.   15.] 

ORDER  VACATING  ATTACHMENT  ON  SECURITY  BEING  GIVEN. 

(Title  as  in  No.  1  or  No.  5.) 

The  defendant  having  appeared  in  this  action  and  applied  to  discharge  the 
attachment  on  giving  security,  and  the  said  defendant  having  delivered  to  the 
court  an  undertaking  in  due  form  of  law,  which  has  been  duly  approved  by 
the  court; 

It  is  ordered  that  the  attachment  issued  in  this  action  on  the day   of 

19.  .  .  .   be  and  the  same  is  hereby  vacated  and  discharged,  and  tlie 

defendant  is  released  therefrom  in  all  respects.  It  is  further  ordered  that  any 
and  all  proceeds  of  sales  and  money  collected  by  0.  P.  M.,  constable  (or  sheriff'), 
and  all  property  attached,  now  in  said  ollicer's  possession,  be  paid  and  delivered 
to  the  said  defendant  or  his  agent. 

Dated  this day  of 19 

G.  W.  H 

Justice  of  the  Peace. 
[No.   16.] 

FORM  OF  PUBLICATION  TO  BE  MADE  BY  PLAINTIFF  IN  ATTACHMENT. 
(Title  as  in  No.  1.) 

[Amount  sued  for]  due  by  note   (or  otherwise  as  the  fact  may  be).     Warrant 

of  attachment  returnable  before  G.  W.  H.,  Esq.,  a  justice  of  the  peace  for 

county.  North  Carolina,  at  his  office   (or  otherwise  as  the  case  may  be),  on  the 

day  of 19.  .  .  .,  when  and  where  the  defendant  is  required  to 

appear  and  answer  the  complaint. 

Dated  this day  of 19 

A.  B ,  Plaintiff. 

[No.  17.] 

AFFIDAVIT  FOR  ARREST  ON  DEBT  FRAUDULENTLY  CONTRACTED. 
(Title  as  in  No.  I.) 

A.  B.,  plaintiff  above  named,  being  duly  sworn,  deposes  and  says: 

1.  That  the  defendant  C.  D.  is  indebted  to  the  plaintiff  in  the  sum  of 

dollars  on  an   inland  bill   of  exchange,  drawn   on  the day   of 

19....  by  defendant  on  the  First  National  Bank  of  Charlotte,  North  Carolina, 
payable  at  sight  to  the  order  of  plaintiff. 

2.  That  on  the day  of 19 ...  .    the  defendant  applied  to  the 

plaintiff  to  purchase  a  bill  of  goods  amounting  to.. dollars,  which  the 

plaintiff'  off'ered  to  sell  to  the  defendant  for  cash ;  that  the  defendant,  contriving 
to  defraud  the  plaintiff,  represented  that  he  had  money  on  deposit  at  said 
National  Banlc  for  more  than  the  amount  of  the  proposed  purchase,  and  off'ered 
to  give  plaintiff  a  sight  draft  on  said  bank;  that  the  plaintiff,  relying  upon  the 
representations    of    the    said    defendant,    and    solely    induced    thereby,    sold    and 

delivered   a   bill   of   goods   amounting  to dollars   to   the   defendant,   who 

thereupon  drew  the  sight  order  on  said  bank  above  referred  to;  that  on  the.  .  .  . 

day   of 19....    the   plaintiff   presented    said    draft   at    snid    bank    for 

acceptance,  when  the  same  was  not  accepted  for  want  of  any  funds  in  said 
bank  to  the  credit  of  the  defendant;  that  notice  of  nonacceptance  was  given  to 
the  defendant,  who  has  wholly  refused  to  pay  the  draft  or  any  part  thereof; 
that  the  representations  made  as  aforesaid  by  the  defendant  were,  and  each  and 
every  of  them  was.  as  deponent  is  informed  and  believes,  untrue;   and  that  the 

429 


149(>  COUETS— JUSTICES'— A'.  Forms.  Ch.  27 

defendant,  as  deponent  is  informed  and  believes,  did  not  have,  nor  expect  to 
have,  any  funds  on  deposit  at  said  bank  at  the  making  of  the  representations 
above  mentioned,  but  said  defendant  was  then  and  is  now  wholly  insolvent. 

A.  B 

Sworn   to  and   subscribed   before   me,  this day   of 19 ...  . 

G.  W.  H 

Justice  of  the  Peace. 

[No.  18.] 

UNDERTAKING   ON   ARREST. 

(Title  as  in  No.  1.) 

Whereas,  the  plaintiff  above  named  is  about  to  appl}'    (or,  has  applied)    for 
an  order  to  arrest  the  defendant,  C.  D, ; 

Now,  therefore,  we,  J.  J.,  of county,  and  P.  P.,  of county, 

undertake  in  the  sum  of dollars   (the  sum  must  be  at  Iea.st  one  hundred 

dollars),  that  if  the  said  defendant  recover  judgment  in  this  action  the  plaintiff 
will  pay  all  costs  that  may  be  awarded  to  the  said  defendant  and  all  damages 
which  he  may  sustain  by  reason  of  his  arrest  in  this  action. 

J.    J 

P.    P 

Signed  in  mj'  presence,  this day  of 19.  .  .  . 

G.  W.  H 

Justice  of  the  Peace. 

[No.  19.] 

ORDER  OF  ARREST. 
(Title  as  in  No.  1.) 

North  Carolina, County, Township. 

To  any  constable  or  other  lawful  officer  of  said  county: 

For  the  causes  stated  in  the  annexed  affidavit,  you  are  required  forthwith  to 

arrest  C.  D..  the  defendant  named  above,  and  hold  him  to  bail  in  the  sum  of 

dollars  (the  sum  should  be  the  amount  of  the  plaintiflT's  claim),  and  to  return  this 

order  before  the  undersigned  at  his  office  in  said  county,  on  the   day  of 

,  19 .  .  .  .  ;  of  which  return  you  will  give  notice  to  plaintiff  or  his  attorney. 

Dated  this day  of 19 

G.  W.  H 

Justice  of  the  Peace. 

[No.  20.] 

UNDERTAKING  OF  BAIL  ON  ARREST. 

(Title  as  in  No.  1.) 

Whereas,  the  above  named  defendant,  C.  D.,  has  been  arrested  in  this  action; 

Now,  therefore,  we.  B.  B.,  of   county,  and  D.  D.,  of   county, 

undertake  in  the  sum  of  dollars  (the  sum  should  be  the  same  as  men- 
tioned in  the  order  of  arre.st),  that  if  the  defendant  is  discharged  from  arrest  he 
shall  at  all  times  render  him.self  anienable  to  the  process  of  the  court  during  the 
pendencv  of  this  action,  and  to  such  as  niav  he  issued  to  enforce  judgment  therein. 

B.  B 

D.  D 

Signed  in  my  presence,  this day  of 19 ...  . 

G.  W.  H 

Justice  of  the  Peace. 
(Signed.) 

430 


1496 


COUETS— JUSTICES'— X.  Forms. 


Ch.  27 


[No.  21.] 
NOTICE  OF  EXCEPTION  TO  BAIL. 

(Title  as  in  No.  1.) 

To  0.  P.  M.,  constable    (or  sheriff)    of  the  county  of : 

Take  notice,  that  the  plaintiff  does  not  accept  the  bail  offered  by  the  defendant 
in  this  action    (and  if  the   undertaking  is  defective  in  foi'm   or  otherwise,   add 
also),  and  further  he  excepts  to  the  form  and  sufficiency  of  the  undertaking. 
Yours,  etc., 

A.  B Plaintiff. 

( or,  M.  W.  N Attorney  for  Plaintiff. ) 

Dated  this day  of 19 

[No.    22.] 

NOTICE  OF  JUSTIFICATION  OF  BAIL. 

(Title  as  in  No.  1.) 

To  A.  B.,  plaintiff   (or,  M.  W.  N.,  attorney  for  plaintiff)  : 

Take  notice,  that  the  bail  in  this  action  will  justify  before  G.  W.  H.,  Esq.,  a 
justice  of  the  peace  for  said  county,  at  the  ofliee  of  said  justice,  in  said  county, 

on  the day  of 19.... 

CD 

(or,  attorney  for  C.  D.),  Defendant. 
Dated  this day  of 19 


[No.    23.] 

NOTICE  OF  OTHER  BAIL. 

(Title,  etc.,  as  in  No.  1.) 

Take  notice  that  R.  S.,  of count}'  (physician) ,  and  Y.  Y.,  of 

county  (farmer),  are  proposed  as  bail,  in  addition  to  (or  in  place  of)  B.  B.  and 
D.  D.,  the  bail  already  put  in;  and  that  they  will  justify  (conclude  as  in  last 
form ) .     Dale,  etc. 

[No.  24:.] 

JUSTIFICATION  OF  BAIL. 

(Title  as  in  No.  1.) 

On   this day   of 19....    before   G.  ■  W.   H.,   Esq.,   a    justice   of 

the  peace  for  said  county,  personally  appeared  B.  B.  and  D.  D.  (or  R.  S.  and 
Y.  Y.,  as  the  case  may  be),  the  bail  given  by  the  defendant  C.  D.  in  this  action, 
for  the  purpose  of  justifying  pursuant  to  notice;  and  the  said  B.  B.,  being  duly 
sworn,  says: 

1.  That  he  is  a  resident  and  householder   (or  freeholder)   in  this  state; 

2.  That  he  is  worth  the  sum  of dollars    (the  amount  specified   in  the 

order  of  arrest),  exclusive  of  property  exempt  from  execution. 

And  the  said  D.  D.,  being  duly  sworn,  says: 

(As  with  the  other  bail.) 

(And  so  on  with  each  bail  offered.) 

(Signatures  of  bail.) 

Examination  taken  and  sworn  to  before  me,  this day  of 19.  .  . . 

G.  W.  H 

Justice  of  the  Peace. 
431 


14'JG  COUKTS— JUiSTICES"— A'.  Forms.  Cli.   27 

[Xo.  25.] 
ALLOWAN'CE  OF  BAIL. 

(Title  as  in  No.  1.) 

The  bail  of  the  defendant,  C.  D.,  within  mentioned,  having  appeared  before 
me  and  justiiicd,  I  do  find  the  said  bail  .sullieient  and  allow  the  same. 

Dated  this dav  of 10  ... . 

G.  W.  n 

Justice  of  the  Peace. 

[jSTo.  26.] 
subpoena  to  testify. 

State  of  North  Carolina,   County. 

To    S.    T ,    greeting:     (the    justice    may    insert    any    number    of    necessary 

names ) . 
You    (and  each  of  you)   are  commanded  to  appear  personally  before  G.  W.  H., 
Esq.,  a  justice  of  the  peace  for  said  county,  at  his  oHice  in  said  county,  on  the 

day  of 19.  .  .  .    to  give  evidence   in   a   certain   civil   action   now 

pending  before  said  justice,  and  then  and  there  to  be  tried,  between  A.  B.,  plain- 
tiff, and  C.  D.,  defendant,  on  the  part  of  the  defendant  (or  plaintiff).*  Herein 
fail   not,   under  the   penalty   prescribed  by   law.     Witness  oiir   said  justice,  this 

day  of 19 

G.  W.  H 

Justice  of  the  Peace. 
[jSTo.  27.] 

iN".  B. — The  justice  may,  instead  of  a  formal  subpoena,  indorse  on 
the  siunmons  or  other  process  an  order  for  witnesses,  substantially 
as  follows: 

The  officer  to  whom  the  within  process  is  directed  will   summon  the  following 

persons  as  witnesses  for  the  plaintiff: :    and   the  following  as 

witnesses  for  the  defendant: :  and  will  notify  all  such  wit- 
nesses to  appear  and  testify  at  the  time  and  place  within  named  for  the  return 
of  this  process. 

Dated  this da v  of 19 

G.  W.  H 

Justice  of  the  Peace. 

[No.  2S.] 

SUBPOENA  DUCES  TECUM. 

Tf  any  witness  has  a  paper  or  document,  which  a  party  desires  as 
evidence  at  the  trial,  the  ju.stice  will  pursue  the  form  Xo.  2fi  as 
far  down  as  the  asterisk  (*)  and  tlicn  add  tlie  followiue:  clause: 

And  you,  S.  T.,  are  also  commanded  to  bring  with  you  and  there  produce  as 
evidence  a  certain  bond  (describe  particularly)  which  is  now  in  your  possession 
or  under  your  control,  together  with  nil  papers,  documents,  writings  or  instru- 
ments in  your  custody,  or   under   your  control.      (Conclude  as   in   form   No.   '20.) 

432 


1496  COURTS— JUSTICES'— A'.  Forms.  Ch.   27 

[No.  29.] 

FORM  OF  OATH  OF  WITNESS. 

You  swear  that  the  evidence  you  will  give  as  to  the  matters  in  ditference 
between  A.  B.,  plaintiff,  and  C.  D.,  defendant,  shall  be  the  truth,  the  whole 
tiuth,  and  nothing  but  the  truth.     So  help  you,  God. 

[iVo.  30.] 

PROCEEDINGS  AGAINST  DEFAULTING   WITNESS. 

When  a  witness,  under  subpoena,  fails  to  attend,  the  justice  will 
note  the  fact  in  his  docket  by  some  such  entry  as  the  following : 

R.  P.,  a  witness  summoned  on  behalf  of  the  plaintiff,  called  and  failed. 

If  the  party  who  suffers  by  default  of  the  witness  wishes  to  move 
for  the  penalty  against  himi,  he  will  serve  substantially  the  follow- 
ing notice  on  the  witness : 

(Title  as  in  No.  1.) 
To  R.  P.: 

Take  notice,  that  on  the day  of 19.  .  .  .    the  plaintiflf  in  the 

above  action  will  move  G.  W.  H.,  Esq.,  the  justice  before  whom  the  trial  of  said 

action   was   had,  on  the day   of 19....    for   judgment    against 

you  for  the  sum  of dollars,  forfeited  by  reason  of  your  failure  to  appear 

and  give  evidence  on  said  trial  as  you  were  summoned  to  do. 

Dated  this day  of 19 

A.  B ,  Plaintiff. 

The  justice  will  enter  the  proceedings  on  the  foregoing  notice  on 
his  docket  as  follows: 

A B 1  Motion  for  penalty  against  R.  P.,  defaulting  witness. 

against  I  Justice's  Court. 

C D J 

day  of 19 ...  .   A.  B.,  above  named,  appears,  and,  according 

to  a  notice  filed  and  duly  served  on  R.  P.,  moved  for  the  penalty  of 

dollars  forfeited  by  the  said  R.  P.  by  reason  of  his  failure  to  attend  and  give 
evidence  on   the  trial   of   a   cause,  wherein   A.   B.   was  plaintiff   and   C.  D.   was 

defendant,    tried   before   me   at   my   office   on   the day   of 19.  .  .  . 

as  appears  by  entry  duly  made  on  my  docket;  when,  and  where  the  said  R.  P., 
a  witness  summoned  on  the  part  of  the  plaintiff  in  that  action,  was  called  and 
did  fail. 

R.  P.  appears  and  assigns  for  excuse  "high  water,"  and  offers  his  own  affidavit, 
which  is  filed.  He  also  offers  as  a  witness  in  his  behalf  S.  S.,  who.  being  duly 
sworn,  testifies  that  (state  what  S.  S.  says  about  the  condition  of  the  water  at 
the  time).  R.  P.,  having  no  other  evidence,  closed  the  ease  on  his  part.  Where- 
upon A.  B.  offered  M.  Y.  as  a  witness,  who,  being  sworn,  testifies  (state  what 
witness  says. ) 

Neither  party  having  any  other  evidence,  and  after  hearing  all  the  proofs  and 
allegations  submitted  for  and  against  the  motion,  it  is  adjudged,  on  motion  of 
A.  B.,  that  A.  B.  do  recover  of  R.  P.  the  sum  of dollars,  penalty  for- 
feited by  reason  of  the  premises,   and  the  further  sum   of dollars,  costs 

of  this  motion. 

Rev.  Vol.  1—24  433 


1496  COUETS— JUSTICES'— X.  Forms.  Ch.  27 

[jSTq.  31.] 
form  of  a  venire. 

The  justice  will  make  a  list  of  the  persons  drawn  by  liim  as  jurors, 
and  indorse  thereon  substantially  as  follows: 

To  O.  P.  M.,  constable  of county: 

You  are  hereby  directed  to  summou  tlie  persons  named  within  to  appear  as 

jurors  before  me  at  my  office  in  your  county,  on  the day  of 

19 ...  .  for  trial  of  a  civil  action  now  pending  between  A.  B..  plaintiff,  and  C.  D., 
defendant,  then  and  there  to  be  tried.  And  luue  you  then  and  there  the  names 
of  the  jurors  you  shall  summon,  with  this  precept. 

Dated  this day  of 19 

G.  W.  H 

Justice  of  the  Peace. 
[No.   32.] 

FORM  OF  JUROR'S  OATH. 

You  swear  well  and  truly  to  try  the  matter  in  difference  between  A.  B., 
plaintiff',  and  C.  D.,  defendant,  and  a  verdict  to  give  thereon  according  to  the 
evidence  in  the  cause.     So  help  you,  God. 

[No.  33.] 

FORM  OF  OATH  TO  CONSTABLE  IN  CHARGE  OF  THE  JURY. 

You  swear  that  you  will,  to  the  utmost  of  your  ability,  keep  the  persons 
sworn  as  jurors  on  this  trial  together  in  some  private  and  convenient  place, 
without  any  meat  or  drink,  except  such  as  maj'  be  ordered  by  the  court ;  that 
you  will  not  suffer  any  communication,  orally  or  otherwise,  to  be  made  to  them, 
and  that  you  will  not  communicate  with  them  yourself,  orally  or  otherwise, 
unless  by  order  of  the  court.     So  help  you,  God. 

[No.  34.] 

SUMMONS  AGAINST  DEFAULTING  JUROR  TO   SHOW   CAUSE. 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county — Greeting : 
We  command  you  to  summon  R.  S.  to  appear  before  G.  W.  H.,  Esq.,  a  justice 

of  the  peace   for  your  county,   at   his   office   in   said   county,   on   the day   of 

19.  .  .  .   to  show  cause  why  he,  the  said  R.  S.,  should,  not  ho  fined 

according  to   law   for  his   nonattendance   as   a  juror  before   our   said   justice  at 

his  office  in  said  county  on  the day  of 19.  .  .  .  in  a  certain  cause 

then  and  there  pending,  in  which  A.  B.  was  plaintiff  and  0.  D.  was  defendant: 
and  have  you  then  and  there  this  precept,  with  the  date  and  manner  of  your 
service   thereof. 

Witness,  our  said  justice,  this dav  of 19.  .  .  . 

G.  W.  IT 

.Justice  of  the  Peace. 


1496  COUETS— JUSTICES'— X.  Forms.  Ch.   27 

[No.   35.] 

DEMURRER  TO   COMPLAINT. 

(Title  as  in  No.  1.) 

The  defendant  demurs  to  the  complaint  in  this  action,  for  that  the  said  com- 
plaint does  not  state  facts  sutKcient  to  constitute  a  cause  of  action  (or,  for  that 
the  said  complaint  js  not  sufficiently  explicit  to  enable  this  defendant  to  under- 
stand it ) . 

(Signature  of  defendant  or  defendant's  attorney.) 

iEo.   36.] 

DEMURRER  TO  ANSWER. 

(Title  as  in  No.  1  or  No.  5.) 

The  plaintiff  demurs  to  the  answer  of  the  defendant,  for  that  the  facts  stated 
in  the  answer  are  not  legally  sufficient  to  constitute  a  defense  to  this  action  (or 
for  that  the  said  answer  is  not  sufficientlj'  explicit  to  make  this  plaintiff  under- 
stand it) . 

(Signature  of   plaintiff  or  plaintiff's  attorney.) 

[No.  37.] 
JUDGMENT  UPON  DEMURRER. 

Note. — If  the  justice  thinks  the  objection  raised  by  the  demurrer 
to  the  pleadings  is  well  founded,  he  will  make  this  entry  on  his 
docket : 

Demurrer  to  the  complaint  (or  to  the  answer)  filed,  heard  and  sustained; 
and  whereupon  it  is  ordered  that  the  said  pleading  be  amended  without  cost 
(or  upon  paj'ment  of  costs,  as  the  case  may  be). 

This  order  to  amend  the  defective  pleading  is  a  matter  of  course, 
and  is  the  only  judgment  which  the  justice  can  render  upon  demiur- 
rer.  He  can  not  give  a  final  judgTaent  in  the  cause  at  this  stage,  for 
the  party  may  choose  to  amend  his  pleadings  and  try  the  case  on 
the  facts.  If,  however,  the  party  refuse  to  amend  the  defective 
pleading,  the  justice  will  disregard  the  same,  and  proceed  to  render 
final  judgment,  as  follows: 

Tlie  plaintiff  (or  defendant)  having  refused  to  amend  his  complaint  (or  his 
answer)    demurred   to,   it  is   adjudged   that   the   defendant   go   without   day   and 

recover  of  the  plaintiff  the  sum  of dollars,  costs  of  this  action    (or  that 

the  plaintiff  recover  of  the  defendant  the  sum  of dollars,  damages,  and 

the  further  sum  of dollars,  costs  of  this  action. ) 

If  the  justice  deem  the  objection,  raised  by  the  demurrer,  not  well 
founded,  he  will  enter  in  his  docket  as  follows : 

Demurrer  to  the  complaint  (or  to  the  answer)  filed,  heard  and  overruled,  and 
he  will  then  proceed  to  the  evidence  in  the  cause. 

Note. — The  following  is  offered  as  a  general  j^recedent  of  the 
manner  in  which  the  justice  will  make  the  entries  in  his  docket : 


1496  COUETS— JUSTICES'— A'.  Forms.  Ch.  27 

[Xo.   38.] 
(Title  as  in  No.  1.) 
...1"J....     Summous  issued;   letuiuable  on  the instant  at  my 


office. 

19 ... .  Summons  returned,  served  on  defendant  by  0.  P.  M.,  con- 
stable,  on   the instant,    both   parties    appear,   the   plaintiff   in   person,   the 

defendant  by  K.  H.  K.,  Esq.,  attorney. 

The  plaintiff  complains   on  a  promissory   note  executed  by  the   defendant   to 

him,  dated 19 ...  .   payable  one  day  after  date,  for  $ ,  and  also 

for  goods  sold  and  delivered  to  the  defendant,  and  claims  damages  for  $ 

The  defendant  answers  and  denies  each  and  every  allegation  in  the  complaint, 

and  claims  a  setoff  of  $ for  wood  sold  and  delivered  to  the  plaintiff,  and 

also  of  $ for  work  and  labor  performed  for  the  plaintiff. 

On  joining  issue  of  fact  as  above,  the  action  is,  by  consent  of  parties,  adjourned 
to  the instant,  at  my  office. 

A  venire  is  also  issued  at  the  plaintiff's  (or  defendant's)  demand,  returnable 
at  the  time  and  place  last  mentioned. 

19.  .  .  .     The  parties  appear  and  proceed  to  the  trial  of  the  cause. 

Tlie  following  jurors  are  returned  as  summoned  upon  the  venire  by  O.  P.  M.. 
constable.  (Insert  the  names  of  all  jurors  summoned.)  The  following  jurors, 
who  are  returned  as  summoned,  do  not  appear.  (Insert  their  names.)  The 
following  jurors  appear  according  to  the  summons.  (Insert  their  names.)  The 
following  jurors  are  sworn  to  try  the  action.      (Insert  their  names.) 

H.  P.  and  J.  M.,  witnesses  for  the  plaintiff',  and  W.  F.,  a  witness  for  the  defend- 
ant, are  sworn  and  testify;  J.  S.,  a  witness  on  the  part  of  the  defendant,  is 
offered,  but  objected  to  by  the  plaintiff  on  the  ground  (state  the  ground)  and 
rejected. 

Having  heard  the  evidence  (and  the  arguments  of  counsel,  if  any),  the  cause 
is  submitted  to  the  jury,  who  retire,  under  charge  of  0.  P.  M.,  a  constable  duly 
sworn  for  that  purpose,  and  afterwards  return  in  open  court  and  publicly  deliver 

their  verdict,  by  which  they  find  in  favor  of  the  plaintiff  for  .$ damages; 

whereupon,  I  adjudge  that  the  plaintiff  do  recover  of  the  defendant — 

Damages  .$ 

Costs 

19 ...  .     Execution  issued  for  above  judgment  to  0.  P.  M.,  constable. 

19 ... .     Notice  of  appeal  served  on  me  by  defendant ;  my  fee  paid 

and  return  to  the  appeal  made  by  me.  ■ 

N".  B. — If  the  action  is  tried  by  the  justice  without  a  jury,  all 
that  relates  to  the  venire  and  the  verdict  in  the  above  form  must  be 
left  out,  and  the  judgment  will  be  entered  as  follows: 

After  hearing  the  proofs  and  allegations  of  the  respective  parties,  I  do  adjudge 
that  the  plaintiff  recover,  etc.   (as  above). 

[No.  39.] 

FORM  OF  NOTICE  OF  APPEAL  TO  THE  SUPERIOR  COURT.   WHERE  A 
NEW  TRIAL  OF  THE  WHOLE  ISIATTER  IS  TO  BE  HAD. 

(Title  as  in  No.  1.) 

To  G.  W.  H.,  Esq.,  a  justice  of  the  peace  for  said  county. 

Take  notice,  that  the  defendant  in  the  above  action   appeals  to  the  Superior 

Court  from  the  judgment  rendered  therein  hy  you  on  the day  of 

19 ...  .    in  favor  of  the  plaintiff  for  the  siim  of  sixty-five  dollars  damages  and 

43G 


1496  COURTS— JUSTICES'— A'.  Forms.  Ch.   27 

tlie  further  sum  of  three  dollars  and  seventy-five  cents  costs,  and  that  this  appeal 
is  founded  upon  the  ground  that  the  said  judgment  is  contrary  to  law  &nd 
evidence. 

Dated  this day  of 19 

W.  W 

Attorney  for  Appellant. 

[jSTq.    40.] 

RETURN  TO  NOTICE  OF  APPEAL. 

A n \ 

against  I  County  of 

C D J 

To  the  Superior  Court  of County: 

An  appeal  having  been  taken  in  this  action  by  the  defendant,  I,  G.  W.  H., 
the  justice  before  whom  the  same  was  tried,  in  pursuance  of  the  notice  of  appeal 
hereto  annexed,  do  hereby  certify  and  return  that  the  following  proceedings  were 
had  by  and  before  me  in  said  action: 

On  the  first  of  February,  one  thousand  eight  hundred  and  sixty-nine,  at  the 
request  of  the  plaintiff,  I  issued  a  summons  in  his  favor  and  against  the  defend- 
ant, which  is  herewith  sent.  Said  summons  was,  on  the  return  day  thereof, 
returned  before  me  at  my  office;  and  at  the  same  time  and  place  the  parties 
personally  appeared. 

The  plaintift'  complained  for  goods  sold  and  delivered  to  defendant  to  the 
amount  of  $75.  The  defendant  denied  the  right  of  the  plaintiff  to  recover  that 
amount  for  the  goods,  on  the  ground  that  he  had  paid,  at  or  shortly  after  the 

purchase  of  said  goods dollars  thereon;   and  he  also  claimed  to  have  a 

setofl'  against  the  plaintiff  to  the  amount  of  $85  for  board  and  lodging  furnished 
to  plaintiff,  and  work  and  labor  done  for  him;  and  he  claimed  to  be  entitled  to 
judgment  against  the  plaintiff  for  $ 

Both  parties  introduced  evidence  upon  the  claims  so  made  by  them,  and  after 
hearing  their  proofs  and  allegations,  1  rendered  judgment  in  favor  of  the  plaintiff 
and  against  the  defendant,  on  the  tenth  of  February,  eighteen  hundred  and  sixty- 
nine,  for  $65  damages,  and  for  the  further  sum  of  $3.75,  costs   of  the  action. 

I  also  certify  that  on  the  eleventh  of  February,  eighteen  hundred  and  sixty- 
nine,  the  defendant  served  the  annexed  notice  of  appeal  on  me,  and  at  the  same 
time  paid  me  my  fee  of  $1  for  making  my  return. 

All  of  which  I  send,  together  with  the  process,  pleadings,  and  other  papers 
in  the  cause. 

Dated  this  15th  day  of  February,  1904. 

G.  W.  H 

Justice  of  the  Peace. 

]^.  B. — If  the  cause  was  tried  by  a  jitry,  state  the  fact  and  set 
forth  the  verdict,  with  the  judgment  thereon.  ,  It  is  not  necessary  to 
set  out  in  the  return  a  copy  of  any  process,  pleading,  affidavit  or 
other  paper.  It  is  sufficient  to  refer  to  such  a  paper  as  filed  and  as 
herewith  sent. 

['^0.  41.] 

WHERE  THE  SUM  DEMANDED  EXCEEDS  TWO  HUNDRED  DOLLARS. 

It  appearing  that  the  sum  demanded  by  the  plaintiff  in  this  action  exceeds 
two  hundred  dollars,  it  is  ordered  that  the  action  be  dismissed,  and  judgment  is 

rendered  against  A.  B.,  plaintiff,  for  the  sura  of dollars,  costs. 

(Date  and  sign.) 

437 


1496  COUETS— JUSTICES'— Z.  Fonns.  Ch.   27 

[No.  42.] 
WHERE  THE  TITLE  TO  REAL  ESTATE   IS  IN   QUESTION. 

'N.  B. — The  defendant,  if  he  wishes  to  make  answer  to  title,  must 
file  a  written  answer  to  the  complaint,  setting  forth  the  facts. 

ANSWER  OF  TITLE. 
(Title  as  in  No.  1.) 

The  defendant  answers  to  the  complaint: 

1.  That  no  allegation  thereof  is  true. 

2.  That  the  plaintiff  ought  not  to  have  or  maintain  his  action  against  the 
defendant,  because  the  premises  mentioned  and  described  in  the  complaint,  at 
the  time  when  the  rent  and  render,  for  which  said  action  is  brought,  is  alleged 
to  be  due,  was  and  is  now  the  land  and  freehold  of  one  J.  D.,  and  not  that  of 
the  plaintiff;  nor  was  the  plaintiff  then,  nor  is  he  now,  entitled  to  the  possession 
thereof;  and  the  defendant  further  answers  that  the  title  to  said  premises  was, 
at  the  time  aforesaid,  and  is  now,  in  said  J.  D.,  and  will  come  in  question  on 
the  trial  of  this  action. 

Dated  this day  of 19  ...  . 

CD ,  Defendant. 

It  appearing  from  the  answer  and  proof  of  the  defendant  that  the  title  to  real 
estate  is  in  controversy  in  this  action,  it  is  ordered  that  the  action  be  dismissed, 
and  judgment  is   rendered   against  the  plaintiff  for dollars,   costs. 

[No.  43.] 

TENDER  OF  JUDCxMENT. 

(Title  as  in  No.  1.) 

To  C.  D : 

Take  notice,  that  the  defendant  hereby  offers  to  allow  judgment  to  be  taken 
against  him  by  the  plaintiff  in  the  above  action  for  the  sum  of  fifty  dollars, 
with  costs. 

Dated  this day  of 19 

CD ,  Defendant. 

[No.    44.] 

ACCEPTANCE  OF  TENDER  OF  JUDGMENT. 

(Title  as  in  No.  1.) 

To  A.  B : 

Take  notice,  that  the  plaintiff  hereby  accepts  the  offer  to  allow  the  plaintiff 
to  take  judgment  in  the  above  action  for  the  sum  of  fifty  dollars,  with  costs, 
and  the  justice  will  enter  up  judgment  accordingly. 

Dated  this day  of 19  ...  . 

A.  B ,  Plaintiff. 


1496  COUETS— JUSTICES'— Z.  Forms.  Ch.  27 

[No.  45.] 

FORM  OF  JUDGMENT  OR  TENDER. 

{Title  as  in  No.  1.) 

jS'.  B. — The  justice  will  state  all  the  proceedings  in  the  action 
from  the  issuing  of  the  sununons  down  to  the  appearance  of  the  par- 
ties and  the  complaint  of  the  plaintiff,  and  then  proceed  as  follows: 

Whereupon,  the  said  defendant,  before  answering  said  complaint,  made  and 
served  an  ofler,  in  writing,  to  allow  the  plaintiff  to  take  judgment  against  him 
for  the  sum  of  fifty  dollars  with  costs;*  and  the  said  plaintiff  thereupon  accepted 
such  offer,  and  gave  notice  thereof  to  the  defendant  in  writing;  said  offer  and 
acceptance  thereof  being  filed; 

Now,  therefore,  judgment  is  accordingly  rendered  in  favor  of  the  plaintiff  and 
against  the  defendant  for  the  sum'  of  fifty  dollars  damages,  and  the  further  sum 
of  one  dollar,  costs. 

If  notice  of  acceptance  is  not  given,  the  entry  will  be  as  follows : 

(Follow  the  foregoing  form  down  to  the  asterisk   {*)    and  then  add)  : 

And  the  said  plaintiff  having  refused  to  accept  such  offer,  the  defendant 
answered  the  complaint  by  denying,  etc.  (state  the  defense  of  the  defendant  down 
to  the  judgment,  which,  in  case  the  plaintiff  fails  to  recover  more  than  the  sum 
mentioned  in  tlie  offer,  will  be  entered  thus)  : 

After  hearing  the  proofs  and  allegations  of  the  respective  parties,  I  adjudge 
that  the  plaintiff  do  recover  the  sum  of  fifty  dollars  damages,  and  the  further 
simi  of  one  dollar,  costs. 

I  further  adjudge  that  the  defendant  do  recover  of  the  plaintiff  the  sum  of 
two  dollars  and  seventy-five  cents,  costs  accruing  in  the  action  subsequent  to 
the  offer  of  the  defendant  referred  to. 

[No.  46.] 

GENERAL  FORM— EXECUTION. 

(Title  as  in  No.  1.) 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county — Greeting : 
Wihereas,   judgment   has  been   rendered  by   G.   W.   H.,   Esq.,   a   justice  of   the 

peace  for  said  county,  against  C.  D.,  in  favor  of  A.  B.,  for  the  sum  of 

dollars  damages,  and  the  further  sum  of dollars  costs,  on  the day 

of 19....; 

You  are  therefore  commanded  forthwith  to  levy  of  the  goods  and  chattels  of 
the  said  C.  D.  (excepting  such  goods  and  chattels  as  are  by  law  exempt  from 
execution)  the  amount  of  such  judgment,  with  interest  from  the  date  thereof 
until  the  money  is  recovered. 

And  make  due  return,  according  to  law,  in  sixty  days  from  the  date  hereof. 

Dated  this day  of 19 

G.  W.  H 

Justice  of  the  Peace. 


14:96  COURTS— JUSTICES'— A'.  Forms.  C!i.   27 

[No.  47.] 

EXECUTION  IN  ATTACHJIENT. 

(Title  as  in  No.  1.) 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county — Greeting: 

Whereas,  in  pursuance  of  a  warrant  of  attachment,  dated  the   day  of 

19.  .  .  .  issued  by  G.  W.  H.,  Esq.,  a  justice  of  the  peace  of  said  county, 

in  an  action  wherein  A.  B.  was  plaintiff  and  C.  D.  defendant,  the  folloxxinp;  prop- 
erty of  defendant  was,  on  the   day  of   ,  19.  .  .  .,  duly  levied  on 

and  attached. 

(Here  insert  a  list  of  property.) 

And  whereas,  judgment  was  rendered  in  said  action,  on  the.  .  .  .day  of 

in  favor  of  said  plaintiff,  and  against  the  said  defendant,  in  the  sum  of 

dollars; 

Therefore  we  command  you  that  you  satisfy  tlie  said  judgment  out  of  the 
property  so  attached  as  aforesaid,  by  the  sale  of  the  same  or  so  much  thereof  as 
shall  be  sufficient  to  satisfy  the  said  judgment;  and  if  a  sufficient  sum  be  not 
realized  therefrom,  then  you  satisfy  the  said  judgment  out  of  any  other  goods 
and  chattels  of  the  said  judgment  debtor  within  your  county. 

And  make  due  return  thereof  according  to  law  within  sixty  days  from  the 
date  hereof. 

Witness,   our   said   justice,   this dav   of 19.  .  .  . 

G.  W.  H 

Justice  of  the  Peace. 

[No.  48.] 

RECORD  OF  CONVICTION  OF  A  CONTEilPT. 

The  justice  will  make  an  entry  in  h'n  docket  stating  the  particular 
circumstances  of  the  contempt,  of  whicli  the  following  is  offered  as  an 
example : 

Whereas,  on  the    .  .  .  .day  of 19.  .  .  .while  engaged  in  the  trial  of  an 

action   (or  other  judicial  act,  as  the  case  may  be)   in  which  A.  B.  was  plaintiff 

and  C.  D.  was  defendant,  at  my  office  in county,  M.  B.  did  wilfully  and 

contemptuously  interrupt  me,  and  did  then  and  there  conduct  himself  so  dis- 
orderly and  insolently  towards  me,  and  by  making  a  loud  noise  did  disturb  the 
proceedings  on  said  trial  (or  other  judicial  act)  and  impair  the  respect  due  to  the 
authority  of  the  law ;  and  on  being  ordered  by  me  to  cease  making  such  noise 
and  disturbance,  the  said  M.  B.  refused  so  to  do,  but  on  the  contrary  did  publicly 
declare  and  with  loud  voice  (.state  whatever  offensive  words  were  used),  and 
whereas,  when  immediately  called  upon  by  me  to  answer  for  (he  said  contempt 
said  M.  B.  did  not  make  any  defense  thereto,  nor  excuse  himself  therefrom;  the 
.said  JI.  B.  is  therefore  convicted  of  the  conteni])t  aforesjiid.  and  is  adjudged  to 
pay  a  fine  of  five  dollars  and  be  imprisoned  in  the  county  jail  for  the  tenn  of  two 
days,   and   until   he   pays   such    fine   or   is   duly   discharged    from   imprisonment 

according  to  law.  G.  W.  H 

Justice  of  the  Peace. 

[No.  49.] 

WARRANT  OF  COMMITMENT  FOR  A  CONTEilPT. 

(Title  as  in  No.  1.) 

State  of  North  Carolina,  to  the  keeper  of  the  common  jail  of county — • 

Greeting: 
Whereas,  etc.    (recite  the  record  of  conviction  so  as  to  show  the  entire  matter 


1496  COUKTS— JUSTICES— -Y.  Forms.  Ch.   27 

of  contempt,  together  with  the  judgment  therefor,  and  then  proceed  as  follows)  : 
Therefore  you  are  hereby  commanded  to  receive  the  said  M.  B.  into  your 
custody  in  the  said  jail,  and  him  there  safely  keep  during  the  said  term  of  two 
daj's,  and  until  he  pays  the  said  fine  or  is  duly  discharged  according  to  law. 
Herein  fail  not. 

Dated  this day  of 19 

G.  W.  H 

Justice  of  the  Peace. 
Code,  s.  909. 


XoTE.  For  penalty  for  failing  to  turn  over  books,  etc.,  on  expiration  of  office, 
see  ss.  3598.  3601. 

For  criminal  procedure  and  jurisdiction,  see  Criminal  Procedure. 

For  judgment  upon  failure  to  answer,  see  Civil  Procedure,  subchapter  Judg- 
ments. 


CHAPTER  28. 
COURTS— SUPERIOR. 

Sections. 
I.     Officers  of,  1497—1499 

II.     Jurisdiction,  1500 — 1505 

III.  Terms  of  court,  1506—1510 

IV.  Special  terms,  1511—1518 
V.     Practice,                                                                   1519— 1528 

VI.     Process,  1529— I53I 

I.     Officers  of. 

1497.  Judges  to  take  oath  of  office.  Every  jndge  before  he 
shall  act  as  such,  shall,  in  open  court,  or  before  the  governor,  or 
before  one  of  the  judges  of  the  supreme  or  su]ierior  courts,  or  before 
some  justice  of  the  peace,  take  the  oath  appointed  for  public  officers, 
and  also  an  oath  of  office.  The  officer  or  court  before  whom  said 
judge  shall  qualify,  shall  cawse  the  judge  to  subscribe  the  oaths  by 
him  taken,  and  having  certified  the  same,  shall  return  said  oaths  to 
the  secretary  of  state,  who  shall  carefully  preserve  them  ;  and  if  anv 
judge  shall  act  in  his  office  Ijefore  he  shall  have  taken  the  oaths 
directed,  he  shall  forfeit  and  pay  two  thousand  dollars,  one  half  to 
the  use  of  the  state  and  the  other  half  to  the  ]ierson  who  shall  sue  for 
the  same. 

Code,  s.  924;  R.  C,  c.  31.  ss.  18,  19;  1777,  c.  115;  1806.  c.  694,  s.  13;  1848,  c.  45. 

1498.  Vacancies,  how  filled.  All  vacancies  occurring  by  deatli, 
resignation  or  otherwise  in  the  offices  of  justice  of  the  supreme  or 
judge  of  the  superior  court  of  tlie  state  shall  be  filled  for  the  unex- 


1498  COUKTS— SUPEKIOR— 7.   Officers.  Ch.   28 

pired  term  at  the  next  general  election  for  members  of  the  general 
assembly  held  after  such  vacancy  is  created.  The  persons  elected  at 
such  election  shall  be  commissioned  by  the  governor  immediately 
after  the  ascertainment  of  the  result  in  the  manner  provided  by  law 
and  shall  qualify  and  enter  upon  the  discharge  of  the  duties  of  the 
office  within  ten  days  after  receiving  such  commission. 

1899,  c.  G13. 

1499.  Power  to  discharge  drunken  solicitor.   When  any  state 

solicitor,  authorized  by  election  or  appointment  to  act  as  prosecuting 
attorney  for,  or  in  behalf  of  the  state  of  North  Carolina,  in  any  of 
the  courts  of  said  state,  shall  appear  at  such  court,  in  tenn  time, 
drunk  or  intoxicated,  or  when  it  shall  be  brought  to  the  knowledge 
of  the  judge  presiding  at  such  co'urt  that  the  solicitor,  wliose  duty 
it,  is  to  represent  the  state  at  svich  court,  is  in  the  town  in  which  such 
court  is  being  held,  drunk  or  intoxicated,  at  any  time,  it  shall  become 
the  duty  of  such  judge,  and  he  is  hereby  directed  to  immediately  dis- 
charge such  solicitor  from  the  duties  of  sucli  court,  for  the  term  then 
being  held,  and  appoint  some  competent  attorney  to  act  as  state  solici- 
tor for  the  term  of  said  court.  Said  appointee  shall  be  allowed  all  the 
fees  and  compensation  belonging  to  the  solicitor  for  such  term. 
1901,  c.  717. 

II.        JUEISDICTION. 

1500.  Original.  The  superior  court  shall  have  original  jurisdic- 
tion of  all  civil  actions  wliereof  exclusive  original  jurisdiction  is  not 
given  to  some  other  court.;  and  of  all  criminal  actions  in  which  the 
punishment  may  exceed  a  fine  of  fifty  dollars,  or  imprisonment  for 
thirty  days ;  and  of  all  such  affrays  as  shall  be  committed  witliin  one 
mile  of  the  place  where,  and  during  the  time,  such  court  is  being 
held ;  and  of  all  offenses  whereof  exclusive  original  jurisdiction  is 
given  to  justices  of  the  peace,  if  some  justice  of  the  peace  shall  not 
within  twelve  months  after  the  commission  of  the  offense  proceed  to 
take  official  cogiiizance  thereof. 

Code.  s.  922:  1889,  c.  504,  s.  2;  Const.,  Art.  IV.  ss.  12,  27;  1879,  c.  92,  s.  11; 
1881,  c.  210. 

1501.  In  vacation  or  at  term.  In  all  cases  where  the  superior 
court  in  vacation  lias  jurisdiction,  and  all  of  the  parties  unite  in  the 
proceedings,  they  may  appl.V  for  relief  to  the  superior  court  in  vaca- 
tion, or  in  tenn  time,  at  their  election. 

Code,  c.  10,  s.  2.?0;   1871-2,  c.  3. 

1502.  Appellate.  Tlic  supericn-  court  shall  have  apiiellato  juris- 
diction of  all  issues  of  law  or  of  fact,  determined  liv  a  clerk  of  the- 


1502  GOUKTS— SUPEKIOE— //.  Jurisdiction.  Cli.  28 

superior  court  or  a  justice  of  the  peace,  and  of  all  appeals  from  infe- 
rior courts  for  error  assigned,  in  matters  of  law,  as  provided  by  law. 
Const.,  Art.  IV,  ss.  12,  27;  Code,  s.  923. 

1503.  Equity  cases  transferred  to.    All  suits,  petitions  and 

other  proceedings  pending  in  the  late  courts  of  equity,  and  in  the  late 
courts  of  ijleas  and  quarter  sessions,  and  not  detennined  by  final 
judgment  or  decree,  and  all  such  cases  wherein  any  act  was  decreed 
to  be  done  or  deed  to  be  executed,  and  said  act  was  not  done  or  deed 
ei^ecuted,  may  be  transferred  to  the  superior  court  of  the  county  in 
which  they  were  pending,  at  the  instance  of  any  person  interested. 
And  the  superior  court  shall  have  power  to  make  all  orders,  judg- 
ments and  decrees  that  shall  be  necessary  for  finally  adjudicating 
and  settling  the  same. 

Code,  s.  944;   1871-2,  c.  161;  1873-4,  c.  183;  1874-5,  e.  81;  1876-7,  c.  9. 

1504.  Surveys  in  disputed  boundaries.  AVhenever  in  any  suit 
pending  in  the  superior  court,  the  bounds  of  lands  shall  be  drawn  in 
question,  the  court  may,  if  deemed  necessary,  order  a  survey  of  the 
lands  in  dispute,  agreeable  to  the  bounds  and  lines  expressed  in  each 
party's  titles,  and  such  other  surveys  as  shall  be  deemed  useful ;  which 
surveys  shall  be  made  by  two  surveyors  appointed  by  the  court,  one 
to  be  named  by  each  of  the  parties,  or  by  one  surveyor,  if  the  parties 
agree;  and  the  surveyors  shall  attend  according  to  the  order  of  the 
court,  and  make  the  surveys,  and  shall  make  as  many  accurate  plans 
thereof  as  shall  be  ordered  by  the  court;  and  for  such  surveys  the 
court  shall  make  a  proper  allowance,  to  be  taxed  as  among  the  costs 
of  the  suit. 

Code,  s.  939;  R.  C,  c.  31,  s.  119;  1779,  c.  157;  1786,  c.  252. 

1505.  Contiguous  lands  held  under  one  survey,  how.  Whenever. 

any  jDerson  owns  several  tracts  of  land  which  are  contiguous  or 
adjoining,  but  held  under  diffei'ent  deeds  and  different  suiweys,  it 
may  be  lawful  for  any  such  person  to  have  all  such  bodies  of  land 
included  in  one  conunon  survey  by  running  around  the  lines  of  the 
outer  tracts,  and  thereupon  the  possession  of  any  part  of  said  land 
covered  by  such  common  survey  shall  be  deemed  and  held  in  law  as 
a  possession  of  the  whole  and  every  part  thereof:  Provided,  that 
nothing  in  this  section  shall  be  construed  to  affect  the  rights  or  claims 
of  persons  which  have  already  accriied  to  any  part  of  said  land. 
In  all  cases  where  such  common  surveys  are  made  as  directed  by  this 
section,  the  same  may  be  recorded  and  registered  as  in  cases  of 
deeds,  and  shall  be  evidence  in  like  manner. 
Code,  s.  1277;   1869-70,  c.  34,  ss.  1,  2. 


Note.     For  jurisdiction  to  quiet  titles,  see  s.  1589. 
For  jurisdiction  to  sell  contingent  remainders,  see  s.  1590. 
443 


150fi  COURTS— SUPERIOR— ///.  Terms.  Ch.  28 

III.     Teems  of  Couet. 

1506.  When  held.  A  superior  Qom-t  shall  be  held  by  a  judge 
thereof  at  the  courthouse  in  each  county.  The  state  shall  lae  divided 
into  sixteen  judicial  districts,  and  the  superior  courts  in  the  several 
counties  shall  be  opened  and  held  at  the  times  hereinafter  set  forth, 
and  each  court  shaU  continue  in  session  one  week,  except  as  herein- 
after provided,  unless  the  business  thereof  shall  be  sooner  disposed 
of,  namely: 

FIEST    DISTEICT. 

The  first  district  shall  be  composed  of  the  following  counties,  and 
the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Beaufort  County — Third  ilonday  before  the  first  ^londay  in 
-March,  to  continue  two  weeks;  sixth  Monday  after  the  first  Monday 
in  March,  for  the  trial  of  civil  cases  exclusively ;  tenth  ilonday  after 
the  first  Monday  in  March,  for  the  trial  of  criminal  cases  exclusively ; 
sixth  Monday  after  the  first  Monday  in  September,  to  continue  two 
weeks,  the  second  week  for  the  trial  of  civil  cases  exclusively ;  thir- 
teenth Monday  after  the  first  Monday  in  Septeniter,  to  eontiniie 
three  weeks,  the  last  two  \veeks  for  the  trial  of  civil  cases  exclusively. 
The  board  of  commissioners  of  the  county  of  Ijcaufort  is  hereby 
authorized  not  to  draw  a  jury  for  the  second  and  third  weeks,  or 
for  either  of  the  December  terms  of  the  siipcrior  court  herein  pro- 
vided for,  when  in  their  opinion  the  business  of  the  co\irt  does  not 
require  it. 

Cun-ituck  County — First  Monday  before  the  first  ilonday  in 
March ;  first  Monday  in  September. 

Camden  County — First  Monday  in  ilarch;  first  ilonday  after  the 
first  Monday  in  September. 

Pasquotank  County — First  Monday  after  the  first  Monday  in  Jan- 
uary, to  continue  two  weeks,  for  civil  business  only ;  first  Monday 
after  the  first  Monday  in  March,  to  continue  two  weeks,  for  criminal 
and  civil  business ;  second  Monday  after  the  first  Monday  in  Septem- 
ber, to  continue  one  week,  for  criminal  and  civil  business ;  twelfth 
Monday  after  the  first  Monday  in  Septend^er,  to  continue  one  week, 
for  civil  business  only. 

Perquimans  County — Third  Monday  after  the  first  ilonday  in 
March  and  September. 

Chowan  County — Fourth  Monday  after  the  first  Jlonday  in  March 
and  September. 

Gates  Connty — Fifth  Monday  after  the  first  ^londay  in  -March 
and  September. 

444 


150G  COUETS— SUPERIOE— ///.  Terms.  Ch.   28 

Washington  County — Seventh  Monday  after  the  first  Monday  in 
March ;  eighth  ^Monday  after  the  first  ]\Ionday  in  September. 

Tyrrell  County — Eighth  Monday  after  the  first  Monday  in  ^larch  ; 
ninth  Monday  after  the  first  Monday  in  September. 

Hyde  County — Eleventh  Monday  after  the  first  Monday  in  March ; 
eleventh  Monday  after  the  first  Monday  in  September. 

Dare  County — Ninth  Monday  after  the  first  Monday  in  March ; 
tenth  Monday  after  the  first  Monday  in  September. 

1901,  CO.  28,  29,  s.  2;  1903,  c.  685;  1905,  e.  514. 

SECOND    DISTRICT. 

The  second  district  shall  be  composed  of  the  following  counties, 
and  the  suiDerior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Halifax  County — Fifth  Monday  before  the  first  Monday  in 
March,  to  be  for  the  trial  of  criminal  cases  exclusively,  and  to 
continue  for  one  week ;  first  Monday  in  March ;  the  thirteenth  Mon- 
day after  the  first  ]\Ionday  in  March ;  the  second  Monday  before  the 
first  Monday  in  September ;  twelfth  Monday  after  the  first  ]\Ionday 
in  September.  The  four  terms  last  mentioned  each  to  continue  for 
two  weeks. 

Northampton  County — Sixth  Monday  before  the  first  Monda.y  in 
March,  to  be  for  the  trial  of  civil  actions  exclusively,  except  jail 
cases  on  the  criminal  docket,  and  to  continue  one  week ;  third  [Mon- 
day after  the  first  Monday  in  March,  to  continue  two  w'eeks ;  first 
Monday  in  Augaist,  to  be  for  the  trial  of  civil  cases  exclusively, 
except  jail  eases  on  the  criminal  docket,  to  continue  one  week;  the 
eighth  Monday  after  the  first  ^londay  in  September,  to  continue  two 
weeks. 

Warren  County — Third  ^londay  before  the  first  Monday  in  March, 
to  continue  one  week;  fifteenth  Monday  after  the  first  Monday  in 
March,  to  continue  two  weeks,  and  the  second  Monday  after  the  first 
Monday  in  September,  to  continue  two  weeks. 

Bertie  County — Second  Monday  before  the  first  Monday  in  [March, 
and  the  first  Monday  after  the  first  Monday  in  September,  each  to 
be  for  the  trial  of  civil  cases  exclusively,  except  jail  cases  on  the 
criminal  docket;  eighth  Monday  after  the  first  Monday  in  March, 
to  continue  for  two  weeks ;  tenth  Monday  after  the  first  Monday  in 
September,  to  continue  for  two  weeks. 

Hertford  County — Seventh  Monday  after  the  first  ]\Ionday  in 
[March ;  sixth  Monday  after  the  first  Monday  in  September,  to  con- 
tinue for  two  weeks,  unless  sooner  adjourned  by  the  court;  third 
Monday  before  the  first  Monday  in  Septemlx-r,  which  shall  be  for  the 
trial   of  criminal   cases   exclusively ;    first   [Monday   before    the    first 


1506  COURTS— SUPEEI0R—//7.  Terms.  Ch.  28 

Monday  in  March.  .  All  civil  causes  and  actions  not  reqiiiriug  a  jury 
trial  may  be  heard  and  determined  at  the  August  terra,  just  as  at  any 
other  regailar  term  of  said  court,  and  jury  eases  on  the  civil  docket 
of  said  court  nuiy  be  tried  by  consent  of  all  parties  at  said  August 
terms. 

1901,  c.  28,  s.  1;  1901,  c.  29,  s.  3;  190.3,  c.  15,  s.  2;  1903.  c.  24,  s.  1;  1903, 
c.  701,  ss.  1,  2;  1905,  cc.  7G,  202. 

THIRD    DISTKICT. 

The  third  district  shall  be  composed  of  the  following  counties,  and 
the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Pitt  County — Seventh  Monday  before  the  first  Monday  in  March ; 
seventh  Monday  after  the  first  Monday  in  March,  each  to  continue 
for  two  weeks;  second  Monday  after  the  first  Monday  in  March,  to 
continue  for  two  weeks,  for  the  trial  of  civil  cases  exclusively ;  sec- 
ond Monday  after  the  first  Monday  in  September  and  the  ninth 
Monday  after  the  first  j\Ionday  in  Sejitember,  each  for  two  weeks, 
and  the  last  named  term  to  be  for  the  trial  of  civil  cases  only. 

Craven  County — Third  Monday  before  the  first  Monday  in  March, 
for  the  trial  of  civil  cases  exclusively;  ninth  Monday  after  the  first 
Monday  in  March,  to  continue  for  two  weeks,  for  the  trial  of  civil 
cases  exclusively;  fifth  Monday  after  the  first  Monday  in  March, 
for  the  trial  of  criminal  cases  exclusively;  fourth  Monday  after  the 
first  Monday'  in  September,  and  first  Monday  in  July,  each  for  the 
trial  of  criminal  cases  only ;  the  eleventh  Monday  after  the  first  Mon- 
day in  September,  to  continue  for  two  weeks,  and  fifth  Monday  after 
the  first  Monday  in  September,  each  for  the  trial  of  civil  cases  only. 

Greene  County — First  Monday  before  the  first  Monday  in  March ; 
first  Monday  in  September;  thirteenth  Monday  after  the  first  Mon- 
day in  September,  the  last  named  term  to  continue  for  two  weeks; 
fourth  Monday  in  May,  to  continue  for  two  weeks,  for  the  trial  of 
civil  cases  only. 

Carteret  County — First  Monday  after  the  first  Monday  in  March, 
and  sixth  Monday  after  the  first  Monday  in  September. 

Jones  County — Fourth  Monday  after  the  first  Monday  in  March, 
and  eighth  Monday  after  the  first  Monday  in  September. 

Pamlico  County — ^.Sixth  Monday  after  the  first  Monday  in  March, 
seventh  IMonday  after  the  first  Monday  in  Sejitember. 

1901,  c.  28,  s.  1 :  1903.  c.  294;  1905,  ce.  341.  428,  452. 

FOURTH    DISTRICT. 

The  fourth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

446 


1506  COURTS— SUPERIOR— ///.  Terms.  Ch.   28 

Franklin  County — Sixth  Monday  before  the  first  Monday  in 
March,  sixth  Monday  after  the  first  Monday  in  March,  each  to  con- 
tinue for  two  weeks ;  second  Monday  before  the  first  Monday  in  Sep- 
tember, for  the  trial  of  criminal  cases  exclusively;  sixth  Monday 
after  the  first  Monday  in  September,  to  continue  for  two  weeks,  for 
the  trial  of  civil  cases  exclusively. 

Wilson  County — Fourth  Monday  before  the  first  Monday  in 
ilarch,  to  continue  for  two  weeks ;  ninth  Monday  after  the  first  ^Ion- 
day  in  March,  to  continue  for  two  weeks ;  first  Monday  in  September ; 
tenth  Monday  after  the  first  Monday  in  September,  to  continue  two 
weeks. 

Vance  County — Eleventh  Monday  after  the  first  Monday  in 
March,  to  continue  two  weeks ;  fourth  Monday  after  the  first  Monday 
in  September,  to  continue  for  two  weeks ;  second  Monday  before  the 
first  Monday  in  March,  to  continue  for  two  weeks. 

EdgecomlDe  County — First  Monday  in  March,  and  first  Monday 
after  the  first  Monday  in  September ;  fourth  Monday  after  the  first 
Monday  in  March  and  eighth  Monday  after  the  first  Monday  in 
September,  each  to  continue  for  two  weeks,  for  the  trial  of  civil 
cases  exclusively. 

Martin  County — Second  Monday  after  the  first  Monday  in  March, 
second  Monday  after  the  first  Monday  in  June,  second  Monday  after 
the  first  Monday  in  September,  and  fourteenth  Monday  after  the  first 
Monday  in  September. 

Nash  County — Eighth  Monday  after  the  first  Monday  in  March 
and  twelfth  ]\Ionday  after  the  first  Monday  in  September,  each  to 
continue  for  two  weeks ;  first  Monday  after  the  first  Monday  in 
March  and  first  Monday  before  the  first  Monday  in  September.  At 
the  two  last  named  terms,  no  civil  suit  shall  stand  for  trial  except 
divorce  cases  and  appeals  from  justices'  judgments:  Provided,  that 
this  shall  not  prevent  the  submission  of  any  issue  to  the  jury  by 
consent,  or  where  there  is  no  objection  thereto. 

1901,  ee.  28,  29,  ss.  5,  6;  1903,  cc.  6,  6.36,  736;  1905,  ec.  17,  298,  349,  423,  535. 

FIFTH    DISTRICT. 

The  fifth  district  shall  be  composed  of  the  following  counties,  and 
the  superior  courts  thereof  .shall  be  held  at  the  following  times,  to-wit : 

Xew  Hanover  County — Sixth  Monday  before  the  first  Monday  in 
March,  to  continue  two  weeks ;  fourth  Monday  after  the  first  Monday 
in  March,  to  continue  one  week ;  sixth  Monday  before  the  first  ilon- 
day  in  September,  to  continue  two  weeks ;  third  Monday  after  the 
first  Monday  in  September,  to  continue  one  week — each  for  the  trial 
of  criminal  cases  exclusively ;  fifth  Monday  after  the  first  Monday  in 
March,  to  continue  two  weeks;  twelfth  Monday  after  the  first  j\Ion- 


150G  COLTiTS— SUPERIOR— ///.   Terms.  Ch.  28 

day  iu  ^lart'li,  to  cuutimic  two  weeks ;  fourth  ^louday  after  the  lirst 
Mondav  in  September,  to  continue  two  weeks;  thirteenth  Monday 
after  the  first  IMondaj  in  September,  to  continue  one  week — each  for 
the  trial  of  civil  cases  exclusively. 

Pender  County — Seventh  Monday  before  the  first  Monday  in 
March,  to  continue  one  week ;  third  Monday  after  the  first  Monday 
in  ^larch,  to  continue  one  week;  first  Monday  after  the  first  Monday 
in  September,  to  continue  two  weeks. 

Duplin  County — Second  Monday  before  the  first  Monday  in 
jMarch ;  first  Mondaj'  before  the  first  Monday  in  September ;  eleventh 
ilonday  after  the  first  Monday  in  September — each  to  continue  two 
weeks. 

Sampson  Comity — Fourth  Monday  before  the  first  Monday  in 
March ;  eighth  Monday  after  the  first  Monday  in  March ;  fourth  Mon- 
day before  the  first  Monday  in  September ;  seventh  ilonday  after  the 
first  Monday  in  September — each  to  continue  two  weeks. 

Lenoir  County — Eighth  Monday  before  the  first  Monday  in  March, 
to  continue  one  week ;  first  Monday  after  the  first  Monday  in  March, 
to  continue  two  weeks ;  eleventh  Monday  after  the  first  ]\Ionday  in 
March,  to  continue  one  week ;  fourteenth  Monday  after  the  first  j\Ion- 
day  in  March,  to  continue  two  Aveeks ;  second  Monday  before  the  first 
Monday  in  September,  to  continiie  one  week ;  ninth  ^Monday  after  the 
first  Monday  in  September,  to  continue  two  weeks ;  fourteenth  Mon- 
day after  the  first  ^londay  in  September,  to  continue  two  weeks. 

Onslow  County — The  first  Monday  in  March ;  seventh  Monday 
after  the  first  Monday  in  March ;  seventh  Monday  before  the  first 
Monday  in  September;  sixth  Monday  after  the  first  Monday  in 
September — each  to  continue  one  week:  Provided,  that  the  commis- 
sioners of  Onslow  county  may,  in  their  discretion  and  before  drawing 
a  jury,  abolish  the  January  and  July  terms,  or  either  of  them,  herein 
provided  for,  by  giving  the  judge  assigned  by  law  to  hold  the  courts 
of  said  county  at  said  terms  notice  in  writing  that  in  tlieir  0]>inion 
said  terms  are  not  necessary  for  said  county. 

1903,  c.  533,  s.  1;  1901,  c.  28.  s.  1;  1905.  c.  373. 
SI.XTII    niSTKU'T. 

The  sixth  district  .shall  be  composed  of  the  following  counties,  and 
the  superior  coiirts  thereof  shall  be  lield  at  the  following  times,  to-wit: 

ITarnett  County — Fourth  iToTiday  before  the  first  Monday  in 
March,  two  weeks ;  eleventh  Monday  after  the  first  ^londay  in  ]\Iarch, 
one  week ;  first  Monday  in  September,  one  week ;  tenth  Monday  after 
the  first  iMonday  in  September,  two  weeks,  w-hich  shall  be  for  tlie 
trial  of  civil  cases  only. 

448 


loOlJ  COUETS— SUPEEIOK-r///.  Terms.  Ch.  28 

Johnston  County — First  Monday  in  March,  two  weeks ;  first  Mon- 
day after  the  first  Monday  in  September,  two  weeks ;  fourteenth  ilon- 
day  after  tlie  first  ilonday  in  September,  two  weeks. 

Wake  County — Eighth  ]\Ion(Uiy  before  the  first  Monday  in  March, 
two  weeks ;  third  Monda_y  after  the  first  Monday  in  March,  two  weeks ; 
eighth  Monday  before  the  first  Monday  in  September,  two  weeks ; 
and  the  third  Monday  after  the  first  Monday  in  September,  two 
weeks — all  for  the  trial  of  criminal  cases  exclusively ;  second  Monday 
before  the  first  ^Monday  in  March,  two  weeks ;  seventh  Monday  after 
the  first  Monday  in  March,  three  weeks ;  and  seventh  Monday  after 
the  first  Monday  in  September,  three  weeks^all  for  the  trial  of  civil 
cases  exclusively. 

Wayne  County — Sixth  Monday  befcn-e  the  first  Monday  in  ilarch, 
two  weeks  ;  fifth  Monday  after  the  first  Monday  in  IMarch,  two  weeks ; 
second  Monday  before  the  first  Monday  in  September,  two  weeks ; 
twelfth  Monday  after  the  first  Mondaj'  in  September,  two  weeks. 
ISTo  civil  action  shall  be  tried  in  the  county  of  Wayne  during  the  first 
week  of  any  of  said  terms  except  by  consent. 

1901,  e.  28;  1903,  e.  534;  1905,  c.  328. 

SEVE.NTU    DISTRICT. 

The  seventh  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Columbus  County — First  Monday  before  the  first  Monday  in 
March;  sixth  Monday  after  the  first  Monday  in  March,  to  continue 
two  weeks;  first  Monday  in  September;  twelfth  Monday  after  the 
first  Monday  in  September. 

Cumberland  County — Seventh  Monday  before  the  first  Monday 
in  March,  the  twelfth  Monday  after  the  first  Monday  in  March,  the 
first  Monday  before  the  first  Monday  in  September,  the  eleventh  Mon- 
day after  the  first  Monday  in  September,  each  for  the  trial  of  criminal 
cases  exclusively ;  the  third  Monday  after  the  first  Monday  in  March, 
for  the  trial  of  civil  cases,  except  jail  cases  on  the  criminal  docket; 
the  eighth  Monday  after  the  first  Monday  in  March,  the  seventh  Mon- 
day after  the  first  Monday  in  September,  each  to  continue  for  two 
weeks,  for  the  trial  of  civil  cases  exclusively;  the  second  Monday 
before  the  first  Monday  in  ]\Iarch,  for  the  trial  of  civil  cases  exclu- 
sively. 

Robeson  County — Fourth  Monday  before  the  first  ]\Ionday  in 
March,  to  continue  for  two  weeks,  for  the  trial  of  criminal  cases 
exclusively ;  sixth  Monday  before  the  first  Monday  in  September,  for 
the  trial  of  criminal  cases  exclusively;  ninth  ]\Ionday  after  the  first 
Monday  in  September,  to  continue  for  two  weeks,  for  the  trial  of 

Rev.  Vol.  I — 25  449 


1506  COURTS— SUPERIOR— ///.  Terms.  Ch.  28 

criminal  cases  exclusively ;  fourth  Monday  after  the  first  ilonrlay 
in  ilarch,  and  iirst  Monday  after  tlie  tirst  ilonday  in  September, 
each  to  continue  for  two  weeks,  for  the  trial  of  civil  cases  exclusively; 
eleventh  ]\Ionday  after  the  first  Monday  in  ^March  and  thirteenth 
Monday  after  the  first  Monday  in  September,  for  the  trial  of  civil 
cases  exclusively. 

Bladen  County — Eighth  [Monday  before  the  first  ilonday  in  March, 
first  Monday  after  the  first  ilonday  in  March,  and  sixth  ilonday  after 
the  first  Monday  in  September. 

Brunswick  County — Third  Tuesday  after  the  first  ]\Ionday  in 
March,  and  fourth  Tuesday  after  the  first  Monday  in  Sei)tembcr. 

moi.  c.  28.  s.  1  ;   in03.  c.  .572,  c.  607;   190.5,  cc.  98,  365,  453. 
EIGHTH    DISTRICT. 

The  eighth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to- wit : 

Anson  County — Third  Monday  before  the  first  Monday  in  Feb- 
ruary, for  the  trial  of  criminal  cases  exclusively ;  first  Monday  after 
the  first  Monday  in  February,  for  trial  of  civil  cases  exclusively; 
fourth  Monday  after  the  first  Monday  in  February,  for  the  trial  of 
civil  eases  exclusively ;  tenth  Monday  after  the  first  Monday  in  Feb- 
ruary, for  trial  of  criminal  cases  exclusively ;  fourteentli  iTonday 
after  the  first  Monday  in  February,  for  the  trial  of  civil  cases  exchi- 
sively;  eighteenth  Monday  after  the  fii'st  Monday  in  February,  for 
the  trial  of  civil  cases  exclusively ;  second  Monday  after  the  last  Mon- 
day in  August,  for  the  trial  of  criminal  cases  exclusively ;  sixth  Mon- 
day after  the  last  Monday  in  Augiist,  for  the  trial  of  civil  cases  exclu- 
sively; fourteenth  Monday  after  the  last  ]\Ioiiday  in  August,  for  tlie 
trial  of  civil  eases  exclusively. 

Chatham  County — First  Monday  in  February ;  thirteenth  ]\Iouday 
after  the  first  Monday  in  February;  third  ilonday  before  the  last 
Monday  in  Aug-ust,  for  the  trial  of  civil  cases  exclusively ;  eleventh 
Monday  after  the  last  Monday  in  August. 

Moore  Comity — Second  Monday  before  the  first  ]\lon(lay  in  Feb- 
ruary, for  the  trial  of  civil  cases  exclusively;  seventh  j\ronday  after 
the  first  ^[onday  in  February,  for  the  trial  of  civil  cas(>s  exclusively ; 
eleventh  ^londay  after  the  first  Monday  in  February,  for  the  trial  of 
criminal  cases  exclusively;  fifteenth  ifoiulay  after  the  first  ^londay 
in  February,  to  continue  for  two  weeks,  for  the  trial  of  civil  cases 
exclusively;  second  Monday  before  the  last  Monday  in  August,  for  the 
trial  of  criminal  cases  exclusively;  thii"d  Monday  after  the  last  Mon- 
day in  August,  for  the  trial  of  civil  cases  exclusively ;  twelfth  ^fonday 
after  the  last  Mf)udav  in  Auiiust,  for  tlie  trial  of  criminal  ('as{>s  exclu- 


1506  COURTS— SUPERIOR— 7/7.   Terms.  Cli.  28 

sively ;  fifteenth  Monday  after  the  last  Monday  in  August,  for  the 
trial  of  civil  cases  exclusively. 

Richmond  County — Fourth  Monday  before  the  first  ^Nfonday  in 
February,  for  the  trial  of  criminal  cases  exclusively;  eighth  Monday 
after  the  first  Monday  in  February,  to  continue  for  two  weeks,  for  the 
trial  of  civil  cases  exclusively ;  first  Monday  after  the  last  Monday  in 
August,  for  the  trial  of  criminal  cases  exclusively;  fourth  Monday 
after  the  last  Monday  in  August,  to  continue  for  two  weeks,  for  the 
trial  of  civil  cases  exclusively. 

Scotland  County — Fifth  Monday  after  the  first  Monday  in  Feb- 
ruary, for  the  trial  of  civil  cases  exclusively;  twelfth  Monday  after 
the  first  Monday  in  February,  for  the  trial  of  criminal  cases  exclu- 
sively ;  seventeenth  Monday  after  the  first  Monday  in  February ; 
eighth  Monday  after  the  last  Monday  in  August,  for  the  trial  of  civil 
cases  exclusively ;  third  Monday  after  the  last  Monday  in  August,  for 
the  trial  of  criminal  cases  exclusively. 

Union  County — First  Monday  before  the  first  Monday  in  Feb- 
ruary, for  the  trial  of  criminal  cases  exclusively ;  second  Monday  after 
the  first  Monday  in  February,  to  continue  for  two  weeks,  for  the  trial 
of  civil  cases  exclusively ;  sixth  Monday  after  the  first  Monday  in 
February,  for  the  trial  of  criminal  cases  exclusively;  fourth  Monday 
before  the  last  Monday  in  Aiigust,  for  the  trial  of  criminal  cases  exclu- 
sively; first  Monday  before  the  last  Monday  in  Augaist,  to  continue 
two  weeks,  for  the  trial  of  civil  cases  exclusively ;  ninth  Monday  after 
the  last  Monday  in  Aiigust,  to  continue  two  weeks,  for  the  trial  of 
criminal  cases  exclusively. 

1905,  c.  35!). 

NINTH   DISTEICT. 

The  ninth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Durham  County — Eighth  Monday  before  the  first  Monday  in 
March;  tenth  Monday  after  the  first  Monday  in  March;  the  first 
Monday  before  the  first  Monday  in  September,  and  the  thii'teenth 
Monday  after  the  first  Monday  in  September,  each  for  the  trial  of 
criminal  cases  exclusively;  sixth  Monday  before  the  first  Monday 
in  March ;  second  Monday  after  the  first  Monday  in  March ;  fourth 
Monday  after  the  first  Monday  in  September,  each  to  continue  for 
two  weeks,  for  the  trial  of  civil  cases  exclusively. 

Giiilford  County — Ninth  Monday  before  the  first  Monday  in 
March,  to  contimie  one  week;  the  seventh  Monday  before  the  first 
Monday  in  March,  to  continue  one  week;  the  third  Monday  before 
the  first  ]\[ouday  in  March,  to  continue  two  weeks;  the  sixth  ]\[on- 
day  after  the  first  Monday  in  March,  to  continue  two  \\ecks ;  the 


1506  COURTS— SrPERIOE—///.  Terms.  Ch.  28 

thirteenth  Monday  after  the  lirst  Monday  in  March,  to  continue  two 
weeks;  the  second  ]\Ionday  before  the  first  Monday  in  September, 
to  continue  one  week;  the  seventh  Monday  after  the  first  Monday 
in  September,  to  continue  two  weeks;  all  of  said  terms  of  court  being 
for  the  trial  of  civil  cases  only.  The  first  Monday  before  the  first 
Monday  in  March,  to  continue  for  one  week ;  the  fourth  ^londay 
after  the  first  ]\Ionday  in  ]\Iarch,  to  continue  for  one  week;  the 
fifteenth  Monday  after  the  first  Monday  in  March,  to  continue  one 
week ;  the  second  Monday  after  the  first  Monday  in  September,  to 
continue  one  week;  the  fourteenth  Monday  after  the  first  Monday 
in  September,  to  continue  one  week,  all  of  said  last-named  five  terms 
of  courts  to  be  for  criminal  cases  only. 

Granville  County — Fourth  Monday  before  the  first  ^Monday  in 
March,  to  continue  one  week;  eighth  Monday  after  the  first  Mon- 
day in  March,  to  continue  for  two  weeks ;  fifth  Monday  before  the 
first  jMonday  in  September,  to  continue  one  week ;  eleventh  Monday 
after  the  first  Monday  in  September,  to  continue  fiu-  two  weeks. 

Alamance  County — First  Monday  in  March ;  twelfth  Monday  after 
the  first  Monday  in  March,  for  the  trial  of  civil  cases  exclusively;  first 
Monday  in  September,  to  continue  for  two  weeks,  the  first  week  for 
the  trial  of  criminal  cases ;  ninth  Monday  after  the  first  Monday  in 
September,  for  the  trial  of  criminal  cases  exclusively. 

Orange  County — First  Monday  after  the  first  Monday  in  March ; 
fo^irth  Monday  before  the  first  Monday  in  September,  and  sixth 
Monday  after  the  first  Monday  in  September ;  eleventh  Monday  after 
the  first  Monday  in  March,  for  the  trial  of  civil  cases  exclusively. 

Person  County — Fifth  Monday  after  the  first  Monday  in  March ; 
third  Monday  before  the  first  Monday  in  September,  and  tenth  Mon- 
day after  the  first  j\Ionday  in  September. 

1901,  e.  28,  s.  1;  1903,  c.  198;  1905,  cc.  399,  519. 

TENTH   DISTKICT. 

The  tenth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Montgomery  County — Sixth  Monday  before  the  first  Monday  in 
March,  for  the  trial  of  criminal  cases  exclusively ;  sixth  Monday  after 
the  first  Monday  in  March,  for  the  trial  of  civil  cases  exclusively ; 
second  Monday  after  the  first  Monday  in  September,  to  continue  for 
two  M'eeks. 

Iredell  County — Fifth  ^[onday  before  the  first  Monday  in  ]\[ar(']i ; 
eleventh  Monday  after  the  first  Monday  in  March ;  fifth  Monday 
before  the  first  Monday  in  Sojitember;  eighth  Monday  after  the  first 
Monday  in  Sei)teniber,  each  to  continue  for  two  weeks. 


1506  COURTS— SUPEEI0R—/7/.  Terms.  Ch.  28 

Rowan  County — Third  Monday  before  the  first  Monday  in  March ; 
ninth  Monday  after  the  first  Monday  in  J\lareh ;  first  Monday  before 
the  first  Monday  in  September,  and  eleventh  Monday  after  the  first 
Monday  in  September,  each  to  continue  for  two  weei:s ;  the  civil  docket 
not  to  be  called  at  the  JMay  and  November  terms  until  the  second  week. 

Davidson  County — First  Monday  before  the  first  Monday  in  March, 
and  the  third  Monday  before  the  first  Monday  in  September,  each  to 
continue  for  two  weeks ;  seventh  Monday  after  the  first  Monday  in 
March,  and  tenth  Monday  after  the  first  Monday  in  September,  each 
for  the  trial  of  civil  cases  exclusively. 

Stanly  County — First  Monday  after  the  first  Monday  in  March, 
and  first  Monday  after  the  first  Monday  in  September,  each  for  the 
trial  of  civil  cases  exclusively ;  eighth  Monday  before  the  first  Monday 
in  September,  and  seventh  Monday  before  the  first  Monday  in  March, 
each  for  the  trial  of  criminal  cases  exclusively. 

Randolph  County — Second  Monday  after  the  first  Monday  in 
March ;  seventh  Monday  before  the  first  Monday  in  September,  and 
thirteenth  Monday  after  the  first  Monday  in  September,  each  to 
continue  for  two  weeks. 

Davie  County — Fourth  Monday  after  the  first  Monday  in  March, 
and  fourth  Monday  after  the  first  Monday  in  September,  each  to  con- 
tinue for  two  weeks. 

Yadkin  County — Eighth  Monday  after  the  first  Monday  in  March ; 
sixth  Monday  after  the  first  Monday  in  September,  to  continue  for 
two  weeks. 

1901,  c.  28,  s.  1;  1903,  c.  96,  s.  1;  1901,  e.  29,  s.  10;  1905,  ce.  188,  396,  454,  600. 

ELEVENTH    DISTRICT. 

The  eleventh  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Ashe  County — The  sixth  Monday  before  the  first  Monday  in 
March ;  twelfth  Monday  after  first  Monday  in  March ;  seventh  Mon- 
day after  the  first  Monday  in  September,  each  continuing  for  two 
weeks. 

Forsyth  County — Third  Monday  before  the  first  Monday  in 
March,  to  continue  for  two  weeks,  for  the  trial  of  criminal  cases 
exclusively ;  sixth  Monday  before  the  first  Monday  in  September, 
and  fifth  j\Ionday  after  the  first  Monday  in  September,  each  for 
the  trial  of  criminal  cases  exclusively;  eleventh  Monday  after  the 
first  Monday  in  March,  to  continue  for  two  weeks;  first  Monday 
after  the  first  Monday  in  March ;  first  Monday  after  the  first  Monday 
in  September,  and  thirteenth  Monday  after  the  first  ilonday  in 
September,  each  to  continue  for  two  weeks,  for  the  trial  of  civil  cases 
exclusively. 


l.-.On  COUKTS— SUPERIOR— ///.   Terms.  Ch.  28 

Rockingliain  County — The  lirst  ^Miuulav  liL-furc  l\\v  tirst  ^loiuhiy 
in  March,  to  continue  two  weeks,  for  the  trial  of  both  criminal  and 
civil  cases;  the  fourteenth  Monday  after  the  first  ilonday  in  !March, 
to  continue  two  weeks,  for  the  trial  of  civil  cases  exclusively ;  the  fifth 
Monday  before  the  first  Monday  in  September,  to  continue  one  week, 
for  the  trial  of  criminal  cases  exclusively ;  the  ninth  Monday  after 
the  first  Monday  in  September,  to  continue  two  weeks,  for  the  trial  of 
both  civil  and  criminal  cases. 

Alleghany  County — Third  Monday  after  the  first  Monday-  in 
March,  and  second  Monday  before  the  first  Monday  in  September. 

Caswell  County — Sixth  Monday  after  the  first  Monday  in  March 
and  September. 

Surry  County — Fourth  Monday  before  the  first  Monday  in  March  ; 
seventh  Monday  after  the  first  Monday  in  March ;  first  Monday  before 
the  first  Monday  in  September,  for  the  trial  of  civil  cases  only,  and  to 
continue  for  two  weeks ;  eleventh  Monday  after  the  first  ^londay  in 
September,  to  continue  for  two  weeks. 

Stokes  County — Ninth  Monday  after  the  first  ^Monday  in  March, 
and  third  Monday  after  the  first  Monday  in  September,  each  to  con- 
tinue for  two  weeks. 

1901,  c.  28,  s.  1;  1903.  c.  31.3,  s.  1;  1903,  c.  464;  1903,  c.  05(i ;  1905,  ec.  250,  326, 
337,  418,  521. 

TWELFTH    DISTKICT. 

The  twelfth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Mecklenburg  County — On  the  third  ilonday  before  the  first  Mon- 
day in  March,  and  on  the  third  Monday  before  the  first  Monday  in 
September,  each  of  said  terms  to  continue  for  two  weeks;  also  on 
the  seventh  Monday  after  the  first  ]\Ionday  in  ilarch,  on  the  thir- 
teenth Monday  after  the  first  Monday  in  March,  on  the  third  Mon- 
day after  the  first  jMonday  in  September,  and  on  the  thirteenth  Mon- 
day after  the  first  Monday  in  September,  each  of  said  terms  to  con- 
tinue for  one  week,  which  shall  be  for  the  trial  of  criminal  actions 
only.  For  the  trial  of  civil  actions  only,  on  the  seventh  [Monday  before 
the  first  Monday  in  ]\iarch,  on  the  first  j\Ionday  after  the  first  Monday 
in  March,  on  the  seventh  Monday  before  the  first  Monday  in  Septem- 
ber, each  of  said  terms  to  continue  for  two  weeks;  also  on  the 
eighth  Monday  after  the  first  Monday  in  March,  on  the  fourteenth 
Monday  after  the  first  Monday  in  March,  on  the  twelfth  Monday 
after  the  first  Monday  in  September,  each  of  said  terms  to  continue 
for  one  week ;  also,  on  the  fourth  Monday  after  the  first  Monday  in 
September,  to  continue  for  three  weeks.  No  process  nor  other  writ 
of  any  kind,  pertaining  to  civil  actions,  shall  be  made  returnable  to 


1506  COURTS— SUPEKIOR— 7//.  Terms.  Ch.  28 

any  of  the  criminal  terms,  and  no  business  pertaining  to  civil  actions 
shall  be  transacted  at  the  criminal  terms  for  Mecklenburg  county. 
At  the  first  fall  and  spring  terms  of  the  criminal  courts  held  for 
each  year  grand  juries  shall  be  drawn,  and  the  presiding  judge  shall 
charge  them  as  provided  by  law,  and  such  grand  juries  shall  serve 
during  the  remaining  fall  and  spring  terms  respectively. 

Cleveland  County — Third  Monday  after  the  first  Monday  in 
March ;  fifth  Monday  before  the  first  Monday  in  September  and 
ninth  Monday  after  the  first  Monday  in  September,  each  to  continue 
for  two  weeks. 

Gaston  County — First  Monday  before  the  first  Monday  in  March, 
and  first  Monday  after  the  first  Monday  in  September,  each  to  con- 
tinue for  two  weeks ;  eleventh  Monday  after  the  first  Monday  in 
March,  to  continue  for  two  weeks,  and  eleventh  Monday  after  the 
first  Monday  in  September.  There  shall  be  drawn  and  charged  a 
gi'and  jury  at  the  first  tenn  held  in  the  spring  and  fall  respectively, 
wliich  shall  serve  at  the  succeeding  spring  and  .fall  terms. 

Lincoln  County — Fifth  Monday  after  the  first  Monday  in  March, 
first  Monday  in  September,  and  fourteenth  Monday  after  the  first 
Monday  in  September. 

Cabarrus  County — Fifth  Monday  before  the  first  Monday  in 
March ;  ninth  Monday  after  the  first  Monday  in  March,  and  seventh 
Monday  after  the  first  Monday  in  September,  each  to  continue  for 
two  weeks ;  first  Monday  before  the  first  Monday  in  September. 

1901,  c.  28,  s.  1;  1903,  c.  177,  ss.  1,  4;   1903,  c.  469;  1905,  c.  75. 
THIRTEENTH   DISTRICT. 

The  thirteenth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Wilkes  County — First  Monday  in  March  and  continuing  one  week, 
for  the  trial  of  criminal  cases  only;  the  fifteenth  Monday  after  the 
first  Monday  in  March,  to  continue  for  one  week,  for  the  trial  of  civil 
cases  only ;  the  second  ]\Ionday  before  the  first,  Monday  in  September, 
for  the  trial  of  criminal  cases  and  motions  in  civil  cases  not  requiring 
a  jury ;  fifth  Monday  after  first  Monday  in  September  and  continuing 
for  two  weeks,  for  the  trial  of  civil  cases  only. 

Catawba  County — Fourth  ilonday  before  the  first  Monday  in 
March,  to  continue  for  two  weeks,  the  first  week  for  the  trial  of 
criminal  cases  only,  the  second  week  for  the  trial  of  civil  cases  only ; 
ninth  Monday  after  the  first  Monday  in  ]\Iarch,  to  continue  for  two 
weeks,  for  the  trial  of  civil  cases  exclusively;  eighth  Monday  befoi'e 
the  first  ]\Ionday  in  September,  to  continue  for  two  weeks,  for  the 
trial  of  both  criminal  and  civil  cases;  eighth  ]\Ionday  after  the  first 


l.iOG  COURTS— SUPERIOK—///.   Terms.  Cli.  28 

ilonday  in  September,  to  continiie  for  two  ^\■eeks,  the  first  week  for 
the  trial  of  criminal  cases  only,  the  second  week  for  the  trial  of  civil 
cases  only. 

Alexander  County — Second  ^londay  before  the  firsi  ilonday  in 
March,  and  fourth  Monday  after  the  first  ilonday  in  Sei^tember. 

Caldwell  County — First  ilonday  before  the  first  ^londny  in 
March ;  second  Monday  after  the  first  Monday  in  September,  for  the 
trial  of  criminal  cases  only,  and  twelfth  ilonday  after  the  first  ilon- 
day  in  September,  for  the  trial  of  civil  cases  exclusively,  each  to 
continue  for  two  weeks. 

Mitchell  County- — Eleventh  IMonday  after  the  first  Monday  in 
March,  and  tenth  Monday  after  the  first  ^londay  in  September, 
each  to  continue  two  ^veeks. 

Watauga  County — Third  Monday  after  the  first  Monday  in 
j\[arch,  and  fourth  Monday  before  the  first  ilonday  in  September, 
each  to  continue  for  two  weeks;  fifteenth  ilonday  after  the  first 
Monday  in  March. 

1901,  c.  28,  s.  1;  1901,  c.  29,  ss.  11,  15;  1903,  cc.  231,  282,  629;  1901,  c.  29, 
ss.  13,  14;   1905,  cc.  521,  528. 

FOURTEENTH    DISTRICT. 

The  fourteenth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Yancey  County — Third  ^londay  after  the  first  Monday  in  March, 
and  first  ]\Ionday  in  September,  each  to  continue  for  two  weeks ;  fif- 
teenth Monday  after  the  first  ^Monday  in  ^larch,  to  continue  for  one 
■week,  for  the  trial  of  civil  causes  only. 

]\IcDowell  County — Second  Monday  before  the  first  Monday  in 
March;  sixth  Monday  before  the  first  ilonday  in  Seiitember,  and 
second  Monday  after  the  first  Monday  in  Septeml^er,  each  to  continue 
for  two  weeks;  the  sixth  Monday  before  the  first  ^Monday  in  ^[arch, 
to  continue  two  weeks,  for  the  trial  of  civil  causes  only. 

Henderson  County — First  Monday  in  !March,  for  trial  cif  criminal 
cases  exclusively,  one  week ;  tenth  Monday  after  the  first  Monday  in 
March,  and  tenth  ilonday  after  the  first  Monday  in  September,  each 
to  continue  for  two  weeks,  for  the  trial  of  civil  cases  exclusively,  ex- 
cept jail  cases  on  the  criminal  docket ;  fourth  Monday  after  the  first 
Monday  in  September,  to  continue  for  two  weeks,  for  the  trial  of 
criminal  cases  exclusively.  The  board  of  county  conunissionors  of 
said  county  is  hereby  authorizeil,  when  they  shall  deem  it  for  tlie 
best  interests  of  the  county,  to  decline  to  draw  a  grand  jury  for  any 
civil  term  of  the  suyierior  court  in  Henderson  county,  and  when  they 
shall  fail  to  do  so,  then  no  criminal  cases  shall  l)e  tried  at  tliat  civil 


1506  COURTS— SUPEPJOR— 777.   Terms.  Cli.   28 

term  of  said  court  except  those  in  which  a  bill  has  been  found  by  a 
previous  grand  jury. 

Eutherford  County — Fourth  Monday  before  the  first  Monday  in 
March,  and  second  Monday  before  the  first  Monday  in  September, 
each  to  continue  for  two  weeks,  for  the  trial  of  civil  cases  exclusively ; 
fifth  Monday  after  the  first  Monday  in  March,  and  eighth  Monday 
after  the  first  Monday  in  September,  each  to  continue  two  weeks,  for 
the  trial  of  criminal  and  civil  causes. 

Polk  County — Seventh  Monday  after  the  first  Monday  in  March, 
and  sixth  Monday  after  the  first  Monday  in  September,  each  to  con- 
tinue for  two  weeks. 

Burke  County — First  Monday  after  the  first  Monday  in  March, 
and  fourth  Monday  before  the  first  Monday  in  September,  each  to 
continue  for  two  weeks,  for  the  trial  of  both  criminal  and  civil  causes ; 
thirteenth  Monday  after  the  first  Monday  in  March,  and  thirteenth 
Monday  after  the  first  Monday  in  September,  to  continue  for  two 
weeks,  for  the  trial  of  civil  causes  exclusively. 

IflOl,  e.  28,  s.  1;  1903,  cc.  588,  722;  1901,  e.  29,  s.  19:  1905,  cc.  318,  416. 

FIFTEENTH    DISTEICT. 

The  fifteenth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to- wit : 

Buncombe  County — Fourth  Monday  before  the  first  Monday  in 
March,  to  continue  for  three  weeks;  seventh  Monday  after  the  first 
Monday  in  March,  fifth  Monday  before  the  first  Monday  in  Septem- 
ber, and  tenth  ilonday  after  the  first  Monday  in  September,  each  to 
continue  for  two  weeks ;  first  j\Ionday  after  the  first  Monday  in  March, 
to  continue  for  four  weeks,  for  the  trial  of  civil  cases  exclusively ; 
twelfth  Monday  after  the  first  Monday  in  March,  to  continue  for  four 
weeks,  for  the  trial  of  civil  cases  exclusively ;  first  Monday  after  the 
first  Monday  in  September,  to  continue  for  six  weeks,  for  the  trial  of 
civil  eases  exclusively ;  thirteenth  Monday  after  the  first  Monday  in 
September,  to  continue  for  two  weeks,  for  the  trial  of  civil  cases 
exclusively.  The  terms  to  be  held  on  the  fourth  Monday  before  the 
first  Monday  in  March,  the  seventh  Monday  after  the  first  Monday  in 
March,  the  fifth  Monday  before  the  first  Monday  in  September,  and 
the  tenth  Monday  after  the  first  Monday  in  September  shall  be  for 
the  trial  of  criminal  as  well  as  for  the  trial  of  civil  cases ;  and  the  first 
week  thereof,  or  such  part  of  said  term  as  may  be  necessary,  shall  be 
for  the  trial  of  criminal  cases. 

Madison  County — On  the  sixth  Monday  before  the  first  Monday 
in  March,  to  continue  for  two  weeks,  for  the  trial  of  civil  cases 
exclusively.     On  the  first  Monday  before  the  first  Monday  in  March, 


150G  COURTS— SUPEKIOR—///.   Tmns.  Cli.   28 

to  continue  for  two  weeks,  for  the  trial  of  criminal  cases  exclusively. 
On  the  ninth  Monday  after  the  first  ilonday  in  ]\[arch,  to  con- 
tinue for  two  weeks,  for  the  trial  of  civil  cases  exclusively;  on  the 
third  Monday  before  the  first  ^Monday  in  September,  to  continue 
for  two  weeks,  for  the  trial  of  criminal  cases  exclusively;  and  on 
the  seventh  Monday  after  the  first  IMonday  in  September,  to  con- 
tinue for  two  weeks,  for  the  trial  of  civil  cases  exclusively. 

Transylvania  Co\inty — Fifth  Monday  after  the  first  Monday  in 
March,  and  the  first  Monday  befure  the  first  Monday  in  Septem- 
ber, each  to  continue  for  two  weeks ;  twelfth  Monday  after  the  first 
Monday  in  September. 

1901,  c.  28,  s.  1;  1903,  cc.  84,  495;   1901,  o.  29,  s.  16;   1905.  c.  419. 
SIXTEENTH    DISTRICT. 

The  sixteenth  district  shall  be  composed  of  the  following  counties, 
and  the  superior  courts  thereof  shall  be  held  at  the  following  times, 
to-wit : 

Haywood  County — Fifth  Monday  before  the  first  Monday  in 
March,  to  continue  for  three  weeks;  eighth  Monday  before  the  first 
Monday  in  September,  and  third  ^Monday  after  the  first  IMonday  in 
September,  each  to  continue  for  two  weeks :  Provided,  that  the  board 
of  commissioners  of  Haywood  county  may,  when  public  interest 
requires  it,  decline  to  draw  a  gi-and  jury  for  the  aforesaid  Tuly  term 
of  court. 

Jackson  County — Second  Monday  before  the  first  ]\roii(]ay  in 
March,  eleventh  Monday  after  the  first  Monday  in  March,  and  the 
fifth  Monday  after  the  first  Monday  in  September  of  each  year,  each 
to  continue  for  two  weeks.  The  term  beginning  on  the  eleventli  ilon- 
day  after  the  first  ilonday  in  ^larch  shall  be  exclusively  for  the  trial 
of  civil  causes,  and  the  terms  beginning  on  the  second  ilonday  before 
the  first  Monday  in  ilarcli  and  on  the  fifth  Monday  after  the  first 
Monday  in  September  shall  be  for  the  trial  of  both  civil  and  criminal 
causes. 

Swain  County — First  Monday  in  March,  sixth  Monday  before 
the  first  Monday  in  September,  and  seventh  Monday  after  the  first 
Monday  in  September,  each  to  continue  for  two  weeks :  Provided, 
that  the  board  of  county  commissioners  of  Swain  county  may,  when 
the  public  interest  requires  it,  decline  to  draw  a  grand  jury  for  the 
July  term. 

Graliam  County — Second  Monday  after  the  first  ^londay  in 
March,  and  first  Monday  in  September,  each  to  continue  for  two 
weeks. 

Cherokee  County — Fourth  Monday  after  the  first  Monday  in 
March ;  fourth  Monday  before  the  first  Monday  in  September,  and 


150C  COURTS— SUPERIOK—///.  Terms.  Cli.  28 

ninth  Monday  after  the  first  Monday  in  September,  each  to  continue 
for  two  weeks. 

Clay  County — Sixth  Monday  after  the  first  Monday  in  ]\Iarch 
and  second  Monday  after  the  first  Monday  in  September. 

Macon  County — Seventh  Monday  after  the  first  Monday  in 
]\Iareh,  and  eleventh  Monday  after  the  first  Monday  in  September, 
each  to  continue  for  two  weeks.  The  board  of  commissioners  of 
Macon  county  may,  for  good  cause,  decline  to  draw  a  jury  for  more 
than  one  week  for  any  term  of  court  provided  for  iii  this  chapter. 

1901,  c.  28,  s.  1;  1901,  c.  29,  ss.  17,  18;   190.3,  cc.  92,  293,  635;  190.5,  ec.  154,  536. 

1507.  Civil  process  and  motions  at  criminal  terms.  Civil  pro- 
cess shall  he  returnable  to,  and  jijcading's  tiled  at,  all  of  the  courts 
designated  by  law  as  exclusively  criminal ;  motions  in  civil  actions 
may  be  heard  upon  due  notice  at  such  criminal  terms ;  and  trial  in 
civil  actions  which  do  not  require  a  jury  may  be  heard  at  such  crim- 
inal terms,  by  consent. 

1901,  c.  28,  s.  2. 

1508.  No  grand  jury  drawn  nor  criminal  process  returnable  to 

or  solicitors  attend,  civil  terms.  No  grand  juries  shall  be  drawn 
for  the  terms  of  court  designated  by  law  as  being  for  the  trial  of  civil 
cases  exclusively,  and  the  solicitors  shall  not  be  required  to  attend 
nor  be  entitled  to  their  certificates  for  attendance  \ipon  any  exclusively 
civil  terms,  unless  there  are  cases  on  the  civil  docket  in  which  they 
officially  appear,  and  no  criminal  process  shall  be  returnable  to  any 
term  designated  in  this  chapter  for  the  trial  of  civil  actions  alone: 
Provided,  this  section  shall  not  ajiply  to  Mecklenburg  county. 
1901,  c.  28,  ss.  3,  7. 

1509.  Rotation  of  judges.  The  judges  of  the  superior  court  shall 
hold  the  courts  of  the  several  judicial  districts  successively,  accord- 
ing to  the  following  order  and  system :  The  judge  of  each  judicial  dis- 
trict shall  hold  the  courts  of  the  fall  circuit  for  the  year  one  thousand 
nine  hundred  and  one  in  the  district  of  which  he  is  the  judge,  and 
successively  thereafter  he  shall  hold  the  courts  of  the  several  jiidicial 
districts  in  the  order  of  their  niimbers,  district  number  one  follow- 
ing district  number  sixteen.  The  judge  riding  any  spring  circuit 
shall  hold  all  the  courts  which  fall  between  January  and  June,  both 
inclusive,  and  the  judge  riding  any  fall  circuit  shall  hold  all  the 
courts  which  fall  between  July  and  December,  both  inclusive. 

Code,  s.  911;  1901,  e.  28,  ss.  4,  9;  K.  C,  c.  31,  s.  20;  1876-7,  c.  27;  1879,  e.  11; 
1885,  c.  180;   Const.,  Art.  IV,  s.  11. 

1510.  Court  adjourned  by  sheriff  when  judge  not  present,   if 

the  judge  of  a  superior  court  shall  not  Ix'  present  to  hold  any  term 


1510  COUKTS— SUPERIOE— ///.  Tenns.  Ch.  2S 

of  a  court  at  the  time  fixed  therefor,  he  may  order  the  sheriff  to 
adjourn  said  court  to  any  day  certain  during  said  term,  and  on  fail- 
ure to  hear  from  said  judge  it  shall  be  the  duty  of  the  sheriff  to 
adjourn  the  court  from  day  to  day  until  the  fourth  day  of  the  term 
inclusive,  unless  he  shall  be  sooner  informed  that  the  judge  from 
any  cause  can  not  hold  the  term.  If  by  sunset  on  the  fourth  day  the 
judge  shall  not  appear  to  hold  the  term,  or  if  the  sheriff  shall  be 
sooner  advised  that  the  judge  can  not  hold  the  term,  it  shall  then 
be  the  duty  of  the  sheriff'  to  adjourn  the  court  until  the  next  term. 

Code,  8.  926;   1901,  c.  269;   1887,  c.  13. 

Note.     For  term  expiring  pending  trial,  see  s.  3266. 

IV.     Special  Teems. 

1511.  What  judge  holds;  exchange  of  courts.    The  governor 

shall  have  jjower  to  appoint  any  judge  to  hold  sjiecial  terms  of  the 
superior  court  in  any  couuty,  and,  by  consent  of  the  governor,  the 
judges  may  exchange  the  courts  of  a  particular  county  or  counties; 
but  no  judge  shall  be  assigned  to  hold  the  courts  of  any  district 
oftener  than  once  in  four  years ;  and  whenever  a  judge  shall  die  or 
resig-n,  his  successor  shall  hold  the  courts  of  the  <listrict  allotted 
to  his  predecessor. 

Code,  s.  913;  R.  C,  c.  31,  s.  20;   1879,  c.  11;  Const.,  Art.  IV,  s.  11. 

1512.  How  ordered.    Whenever  it  shall  appear  to  the  governor 

by  the  certificate  of  any  judge,  a  majority  of  the  board  of  county 
commissioners,  or  otherwise,  that  there  is  such  an  accumulation 
of  criminal  or  civil  actions  in  the  siiperior  court  of  any  county  as 
to  require  the  holding  of  a  special  term  for  its  dispatch,  he  shall 
issue  an  order  to  the  judge  of  the  judicial  district,  in  which  such 
county  is,  or  to  any  other  judge  of  the  superior  court,  requiring  him 
to  hold  a  special  term  of  the  superior  court  for  such  county,  to  begin 
on  a  certain  Monday,  not  to  interfere  with  any  of  the  regular  terms 
of  the  courts  of  his  district  and  hold  for  such  time  as  he  may  desig- 
nate, unless  the  business  be  earlier  disposed  of.  The  judge  shall 
attend  and  hold  such  court,  without  extra  compensation,  except  his 
actual  expenses  to  be  paid  by  the  county  in  which  the  special  term 
is  held. 

Code,  8.   914;    1901,   c.   167;   R.   C.   c.   31,   s.   22;    1868-9,   c.   273;    1876-7,  c.  44. 

1513.  Notice  of.  \Mienever  the  governor  shall  call  a  special  term 
of  the  su])eri<jr  court  for  any  county,  he  shall  notify  the  chairman  of 
the  board  of  commissioners  of  the  county  of  such  cnll,  and  s\u'h  chair- 
man shall  take  immediate  steps  to  cause  competent  jiorsons  to  be  drawn 
and  summoned  as  jurors  for  said  term;  and   also  to  advertise  said 

460 


1513         COURTS— SUPERIOE—/y.  Special  Terms.         Ch.  28 

term  at  the  com'tlioiise  and  at  one  public  place  in  every  township 
of  his  connty,  or  by  publication  of  at  least  two  weeks  in  some  news- 
paper published  in  his  county  in  lieu  of  such  township  advertise- 
ment. 

Code,   s.   915;    18C8-9.   c.   273. 

1514.  Certificate  of  attendance;  compensation.  The  clerk  shall 

give  the  judge  a  certificate  of  attendance  for  the  number  of  days 
occupied  by  the  court,  and  the  judge  shall  thereupon  be  entitled  to 
receive  his  actual  expenses  from  the  commissioners  of  the  county 
in  which  the  court  is  held. 

Code,  s.  918;   1901,  c.   167;   1868-9,  c.  273. 

1515.  Grand  juries  for.  There  shall  be  no  grand  jury  at  any 
special  term,  unless  the  same  shall  \)e  ordered  by  the  governor. 

Code,  s.  921;    1868-9,  e.  273, 

1516.  Jurisdiction.  The  special  terms  of  the  superior  court  held 
in  pursuance  of  this  chapter  shall  have  all  the  jurisdiction  and  pow- 
ers that  regular  terms  of  the  superior  court  have. 

Code,  s.  916;   1868-9,  c.  273. 

1517.  All  persons  must  attend;  process  not  returnable  to.  All 

persons  and  witnesses  summoned  at  the  regular  or  special  term,  and 
officej's  or  others  who  may  be  bound  to  attend  the  next  regular  term 
of  the  court,  shall  attend  the  special  term,  under  the  same  rules, 
forfeitures  and  penalties  as  if  the  term  were  a  regular  term.  But 
no  process  shall  be  made  returnable  tlioreto  except  subpcenas,  or 
other  process  for  the  attendance  of  witnesses. 

Code,  s.  919;   R.  C,  c.  31.  s.  23;    1844,  c.  10;   1848,  c.  29. 

1518.  Subpoenas  returnable  to.  Subpoenas  may  issue  returnable 
on  any  day  of  any  special  term. 

Code,  s.  920;   1868-9,  c.  273. 

V.     Peactice. 

1519.  Minutes  read  each  morning.    Every  morning  during  the 

term  the  judge  presiding  shall  order  the  reading  of  the  minutes  of 
said  court  for  the  day  preceding,  and  the  minutes  of  the  last  day 
shall  be  read  immediately  preceding  the  final  adjournment  of  said 
terra. 

Code,  s.  925;   1861,  c.  3. 

1520.  Nonsuit  not  allowed  after  verdict.  In  actions  where  a  ver- 
dict shall  pass  against  the  plaintiff,  judgment  shall  be  entered  against 
him. 

Code,  s.  936;  R.  C,  e.  31,  s.   110;   2  Hen.  IV.,  e.  7. 
461 


1521  COURTS— SUPERIOR— T'.  Practice.  Cli.  28 

1521.  Suit  for  penalty,  plaintiff  may  reply  fraud  to  plea  of 

release.  If  an  actidu  Le  lii-oiight  ill  yund  faitli  hy  any  person  to 
recover  a  penalty  under  a  law  of  this  state,  or  of  the  United  States. 
and  the  defendant  shall  set  np  in  bar  thereto  a  former  judgment 
recovered  by  or  against  him  in  a  former  action  brought  by  any 
other  person  for  the  same  cause,  then  the  ]ilaintilf  in  such  action, 
brought  in  good  faith,  may  reply  that  the  said  former  judgment  was 
obtained  by  covin ;  and  if  the  collusion  or  covin  so  averred  be  found, 
the  plaintiff  in  the  action  sued  with  good  faith  shall  have  recovery ; 
and  no  release  made  by  such  party  suing  in  covin,  whether  before 
action  brought  or  after,  shall  be  in  anywise  available  or  effectual. 

Code,  s.  932;  R.  C.  c.  31,  s.  100;  4  Hon.  VII,,  c.  20. 

1522.  Suit  on  bonds;  defendant  may  plead  satisfaction.  When 

an  action  shall  be  brought  on  any  single  bill  or  im  any  judgment, 
if  the  defendant  had  paid  the  money  due  upon  such  bill  or  judg- 
ment before  action  brought,  or  where  the  defendant  hath  made 
satisfaction  to  the  plaintiff  of  the  money  due  on  such  bill  or 
judgnnent  in  other  manner  than  by  payment  thereof,  such  ])ayment 
or  satisfaction  may  be  pleaded  in  bar  of  such  action ;  and  where 
only  part  of  the  money  due  on  such  single  bill  or  judgment  hath 
been  paid  by  the  defendant,  or  satisfied  in  other  manner  than  by 
]5ayment  of  money,  such  part  payment  or  part  satisfaction  may  be 
pleaded  in  bar  of  so  much  of  the  monej'  due  on  such  single  bill  or 
judgment,  as  the  same  may  amount  to;  and  where  an  action  is 
brought  on  any  bond  which  hath  a  condition  or  defeasance  to  make 
void  the  same  upon  tlie  payment  of  a  lesser  sum  at  a  day  or  place 
certain,  if  the  obligor,  his  heirs,  executors  or  administrators  have, 
liefore  the  action  brought,  paid  to  the  obligee,  his  executor  or  adminis- 
trator, the  principal  and  interest  due  by  the  condition  or  defeasance 
of  such  bond,  though  such  payment  were  not  made  strictly  according 
to  the  condition  or  defeasance;  or  if  such  obligor,  his  heirs,  execu- 
tors or  administrators  have  before  action  brought  made  satisfaction 
to  the  plaintiff  of  the  ]irincipal  and  interest  due  by  the  condition 
or  defeasance  of  such  bond,  in  other  manner  tlian  by  payment 
thereof,  yet  the  said  ])ayment  or  satisfaction  may  be  pleaded  in 
bar  of  such  action,  and  shall  be  effectual  as  a  bar  thereof,  in  like 
manner  as  if  the  money  had  been  paid  at  the  day  and  place,  accord- 
ing to  the  condition  or  defeasance,  and  so  pleaded. 

Code,  s.  93.3;  R.  C,  c.  31,  s.   101;  4  ITeii.  VH,,  c.  20. 

1523.  Sum  due  with  interest  and  costs,  discharges  penalty  of 

bonds.  If  at  any  time,  pending  an  action  on  any  bond  with  a  pen- 
alty, the  defendant  shall  bring  into  ccmrt,  where  the  action  shall  be 
pending,  all  the  ])rincipal  money  and  interest  due,  and  also  all  such 
costs  as  have  been  expended  in  any  suit  upon  such  bond,  the  said 

462 


1523  COUETS— SUPERIOR— T'.  Practice.  Ch.   28 

money  shall  be  deemed  and  taken  to  be  in  full  satisfaction  and  dis- 
charge of  said  bond,  and  the  court  shall  give  judginent  accordingly. 

Code,  s.  934;   R.  C,  e.   31,  s.   102;   4   Anne,  c.   16. 

1524.  Proceeds  of  judicial  sales  collected  on  motion.  The  su- 
preme and  other  courts  ordering  a  judicial  sale,  or  having  posses- 
sion of  the  bonds  which  may  have  been  taken  on  such  sale,  nu^y,  on 
motion,  after  ten  days'  notice  thereof  in  writing,  enter  judgment  as 
soon  as  the  money  may  become  due  against  the  debtors  or  any  of 
them,  unless  for  good  cause  shown  the  court  shall  direct  some  other 
mode  of  collection. 

Code,  s.  941;   R.  C,  c.  31,  s.  129. 

1525.  Judicial  sale  confirmed,  purchaser  deemed  owner.  Any 

person  let  into  possession  under  any  judici;d  sale  couiirnu'd,  where 
the  title  may  be  retained  as  a  security  for  the  price,  shall  be  deemed 
the  legal  owner  of  the  premises  for  all  purposes  of  bringing  suits 
for  injuries  thereto,  after  the  day  of  sale,  by  trespass  or  wrongful 
possession  taken  or  continued,  in  the  same  manner  as  if  the  title  had 
been  conveyed  to  him  on  the  day  of  sale,  nnless  restrained  by  some 
order  of  the  court  directing  the  sale;  and  the  suit  so  brought  shall 
be  under  the  control  of  the  court  ordering  the  sale. 

Code,  s.  942;   1858-9,  c.  50. 

1526.  Procedure  after  appeal.  In  civil  cases,  at  the  first  term 
of  the  superior  court  after  a  certificate  of  the  determination  of  an 
appeal  is  received,  if  the  judgment  is  atfirmed  the  court  below  shall 
direct  the  execution  thereof  to  proceed,  and  if  said  judgment  is 
modified,  shall  direct  its  modification  and  performance.  If  a  new 
trial  is  ordered  the  cairse  shall  stand  in  its  regiilar  order  on  the 
docket  for  trial  at  such  first  term  after  the  recei]5t  of  the  certificate 
from  the  supreme  court. 

1887,  e.  192,  s.  2. 

1527.  Officer  attending  juries  sworn.  When  any  officer  (except 

such  as  are  appointed  to  attend  the  gTand  jury)  shall  be  appointed 
or  summoned  to  attend  any  superior  court,  the  clerk,  at  the  time  of 
the  first  going  out  of  a  jury  on  the  trial  of  any  civil  or  criminal 
action,  shall  administer  an  oath  to  such  officer,  faithfully  to  attend 
the  several  juries  that  may  be  put  under  his  care  during  that  term, 
that  shall  be  charged  in  the  trial  of  any  civil  or  criminal  action ; 
and  after  such  officer  shall  be  once  so  sworn,  he  shall  be  considered 
to  all  intents  and  purposes  as  acting  upon  the  same  oath  while  attend- 
ing every  jury,  that  he  may  be  called  to  attend  during  that  term. 
Code,  s.  927;  R.  C,  c.  31,  s.  36;    1801,  c.  592. 


] 


1528  COUETS— SUPERIOR— 1'.  Pmdice.  Cli.  28 

1528,  Quakers  may  wear  hats  in  court.  Tho  people  called  Qua- 
kers may  wear  their  lials  in  I'mirt--  of  jiidieatui-e,  as  elsewhere,  accord- 
ing to  the  custom  of  their  sect. 

Code,  s.  943;   R.  C,  c.  31,  s.   131;    1784,  c.  209. 
\'l.       PUOCKSS. 

1529,  Return   on    notice,   evidence.     When   a   notice   shall   issne 

to  the  slicrit}'.   Ills  return   ihercim   that   tin'  same  lias  been  executed 
shall  be  deemed  sufficient  evidence  of  the  .service  thereof. 
Code,  s.  940;  R.  C,  c.  31,  s.  123;  1799,  c.  537. 

1530,  When  directed  to  officer  of  adjoining  county.  If  at  any 

time  there  slioidd  imt  be  in  the  county  a  pniper  officer  to  whom  pre- 
cepts or  process,  original,  mesne  or  final,  of  a  court  of  record,  shall 
or  ought  to  be  directed,  who  can  lawfully  execute  the  same ;  or  if 
there  be  such  officer  who  shall  refuse  or  neglect  to  execute  such  pre- 
cept or  process,  then  the  clerk  of  the  court  from  which  tho  same  hath 
issued  or  shall  issue,  upon  the  facts  being  verified  before  him  by 
■^vi'itten  affidavit,  subscribed  by  the  plaintiff  or  his  agent,  shall  issue 
such  precept  or  ]3rocess  to  the  sheriff  of  any  adjoining  county,  who 
shall  have  powder  to  execttte,  and  shall  exectite  the  same,  in  like  man- 
ner as  if  he  were  sheriff  of  the  county. 

Code,  s!  929;  R.  C,  e.  31,  s.  5,5:  1779,  c.  156;  1821,  c.  1080;  1822,  c.  1132; 
1846,  c.  61. 

1531,  Sheriff  interested  and  no  coroner,  issues  to  officer  of 

adjoining  county.  In  all  cases  where  the  sheriff  of  any  county  shall 
be  interested,  if  there  is  no  coroner  in  said  county,  process  may  be 
issued  to  and  shall  be  executed  by  the  sheriff  of  any  adjoining 
county. 

Code,  s.  930;   1869-70,  e.   175. 


CHAPTER  29. 
COURTS— SUPREME. 

Sections. 
I.     How  and  when  held,  1532—1530 

II.     Practice  in,  l.">37— 1550 

111.     Onicpi-s  of.  1551—1,555 

I.     How  AND  When  Held. 

1532,    How  constituted.  The  supreme  court  shall  consist  of  a  chief 
justice  and  four  associate  justices. 
Const,,  Art.  IV,  s.  6. 


1533  COUETS— SUPEEME— 7.  Held.  Ch.  29 

1533.  Justices  to  take  oath  of  office.  The  justices,  before  they 
act  as  such,  shall,  before  the  goveruor  or  some  judicial  officer,  take 
and  subscribe  the  oaths  appointed  for  the  qualification  of  public 
officers,  and  also  an  oath  of  office,  which  shall  be  certified  by  the 
officer  taking  the  same  and  delivered  to  the  secretary  of  state,  to  be 
safely  kept. 

Code,  s.  !)55;   U.  C,  c.  33,  s.  3;    1818,  c.  963. 

1534.  Quorum.  Three  justices  shall  constitute  a  quoriun  for  the 
transaction  of  the  business  of  the  court. 

Code,  s.  956;   1889,  c.  230. 

1535.  Convenes,  when.  There  shall  be  held  at  the  seat  of  gov- 
ernment of  the  state  in  each  year  two  terms  of  the  supreme  coiirt, 
commencing  on  the  first  Monday  in  February  and  the  last  Mon- 
day in  August. 

Code,  s.  953;  1901,  c.  660;  1887,  c.  49;  1S81,  c.  178. 

1536.  Sits  until  business  is  dispatched;  name  of  court;  ad- 
journed if  no  justice  present  first  Weel<.  The  court  AmW  sit  at  each 
term  until  all  the  business  ou  the  docket  shall  be  determined  or 
continued  on  good  cause  shown.  The  court  shall  bear  the  name  and 
style  of  '"The  Supreme  Court  of  Xorth  Carolina,"  and  shall  be  a 
court  of  record ;  and  the  papers  and  records  belonging  to  the  clerk's 
office  thereof  shall  be  constantly  kept  within  the  city  of  Ealeigh : 
Provided,  that  in  case  no  one  of  the  jiistices  shall  attend  the  term 
during  the  first  week  thereof,  at  the  end  of  that  time  the  court  shall 
stand  adjourned  till  the  next  term,  and  the  causes  on  the  docket 
be  continued. 

Code,  s.  954;  R.  C,  c.  33,  s.  2;  1804,  c.  660;  1805,  o.  674;  1818,  o.  962;  1828, 
c.  13;  1842,  e.  15;  1846,  cc.  28,  29. 

II.     Peactice  in. 

1537.  Original  jurisdiction,  claims  against  state.  The  supreme 

court   shall    have   original    jurisdiction    to    hear   claims    against   the 
state,  but  its  decision  shall  be  merely  recommendatory;  no  process 
in  the  nature  of  execution  shall  issue  thereon ;  they  shall  be  reported 
to  the  next  session  of  the  general  assembly  for  its  action. 
Const.,  Art.  IV,  s.  9. 

1538.  Manner  of  prosecuting  claims  against  the  state.   Any 

person  having  any  claim  against  the  state  may  file  his  complaint 
in  the  office  of  the  clerk  of  the  siijjreme  court,  setting  forth  the 
nature  and  grounds  of  his  claim.  He  shall  cause  a  copy  of  his  com- 
plaint to  be  served  on  the  governor,  and  therein  request  him  to  appear 
on  behalf  of  the  state  and  answer  his  claim.  The  copy  shall  be 
Rev.  Vol.  1—26  465 


1538  COUETS— SrPRE:\IE— 77.  Practice.  Ch.  29 

served  at  least  twenty  days  before  application  for  relief  shall  be 
made  to  the  court.  In  case  of  an  appearance  for  the  state  by  the 
governor,  or  any  other  authorized  otiicer,  the  pleadings  and  trial 
shall  be  conducted  in  such  manner  as  the  court  shall  direct.  If  an 
issue  of  fact  shall  be  joined  on  the  pleadings,  the  court  shall  trans- 
fer it  to  the  superior  court  of  some  convenient  county  for  trial  by 
a  jury,  as  other  issues  of  fact  are  directed  to  be  tried,  and  the 
judge  of  the  court  before  whom  the  trial  is  had  shall  certify  to  the 
supreme  court,  at  its  next  term,  the  verdict  and  the  case,  if  any, 
made  up  and  settled  as  prescribed  in  cases  of  appeal  to  the  supreme 
court.  If  the  state  shall  not  appear  in  the  action  by  any  authorized 
officer,  the  court  may  make  up  issues  and  send  them  for  trial,  as 
aforesaid.  The  supreme  court  shall  in  all  cases  report  the  facts 
found,  and  their  recommendation  thereon,  with  the  reasons  thereof, 
to  the  general  assembly  at  its  next  term. 

Code,  s.  948. 

1539.  Jurisdiction  as  court  of  review.  The  supreme  court  .-^hall 
have  jurisdiction  to  review,  upon  ajipeal,  any  decision  of  the  courts 
below,  upon  any  matter  of  law  or  legal  inference.  And  the  juris- 
diction of  said  court  over  "issues  of  fact"  and  "questions  of  fact" 
shall  be  the  same  exercised  by  it  before  the  adoption  of  the  consti- 
tution of  one  thousand  eight  hundred  and  sixty-eight,  and  the  court 
shall  have  the  power  to  issue  any  remedial  writs  necessary  to  give 
it  a  general  supervision  and  control  over  the  proceedings  of  the  infe- 
rior courts. 

Const.,  Art.  IV,  s.  8. 

1540.  How  cases  taken  to.  Cases  shall  be  taken  to  the  supreme 
court  by  appeal,  as  provided  by  law. 

Code,  s.  946. 

1541.  IVIay  make  rules  of  court.  The  justices  of  the  supreme 
court  shall  prescribe  and  establish  from  time  to  time  rules  of  practice 
for  that  court  and  also  for  the  superior  courts.  The  clerk  shall  certify 
to  the  judges  of  the  superior  court  the  rules  of  practice  for  said 
court,  to  be  entered  on  the  records  thereof  in  each  county. 

Code.  s.  901;  R.  C,  c.  33,  s.  13;   1818,  c.  963. 

1542.  Judgment  on  record;  execution,  where  returnable,    in 

every  case  the  court  may  render  such  sentence,  judgment  and  decree 
as  on  inspection  of  the  whole  record  it  shall  appear  to  them  ought 
in  law  to  be  rendered  thereon;  and  it  may  at  its  discretion  make 
the  writs  of  execution  which  it  may  issue  retiirnable  either  to  the 
said  court,  or  to  the  superior  court:  Provided,  that  wlien  an  execu- 
tion shall  be  made  returnable  as  last  inentinHcd,  a  ccrtificiitc  of  the 


1542  COUETS— SUPREME— 77.  Practice.  Ch.  29 

final  judgment  of  the  supreme  court  shall  always  be  transmitted  to 
the  superior  court  aforesaid,  and  there  be  recorded :  Provided  fur- 
ther, that  the  said  superior  court  may  enforce  obedience  to  the  exe- 
cution, and  in  the  event  of  its  not  being  executed  may  issue  new  or 
further  execution  or  process  thereon  in  the  same  manner  as  though 
the  first  execution  had  issued  from  the  said  sup)erior  court:  Pro- 
vided also,  that  in  criminal  cases  the  decision  of  the  supreme  court 
shall  be  certified  to  the  sujjerior  court  from  which  the  case  Avas 
transmitted,  which  superior  court  shall  proceed  to  judgment  and 
sentence  agreeable  to  the  decision  of  the  supreme  court  and  the  laws 
of  the  state. 

Code,  s.  957;  R.  C,  c.  33,  s.  6;  1799,  c.  520;  1818,  c.  963;  1830,  c.  2;  1868-9, 
c.  962. 

1543.  Appeals  dismissed,  when.  Suits  and  appeals  pending  in 
the  supreme  court  may  be  dismissed  on  failure  to  prosecute  the 
same,  after  a  rule  obtained  for  that  purpose  and  served  on  the  plain- 
tiff or  appellant,  his  agent  or  attorney,  at  least  thirty  days  before 
the  term  next  ensuing  that  of  entering  the  rule ;  when,  if  the  party 
shall  fail  to  prosecute  his  suit  or  appeal,  the  court  shall,  at  the  elec- 
tion of  the  adverse  party,  dismiss  the  suit  or  appeal  at  the  costs  of 
the  plaintiff'  or  appellant,  or  proceed  to  hear  and  determine  it. 

Code,  s.  967;  R.  C,  e.  33,  s.  20;  1848,  c.  28;  Supra.  Ct.  Rules,  15,  et  seq. 

1544.  No  judgment  on  interlocutory  order;  opinion  certified 

below.  When  an  appeal  shall  be  taken  to  the  supreme  court  from 
any  interlocutory  judgment,  the  supreme  court  shall  not  enter  any 
judgment  reversing,  affirming  or  modifying  the  judgTiient,  order  or 
decree  so  appealed  from,  but  shall  cavise  their  opinion  to  be  certified 
to  the  court  below,  with  instructions  to  proceed  upon  such  order, 
judgment  or  decree,  or  to  reverse  or  modify  the  same  according  to 
said  opinion,  and  the  court  below  shall  enter  upon  its  records  the 
opinion  at  length,  and  proceed  in  the  cause  according  to  the  instruc- 
tions. 

Code,  s.  962. 

1545.  Power  over  amendments;  further  testimony,  when.  The 

supreme  court  shall  have  power  to  amend  any  process,  pleading  or 
proceeding  either  in  form  or  substance  for  the  purpose  of  furthering 
justice,  on  such  tei'ms  as  shall  be  deemed  just  at  any  time  before 
final  judgiucnt.  Also  to  amend  by  making  proper  parties  to  any 
case  where  the  court  may  deem  it  necessary  and  proper  for  the  pur- 
poses of  justice  and  on  such  terms  as  the  court  may  prescribe.  And 
also,  whenever  it  shall  appear  necessary  for  the  purpose  of  justice, 
to  allow  and  direct  the  taking  of  further  testimony  in  any  case 
which  may  be  pending  in  said  court  under  such  rules  as  may  be 


1545  COURTS— SUPREME— //.  Practice.  Ch.  29 

prescribed,  or  the  court  may  remand  the  case  to  the  intent  that 
amendments  may  be  made,  further  testimony  taken  or  other  proceed- 
ings had  in  the  court  below. 

Code,  s.  965;  R.  C,  c.  33,  s.  IT;  1777,  c.  115,  s.  75;  1785,  c.  233;  1792,  c.  360; 
1831,  c.  46. 

1546.  Petition  to  rehear  may  be  filed  when;  execution  re- 
strained. A  petition  to  rehear  may  be  tiled  during  the  vacation  suc- 
ceeding the  term  of  the  court  at  which  the  judgment  was  rendered, 
or  within  twenty  days  after  the  commencement  of  the  succeeding 
term,  and  upon  the  filing  of  such  petition  the  chief  justice,  or  either 
of  the  associate  justices,  may,  upon  such  terms  as  he  sees  fit,  make 
an  order  restraining  the  issuing  of  an  execution,  or  the  collection 
and  payment  of  the  same,  until  the  next  term  of  said  court,  or  until 
the  petition  to  rehear  shall  have  been  determined. 

Code,  s.  966;  R.  C,  c.  33,  s.  18;  Supm.  Ct.  Rules,  52,  53,  54. 

1547.  Exhibits,  how  proved.  Exhibits  or  other  documents  rela- 
tive to  cases  pending  in  the  supreme  court  may  be  proved  by  the 
parol  testimony  of  witnesses  to  be  examined  in  said  court  in  the 
same  manner  and  under  the  same  rules  as  such  exhibits  or  docu- 
ments may  be  proved  in  the  superior  court  and  suitors  in  said  court 
may  have  subpoenas  to  enforce  the  attendance  of  witnesses,  who 
shall  be  liable  to  the  same  penalties  and  actions  for  nonattendance, 
and  be  entitled  to  the  same  pay  for  traveling,  ferriage  and  attend- 
ance as  witnesses  in  the  superior  court:  Provided,  that  witnesses 
attending  the  supreme  court  shall  be  taxed  in  the  bill  of  costs  and 
paid  by  the  party  on  whose  behalf  they  may  be  summoned. 

Code,  s.  963;  R.  C,  c.  33,  s.  21;  1820,  c.  1070;  1825,  c.  1282;  1842,  c.  1. 

1548.  Opinions  and  judgments  to  be  in  writing.   The  justices 

shall  deliver  their  opinions  and  judgments  in  writing,  and  the  clerk 
shall  make  no  entry  upon  the  records  of  the  court  that  any  cause 
pending  therein  is  decided,  nor  give  to  any  person  a  certificate  of 
such  decision,  nor  issue  execution  in  such  suit,  until  after  the  opinion 
of  the  court  shall  have  been  delivered  publicly  in  open  court,  and  a 
written  copy  of  the  same  opinion  shall  have  been  delivered  to  the 
clerk ;  which  shall  afterwards  be  filed  among  the  records  of  the 
court  and  published  in  the  reports  of  the  decisions  made  by  the 
court:  Provided,  that  the  justices  shall  not  be  required  to  writ«  their 
opinions  in  full  except  in  cases  in  which  they  deem  it  necessary. 
Code,  9.  964;  1893,  c.  379,  s.  5;  R.  C,  c.  33,  s.  16;  1810,  c.  785. 

1549.  Certificates  transmitted,  when;   execution  for  costs; 

penalty.  The  clerk  on  the  first  ^londay  in  each  lUdiitli  sliall  traus- 
mit  by  some  safe  hand,  or  by  mail,  to  the  clerks  of  the  superior  courts 


ir.49  COUETS— SUPEEME— 77.  Practice.  Ch.  29 

certificates  of  the  decisions  of  the  sui^reme  court  in  cases  sent  from 
said  court,  which  shall  have  been  on  file  ten  days ;  and  thereupon 
the  said  clerks  respectively  shall  issue  execution  for  the  costs  incui-red 
in  the  courts  from  which  the  cases  were  sent ;  and  the  clerk  of  the 
supreme  court  shall  issue  execution  for  the  costs  incurred  in  that 
court,  including  all  publications  in  newspapers  made  in  the  progress 
of  the  cause  in  that  court,  and  by  order  of  the  same,  and  all  postage 
on  letters  which  concern  the  transfer  of  original  papers.  And  if 
the  clerk  shall  fail  for  the  space  of  twenty  days  to  perform  the  duty 
herein  enjoined  of  transmitting  the  said  certificates  of  decisions,  he 
shall  forfeit  and  pay  to  the  party  or  parties  in  whose  favor  the 
supreme  court  shall  have  decided,  one  hundred  dollars. 

Code,  s.  968;  1887,  c.  41;  R.  C,  c.  33,  s.  21;  1820,  c.  1070;  1825,  c.  1282; 
1842,  e.  1,  s.  3. 

1 550.  Records  recorded.  The  court  may  order  the  clerk  to  record 
such  parts  of  the  record  of  cases  as  it  may  deem  necessary. 

Code,  s.  959. 

III.     Officees  of. 

1551.  May  appoint  acting  attorney  general.   If  the  attorney 

general  should  fail  at  any  term  of  the  supreme  court  to  attend  to 
the  business  which  by  law  is  assigned  him,  the  court  may  appoint 
some  counsel  learned  in  the  law  to  discharge  his  duties  during  the 
term. 

Code,  s.  969;   R.  C,  c.  33,  s.  22;   1846,  c.  29. 

1552.  Reporter.    The  supreme  court  may  employ  a  reporter  of  its 

decisions. 

Code,  s.  3363;  1893,  c.  379,  s.  4;  1897,  c.  429. 
Note.     For  compensation,  see  s.  2771. 

1553.  Clerk.  The  clerk  of  the  supreme  court  shall  be  appointed 
by  the  court,  and  shall  hold  his  ofiice  for  eight  years. 

Const.,  Art.  IV,  s.   15. 

1554.  Money  in  hands  of  clerk.  The  clerk  of  the  supreme  court 
shall,  at  the  beginning  of  each  fall  term,  produce  to  the  court  a  state- 
ment on  oath  of  all  moneys  remaining  in  his  hands  which  have  been 
paid  into  his  ofiice  three  years  or  more  previous  thereto,  whether 
received  directly  from  parties  or  from  his  predecessor  in  office,  and  is 
not  detained  in  his  hands  by  special  order  of  the  court,  specifying 
therein  the  name  of  the  person  to  whom  the  same  is  payable,  and  his 
address,  if  known ;  a  copy  of  which  report  shall  be  transmitted  to  the 
state  treasurer  and  to  the  auditor. 

Code,  s.  1864;  R.  C,  o.  73;  1823,  c.  1186;  1831,  c.  3. 


1555  COURTS— SUPREME— ///.   Officers.  Ch.   29 

1555.  Marshal.  The  supreme  court  may  appoint  an  otticer  to 
be  srvk-d  "iiKiislial  (if  the  supreme  court,"  removable  at  will,  who 
shall  attend  upon  the  court  during  its  sessions. 

Code,  s.  950;  1S73-4,  c.  34;  1881,  c.  306. 
Xote.     For  compensation,  see  s.  2770. 


Note.     For  power  of  justices  to  take  probates,  see  s.  989. 

For  clerk's  bond  and  oath  of  office,  see  s.  290. 

For  duty  of  clerk  on  affirmance  in  capital  felony,  see  s.  3284. 


CHAPTER  30. 
DESCENTS. 

( Section  1550.) 

1556.  Rules  of.  When  any  person  shall  die  seized  of  any  inlierit- 
ance,  or  of  any  right  thereto,  or  entitled  to  any  interest  therein,  not 
having  devised  the  same,  it  shall  descend  under  the  following  rules: 

Code,  s.  1281;  R.  C,  c.  38,  s.  1. 

Rule  1.     Lineal  descent. 

Every  inheritance  shall  lineally  descend  forever  to  the  issue  of 
the  person  vcho  died  last  seized,  entitled  or  having  any  interest 
therein,  but  shall  not  lineally  ascend,  except  as  hereinafter  i)ro- 
vided. 

Code,  s.  1281;  R.  C,  e.  38,  Rule  1. 

Rule  2.  Females  inherit  ivith  males,  younger  with  older  children; 
advancements  accounted  for. 
Females  shall  inherit  equally  with  males,  and  younger  with  older 
children :  Provided,  that  whenever  a  parent  shall  die  intestate,  hav- 
ing in  his  or  her  lifetime  settled  upon  or  advanced  to  any  of  his 
or  her  children,  any  real  or  personal  estate,  such  child  so  advanced 
in  real  estate  shall  be  utterly  excluded  from  any  .share  in  the  real 
estate  descended  from  such  parent,  except  so  much  thereof  as  will, 
when  added  to  the  real  estate  advanced,  make  the  share  of  him 
who  is  advanced  equal  to  the  share  of  those  who  may  not  have  been 
advanced,  or  not  equally  advanced.  And  any  child  so  advanced  in 
personal  estate  .shall  be  utterly  excluded  from  any  share  in  tiio  per- 


1556  DESCEXTS.  Ch.  30 

sonal  estate  of  which  the  parent  died  possessed,  except  so  much 
thereof  as  will,  when  added  to  the  personal  estate  advanced,  make 
the  share  of  him  who  is  advanced  equal  to  the  share  of  those  who 
may  not  have  been  advanced,  or  not  equally  advanced.  And  in  case 
any  one  of  the  children  shall  have  been  advanced  in  real  estate  of 
greater  value  than  an  equal  share  thereof  which  may  come  to  the 
other  children,  he  or  his  legal  representatives  shall  be  charged  in 
the  distribution  of  the  personal  estate  of  such  deceased  parent 
with  the  excess  in  value  of  such  real  estate  so  advanced  as  aforesaid, 
over  and  above  an  equal  share  as  aforesaid.  And  in  case  any  of  the 
children  shall  have  been  advanced  in  personal  estate  of  greater  value 
than  an  equal  share  thereof  which  shall  come  to  the  other  children, 
he  or  his  legal  representatives  shall  be  charged  in  the  division  of  the 
real  estate,  if  there  be  any,  with  the  excess  in  value,  which  he  may 
have  received  as  aforesaid,  over  and  above  an  equal  distributive 
share  of  the  personal  estate. 

Code,  s.  1281;  R.  C,  c.  38,  s.  1,  Rule  2;  1784,  c.  204,  s.  2;  1808,  c.  739;  1844, 
c.  51,  ss.  1,  2. 

KuLE  3.  Lineal  descendant  represents  ancestor. 

The  lineal  descendants  of  any  pei'son  deceased  shall  represent  their 
ancestor,  and  stand  in  the  same  place  as  the  person  himself  would 
have  done  had  he  been  living. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  3;   1808,  e.  739. 

Rule  -i.   Collateral  descent  ivhen  estate  derived  from  ancestor. 

On  failure  of  lineal  descendants,  and  where  the  inheritance  has 
been  transmitted  by  descent  from  an  ancestor,  or  has  been  derived  by 
gift,  devise  or  settlement  from  an  ancestor,  to  whom  the  person  thus 
advanced  would  in  the  event  of  such  ancestor's  death,  have  been  the 
heir  or  one  of  the  heirs,  the  inheritance  shall  descend  to  the  next 
collateral  relations,  capable  of  inheriting,  of  the  person  last  seized, 
who  were  of  the  blood  of  such  ancestor,  subject  to  the  two  preceding 
rules. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  4;   1808,  c.  739. 

Rule  5.   Collateral  descent  ichen  estate  not  derived  from  ancestor. 

On  failure  of  lineal  descendants,  and  where  the  inheritance  has 
not  been  transmitted  by  descent  or  derived  as  aforesaid  from  an  ances- 
tor, or  where,  if  so  transmitted  or  derived,  the  blood  of  such  ancestor 
is  extinct,  the  inheritance  shall  descend  to  the  next  collateral  I'elatiou, 
capable  of  inheriting,  of  the  person  last  seized,  whether  of  the  pater- 
nal or  maternal  line,  subject  to  the  second  and  third  rules. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  5;   1808,  c.  739. 
471 


1556  DESCEXTS.  Ch.  30 

EuLE  6.  Half  blood  inherits  icith  whole;  parent  from  child. 

Collateral  relations  of  the  half  blood  shall  inherit  equally  with 
those  of  the  whole  blood,  and  the  degrees  of  relationship  shall  be  com- 
puted according  to  the  rules  which  prevail  in  descents  at  common 
law:  Provided,  that  in  all  cases  where  the  person  last  seized  shall 
have  left  no  issue  capable  of  inheriting,  nor  brother,  nor  sister,  nor 
issue  of  such,  the  inheritance  shall  vest  in  the  father  if  living,  and 
if  not,  then  in  the  mother  if  living. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  6;  1808,  c.  739. 

Rule  7.  Persons  unhorn  tal-e,  u-hen. 

~No  inheritance  shall  descend  to  any  person,  as  heir  of  the  person 
last  seized,  unless  such  person  shall  be  in  life  at  the  death  of  the 
person  last  seized,  or  shall  be  born  within  ten  lunar  months  after  the 
death  of  the  person  last  seized. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  7;  1823,  c.  1210. 

Rule  8.   ^Vhen  ividow  takes  as  heir. 

When  any  person  shall  die,  leaving  none  who  can  claim  as  heir 
to  him,  his  widow  shall  be  deemed  his  heir,  and  as  such  shall  inherit 
his  estate. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  8;   1801,  c.  575,  s.  1. 

Rule  9.  Illegitimate  children  inherit  from  mother. 

When  there  shall  be  no  legitimate  issue,  every  illegitimate  child 
of  the  mother,  and  the  descendant  of  any  such  child  deceased,  shall 
be  considered  an  heir,  and  as  such  shall  inherit  her  estate ;  but  such 
child  or  descendant  shall  not  be  allowed  to  claim,  as  representing 
such  mother,  any  part  of  the  estate  of  her  kindred,  either  lineal  or 
collateral. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  10;   1799,  c.  522. 

Rule  10.   117to  may  take  from  illegitimate  children. 

Illegitimate  children  shall  be  considered  legitimate  as  between 
themselves  and  their  representatives,  and  their  estates  shall  descend 
accordingly  in  the  same  manner  as  if  they  had  been  born  in  wedlock. 
And  in  case  of  the  death  of  any  such  child  or  his  issue,  without  leav- 
ing issue,  his  estate  shall  descend  to  such  person  as  would  inherit,  if 
all  such  children  had  been  born  in  wedlock:  Provided,  that  when  any 
illegitimate  child  shall  die  without  issue,  his  inheritance  shall  vest 
in  the  mother  in  the  same  manner  as  is  provided  in  rule  six  of  this 
chapter. 

Code,  s.  1281;  R.  C,  c.  38,  Rule  11. 


472 


ir.SG  DESCEXTS.  Ch.  30 

J\ULE  11.  Estate  for  life  of  another,  not  devised,  an  estate  of  inherit- 


ance. 


Every  estate  for  the  life  of  another,  not  devised,  shall  be  deemed 
an  inheritance  of  the  deceased  owner,  within  the  meaning  and  opera- 
tion of  this  chapter. 

Code,  s.  1281;  R.  C,  e.  38,  Rule  12. 

KuLE  12.  Seizin  defined. 

Every  person,  in  whom  a  seizin  is  required  by  any  of  the  provis- 
ions of  this  chapter,  shall  be  deemed  to  have  been  seized,  if  he  may 
have  had  any  right,  title  or  interest  in  the  inheritance. 

Code,  s.   1281;   R.  g.,  c.  38,  Rule  13. 

Rule  13.  Issue  of  certain  colored  persons  to  inherit. 

The  children  of  colored  parents  born  at  any  time  before  the  first 
day  of  January,  one  thousand  eight  hundred  and  sixty-eight,  of  per- 
sons living  together  as  man  and  wife,  are  hereby  declared  legitimate 
children  of  such  parents  or  either  one  of  them,  with  all  the  rights 
of  heirs  at  law  and  next  of  kin,  with  respect  to  the  estate  or  estates 
of  any  such  parents,  or  either  one  of  them.  If  such  children  be 
dead  their  issue  shall  represent  them  with  all  the  rights  of  heirs  at 
law  and  next  of  kin  provided  by  this  section  for  their  deceased 
parents  or  either  of  them  if  they  had  been  living;  and  the  provision 
of  this  section  shall  apjaly  to  the  estates  of  such  children  as  are  now 
deceased  or  otherwise. 

Code,  s.  1281;   1897,  c.  153;   1879,  e.  73. 


Note.     For  distribution  of  personal  property,  see  Administration,  subciiapter 
Distribution. 


CHAPTER  31. 
DIVORCE  AND  ALIMONY. 

(Sections  15.57—1.570.) 

1557.    Jurisdiction.    The  superior  court  shall  have  jurisdiction  of 
complaints  for  divorce  and  alimony,  or  either. 

Code,  s.   1282;    1868-9,  e.  93,  s.  45. 


1558  DIVORCE  AXD  ALIMONY.  Ch.  31 

1558.  Bond  for  costs  unnecessary.  It  shall  not  be  necessary  for 
either  ])arty  tci  a  proceeiliiig  for  dixurce  or  alimony  to  jjivc  any  under- 
taking to  the  other  party  to  secure  such  costs  as  such  other  partv'  may 
recover. 

Code,  s.   1294;    1S71-2,  c.   193,  s.  41. 

1  559.  Venue.  In  all  proceedings  fur  divorce,  the  summons  shall 
be  returnable  to  the  court  of  the  county  in  which  the  a|i])licant 
resides. 

Code,  s.   1289;   1871-2.  c.   193,  s.  40. 

1560.  What  marriages  may  be  declared  void  on  application  of 

either  party.  The  sujierior  court  in  term  time,  nn  ap]ilication  made 
as  by  law  provided,  by  either  party  t<i  a  marriage  contracted  con- 
trary to  the  prohibitions  contained  in  the  chapter  entitled  ]\Iarriage, 
or  declared  void  by  said  chapter,  may  declare  such  marriage  void 
from  the  beginning,  subject,  nevertheless,  to  the  proviso  contained 
in  said  chapter. 

Code,  s.  1283;   1871-2,  c.  193,  s.  33. 

1561.  Grounds  for  absolute  divorce.  Marriages  may  be  dissolved 
and  the  jiartios  theretd  ilivdrced  fnan  the  Ixmds  of  matrimony,  on 
application  of  the  party  injured,  made  as  by  law  provided,  in  the 
following  cases : 

1.  If  the  hu.sband  shall  commit  fornication  and  adultery. 

2.  If  the  wife  shall  commit  adultery. 

3.  If  either  party  at  the  time  of  the  marriage  was  and  still  is 
ijaturally  impotent. 

4.  If  the  wife  at  the  time  of  the  marriage  be  pregnant,  and  the 
husband  be  ignorant  of  the  fact  of  such  pregnancy  and  be  not  the 
father  of  the  child  with  which  the  wife  was  pregnant  at  the  time 
of  the  marriage. 

Code,  s.  1285:  1887,  c.  100;  1889,  c.  442;  1899,  c.  29;  1903,  c.  490;  1871-2, 
c.  193,  s.  3.5:  1879,  c.  132;  1905,  c.  409. 

1562.  From  bed  and  board,  grounds.  The  superior  court  may 

grant  divorces  from  bed  and  board  on  application  of  the  party 
injured,  made  as  by  law  provided,  iii  the  following  cases: 

1.  If  either  party  shall  abandon  his  or  her  family ;  or, 

2.  Shall  maliciously  turn  the  other  out  of  doors;  or, 

3.  Shall  by  cruel  or  barbarous  treatment  endanger  the  life  of  the 
other ;  or, 

4.  Shall  ofFor  such  indignities  to  the  jierson  of  the  other  as  to  ren- 
der his  or  her  condition  intolerable  and  life  burdensome ;  or, 

5.  Shall  become  an  habitual  drunkard. 
Co<le,  s.  1280;   1871-2,  c.  193,  s.  36. 


1563  DIVOEOE  AXD  ALBIONY.  Ch.  .31 

1563.  Affidavit  to  be  filed  with  complaint;  provisos.  The  plain- 
tiff in  a  complaint  seeking  eitlier  iliv(jrrL'  or  alinKuiy,  or  both,  shall 
file  wi'th  his  or  her  complaint  an  affidavit  that  the  facts  set  forth  in 
the  complaint  are  trne  to  the  best  of  affiant's  knowledge  and  belief, 
and  that  the  said  complaint  is  not  made  out  of  levity  or  by  collusion 
between  husband  and  wife ;  and  if  for  divorce,  not  for  the  mere  pui"- 
pose  of  being  freed  and  separated  from  each  other,  but  in  sincerity 
and  truth  for  the  causes  mentioned  in  the  complaint ;  and  the  plain- 
tiff shall  also  set  forth  in  such  affidavit,  either  that  the  facts  set  forth 
in  the  complaint,  as  grounds  for  divorce,  have  existed  to  his  or  her 
knowledge  at  least  six  months  prior  to  the  filing  of  the  complaint ; 
and  that  complainant  has  been  a  resident  of  the  state  for  two  years 
next  preceding  the  filing  of  the  complaint;  or,  if  the  wife  be  the 
plaintiff,  that  the  husband  is  removing,  or  about  to  remove  his  prop- 
erty and  effects  from  the  state,  whereby  she  may  be  disappointed 
in  her  alimony :  Provided,  if  any  wife  shall  file  in  the  office  of  the 
superior  court  clerk  of  the  county  where  she  resides  an  affidavit, 
setting  forth  the  fact  that  she  intends  to  file  a  petition  or  bring  an 
action  for  divorce  against  her  husband,  and  that  she  has  not  had 
knowledge  of  the  facts  upon  which  said  petition  or  action  will  be 
based  for  six  months,  then  and  in  that  ease  it  shall  be  lawful  for  such 
wife  to  reside  separate  and  apart  from  her  said  husband,  and  ^o 
secure  for  her  own  use  the  wages  of  her  owni  labor  during  the  time 
she  shall  so  remain  separate  and  apart  from  her  said  husband :  Pro- 
vided further,  that  if  such  wife  shall  fail  to  file  her  jietition  or  bring 
her  action  for  divorce  within  thirty  days  after  the  six  months  shall 
have  expired  since  her  knowledge  of  the  facts  upon  which  she 
intends  to  file  her  said  petition  or  bring  her  said  action,  then  she 
shall  not  be  entitled  any  longer  to.  the  benefit  of  this  section. 

Code,  s.  1287;   1868-9,  c.  93,  s.  46;   1869-70,  c.   184. 

1564.  Material  facts  found  by  jury;  parties  can  not  testify  to 

adultery!  The  material  facts  in  every  complaint  asking  fur  a  divorce 
shall  be  deemed  to  be  denied  by  the  defendant,  whether  the  same 
shall  be  actually  denied  by  pleading  or  not,  and  no  judgment  shall 
be  given  in  favor  of  the  plaintiff  in  any  such  complaint  until  such 
facts  have  been  found  by  a  jury,  and  on  such  trial  neither  the  hus- 
band nor  wife  shall  be  a  competent  witness  to  prove  the  adultery  of 
the  other,  nor  shall  the  admissions  of  either  party  be  received  as  evi- 
dence to  prove  such  fact. 

Code,  s.  1288;  1868-9,  e.  93,  s.  47. 

1565.  Alimony  on  divorce  from  bed  and  board.  When  any  court 

shall  adjudge  any  two  married  persons  divcircod  from  bed  and  board, 
it  may  also  decree  to  the  party  upon  whose  application  such  judg- 
ment was  rendered,  such  alimony  as  the  circumstances  of  the  several 

475 


1565  DIVOECE  AXD  ALIMOXY.  Ch.  31 

parties,  may  render  necessary;  which,  howevei',  shall  not  in  any 
ease  exceed  the  one-third  part  of  the  net  annual  income  from  the 
estate,  occupation  or  labor  of  the  party  against  whom  the  judgment 
shall  be  rendered. 

Code,  s.  1290;   1871-2,  c.  103,  s.  37. 

1566.  Alimony  pendente  lite.  If  any  married  woman  shall  apply 
to  a  court  for  a  divorce  from  the  bonds  of  matrimony,  or  from  bed 
and  board,  with  her  husband,  and  shall  set  forth  in  her  complaint 
such  facts,  which  upon  application  for  alimony  shall  be  found  by 
the  judge  to  be  true  and  to  entitle  her  to  the  relief  demanded  in 
the  complaint,  arfd  it  shall  appear  to  the  judge  of  such  court,  either 
in  or  out  of  term,  by  the  affidavit  of  the  complainant,  or  other  proof, 
that  she  has  not  sufficient  means  whereon  to  subsist  during  the  prose- 
cution of  the  suit,  and  to  defray  the  necessary  and  proper  e.\]ienses 
thereof,  the  judge  may  order  the  husband  to  pay  her  such  alimony 
during  the  pendency  of  the  suit  as  shall  appear  to  him  just  and 
proper,  having  regard  to  the  circumstances  of  the  parties ;  and  such 
order  may  be  modified  or  vacated  at  any  time,  on  the  application 
of  either  party  or  of  any  one  interested :  Provided,  that  no  order 
allowing  alimony  pendente  lite  shall  be  made  unless  the  husband 
shall  have  had  five  days'  notice  thereof,  and  in  all  eases  of  applica- 
tion for  alimony  pendente  lite  under  this  or  the  succeeding  section, 
whether  in  or  out  of  term,  it  shall  be  admissible  for  the  h\isband  to 
be  heard  by  affidavit  in  reply  or  answer  to  the  allegations  of  the 
complaint:  Provided  further,  that  if  the  husband  shall  have  aban- 
doned his  wife  and  left  the  state,  or  shall  be  in  parts  unknown,  or 
shall  be  about  to  i-emove  or  dispose  of  his  property  for  the  purpose 
of  defeating  the  claim  of  his  wife,  no  notice  shall  be  necessary. 

Code,  s.  1291;   1871-2,  c.  193,  s.  38;   1883,  c.  67. 

1 567.  Alimony  without  divorce,  when.  If  any  husband  shall  sep- 
arate himself  from  his  wife  and  fail  to  jirovide  her  with  the  neces- 
sary subsistence  according  to  his  means  and  condition  in  life,  or 
if  he  shall  be  a  drunkard  or  spendthrift,  the  wife  may  ap]ily  for  a 
special  proceeding  to  the  judge  of  the  superior  court  for  the  county 
in  \\hioh  he  resides^  to  have  a  reasonable  subsistence  secured  to 
her  and  to  the  children  of  the  marriage  from  the  estate  of  her  h;is- 
band,  and  it  shall  be  lawful  for  such  judge  to  cause  the  husband 
to  secure  so  much  of  his  estate  as  may  be  proper  according  to  his 
condition  and  circumstances,  for  the  benefit  of  his  said  wife  and 
children,  having  regard  also  to  the  separate  estate  of  the  wife. 

Code,   9.   1292;    1871-2,   c.   193,  s.   39. 

1568.  Alimony  in  real  estate,  writ  of  possession  issued,  in  ail 

cases  in  which  tlie  court  sluill  grant  alimony  by  the  assignment  of 

476 


1568  DIVOECE  AXD  ALIMONY.  Cli.  31 

real  estate,  the  court  shall  have  power  to  issue  a  writ  of  possession 
when  necessary  in  the  judgment  of  the  court  to  do  so. 
Code,  s.  1293;   1868-9,  c.  123,  s.  1. 

1569.  Effects  of  absolute  divorce.  After  a  judgment  of  divorce 
from  the  bonds  of  matrimony,  all  rights  arising  out  of  the  marriage 
shall  cease  and  determine,  and  cither  party  may  marry  again  unless 
otherwise  provided  by  law:  Provided,  that  no  judgment  of  divorce 
shall  render  illegitimate  any  children  in  esse,  or  begotten  of  the 
body  of  the  wife  during  coverture. 

Code,  s.   1295;   1871-2,  c.  193,  s.  43. 

1570.  Custody  of  children  in  divorce.  After  the  filing  of  a  com- 
plaint in  any  action  for  divorce,  whether  from  the  bonds  of  matri- 
mony, or  from  bed  and  board,  both  before  and  after  final  judgment 
therein,  it  shall  be  lawful  for  the  judge  of  the  court,  in  which  such 
application  is  or  was  pending,  to  make  such  orders  respecting  the 
care,  custody,  tuition  and  maintenance  of  the  minor  children  of  the 
marriage  as  may  be  proper,  and  from  time  to  time  to  modify  or 
vacate  such  orders,  and  may  commit  their  custody  and  tuition  to  the 
father  or  mother  as  may  be  thought  best;  or  the  court  may  commit 
the  custody  and  tuition  of  such  infant  children,  in  the  first  place, 
to  one  parent  for  a  limited  time,  and  after  the  expiration  of  that 
time,  then  to  the  other  parent;  and  so  alternately:  Provided,  that 
no  order  respecting  the  children  shall  be  made  on  the  application 
of  either  party  without  five  days'  notice  to  the  other  party,  imless  it 
shall  appear  that  the  party  having  the  possession  or  control  of  such 
children  has  removed  or  is  about  to  remove  the  children,  or  himself, 
beyond  the  jurisdiction  of  the  court. 

Code,  ss.  1296,  1570;   1871-2,  c.  193,  s.  46. 


Note.     Effect  of  absolute  divorce  on  right  to  administer,  see  ss.  7,  8,  9. 
For  effect  of  abandonment  on  custody  of  children,  see  s.  180. 
Right  of  appeal  in  habeas  corpus  as  to  custody  of  children,  see  s.  1854. 
For  effect  on  property  rights,  see  ss.  2109-2111. 


15T1  ELECTEIC  COMPAXIES.  Ch.  32 


CHAPTER  32. 
ELECTRIC  COMPANIES. 

(Sections  1.371—1.377.) 

1571.  May  use  public  highways.  Anv  duly  incoipoi-ated  com- 
pany possessing  the  poM'er  to  construct  telegraph  or  telephone  lines, 
lines  for  the  conveying  of  electric  power  or  for  lights,  either  or  all, 
shall  have  the  right  to  construct,  maintain  and  operate  such  lines 
along  any  railroad  or  other  public  highway,  Init  such  lines  shall  be 
so  constructed  and  maintained  as  not  to  obstrxict  or  hinder  the  usual 
travel  on  such  railroad  or  other  highway. 

Code,  s.  2007;   1899,  c.  64,  s.  1;   1903,  c.  562;   1874-5,  c.  203,  s.  2. 

1572.  May  acquire  easement  in  right  of  way.  Such  telegraph. 

telephone,  or  electric  i)Ower  or  lighting  company  shall  have  power 
to  contract  with  any  person  or  corporation,  the  owner  of  any  lands 
or  of  any  franchise  or  easement  therein,  over  which  its  lines  arc 
proposed  to  be  erected,  for  the  right  of  way  fur  planting,  repairing 
and  preservation  of  its  poles  or  other  property,  and  for  the  erection 
and  occupation  of  offices  at  suitable  distances  for  the  public  accom- 
modation :  Provided,  that  this  section  shall  not  be  construed  as  requir- 
ing electric  power  or  lighting  companies  to  erect  offices  for  public 
accommodation. 

Code,  s.  2008;   1899,  c.  64;   1903,  c.  562.  ss.  1,  2;   1874-5,  c.  203,  s.  3. 

1573.  May  exercise  right  of  eminent  domain.   Such  telegraph, 

telephone,  electric  power  or  lighting  comjiany  shall  lie  entitled  to  the 
right  of  way  over  the  lands,  privileges  and  easements  of  other  persons 
and  corporations,  and  the  right  to  erect  poles  and  to  establish  offices, 
iijjon  making  just  compensation  therefor. 

Code,  s.  2009;   1899,  c.  64;   1903,  c.  5G2 ;   1874-5,  c.  203,  s.  4. 

1574.  Proceedings  to  condemn  land.  Whenever  such  telegraph, 
telephone,  electric  power  or  lighting  company  shall  fail  on  applica- 
tion therefor  to  secure  by  contract  or  agreement  such  right  of  way 
for  the  ])urposes  afoi'csaid  over  the  lands,  privilege  or  easement  of 
another  person  or  corjioration,  it  shall  be  lawful  for  such  company, 
first  giving  security  for  costs,  to  file  its  petition  before  the  supe- 
rior court  for  the  county  in  which  said  lands  are  situate,  or  into 
or  thro\igh  which  such  easement,  jirivilegc'  or  franchise  extends,  set- 

478 


1574  ELECTRIC  COMPANIES.  Ch.  32 

ting  forth  and  describing  the  parcels  of  land,  privilege  or  easement 
over  which  the  way,  privilege  or  right  of  use  is  claimed,  the  owners 
of  the  land,  easement  or  privilege,  and  their  place  of  residence,  if 
known,  and  if  not  known  that  fact  shall  be  stated,  and  such  petition 
shall  set  forth  the  nse,  easement,  privilege  or  other  right  claimed, 
and  must  be  sworn  to,  and  if  the  nse  or  right  sought  be  over  or  upon 
an  casement  or  right  of  way,  it  shall  be  sufficient  to  give  jurisdiction 
if  the  person  or  corporation  owning  the  easement  or  right  of  way 
be  nyide  a  party  defendant:  Provided,  that  only  the  interest  of  such 
j^arties  as  are  brought  before  the  court  shall  be  condemned  in  any 
such  proceedings,  and  if  the  right  of  way  of  a  railroad  or  railway 
company  sought  to  be  condemned  extends  into  or  through  more  coun- 
ties than  one,  the  whole  right  and  controversy  may  be  heard  and  deter- 
mined in  one  county  into  or  throiigh  which  such  right  of  way  extends : 
Provided  further,  that  it  shall  not  be  necessary  for  the  petitioner  to 
make  any  survey  of  or  o\'er  the  right  of  way,  nor  to  file  any  maj)  or 
survey  thereof,  nor  to  file  any  certificate  of  the  location  of  its  line  by 
its  board  of  directors. 

Code,  s.  2010;  1899,  c.  64,  s.  2;  1903,  c.  562;  1874-5,  c.  203,  s.  5. 

1575.  Copy  of  petition  to  be  served.  A  copy  of  such  petition, 

with  a  notice  of  the  time  and  place  the  same  will  be  presented  to 
the  superior  court,  must  be  served  on  the  persons  whose  interests 
are  to  be  affected  by  the  proceeding  at  least  ten  days  prior  to  the 
presentation  of  the  same  to  the  said  court. 
Code,  s.  2011;   1874-5,  e.  203,  s.  6;   1899,  c.  64,  9.  3. 

1576.  Proceedings  same  as  for  railroads.  The  proceedings  for 

the  condemnation  of  lands,  or  any  easement,  or  interest  therein,  for 
the  use  of  telegraph,  telephone,  "electric  power  or  lighting  com- 
panies, the  apf)raisal  of  the  lands,  or  interest  therein,  the  duty  of 
the  commissioners  of  appraisal,  the  right  of  either  party  to  file  excep- 
tions, the  report  of  commissioners,  the  mode  and  manner  of  appeal, 
the  power  and  authority  of  the  court  or  judge,  the  final  judgment, 
and  the  manner  of  its  entry  and  enforcement,  and  the  rights  of  the 
company  pending  the  appeal,  shall  be  as  prescribed  for  condemning 
lands  to  the  use  of  railroads. 

Code,  s.  2012;  1899,  c.  64;  1903,  c.  562. 

1577.  Commissioners  to  inspect  premises.  In  considering  the 

question  of  damages  when  the  interest  sought  is  over  an  easement, 
privilege  or  right  of  way,  the  commissioners  may  inspect  the  prem- 
ises or  rest  their  finding  on  such  testimony  as  to  them  may  be  satisfac- 
tory. 

Code,   s.   2013;    1874-5,   c.   203,   s.   9. 


Note.     For  certain  powers  of  electric  companies,  see  ss.  1132,  1133. 
479 


1578  ESTATES.  Ch.  33 


CHAPTEE  33. 
ESTATES. 

(Sections  1578—1591.)  t 

1578.  Estates  in  tail  converted  into  fee  simple.   Every  jjer- 

son  seized  of  an  estate  in  tail  shall  be  deemed  to  be  seized  of  the 
same  in  fee  simple ;  and  all  sales  and  conveyances,  made  bona  fide 
and  for  valuable  consideration,  since  the  first  day  of  Jannary,  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and  seventy- 
seven,  by  any  tenant  in  tail  in  actual  possession  of  any  real  estate 
where  such  estate  hath  been  conveyed  in  fee  simple,  shall  be  good 
and  effectual  in  law  to  bar  any  tenant  in  tail  and  in  remainder,  of 
and  from  all  claim,  action  and  right  of  entry,  whatsoever,  of,  in, 
and  to  such  entailed  estate,  against  any  purchaser,  his  heirs,  or 
assigns,  now  in  actual  possession  of  such  estate,  in  the  same  manner 
as  if  such  tenant  in  tail  had  possessed  the  same  in  fee  simple. 
Code,  s.  1325;  R.  C,  c.  43,  s.  1;   1784,  e.  204,  s.  5. 

1579.  Joint  tenancy;  survivorship  abolished,  when.  In  all  es- 
tates, real  or  personal,  held  in  joint  tenancy,  the  part  or  share  of 
any  tenant  dying  shall  not  descend  or  go  to  the  surviving  tenant, 
but  shall  descend  or  be  vested  in  the  heirs,  executors,  or  administra- 
tors, or  assigns  respectively  of  the  tenant  so  dying,  in  the  same 
manner  as  estates  held  by  tenancy  in  common:  Provided,  that 
estates  held  in  joint  tenancy  for  the  purpose  of  carrying  on  and 
promoting  trade  and  commerce,  or  any  useful  work  or  manufacture, 
established  and  pursued  with  a  view  of  profit  to  the  parties  therein 
concerned,  shall  be  vested  in  the  surviving  partner,  in  order  to 
enable  him  to  settle  and  adjust  the  partnership  business,  or  pay  off 
the  debts  which  may  have  been  contracted  in  pursuit  of  the  said 
joint  business ;  but  as  soon  as  the  same  shall  be  effected,  the  survivor 
shall  account  with,  and  pay,  and  deliver  to  the  heirs,  executors, 
administrators  and  assigns  respectively  of  such  deceased  partner,  all 
such  part,  share,  and  sums  of  money  as  he  may  be  entitled  to  by 
virtue  of  the  original  agreement,  if  any,  or  according  to  his  share  or 
part  in  the  joint  concern,  in  the  same  manner  as  partnership  stock 
is  usually  settled  between  joint  merchants  and  the  representatives 
of  their  deceased  partners. 

Code,  R.  1326;  R.  C,  c.  43,  s.  2;  1784,  c.  204,  ?.  6. 

480 


15.S0  ESTATES.  Ch.  33 

1580.  Survivorship  among  trustees.  In  all  cases  where  only  a 
naked  trust  iKit  cunplcd  with  a  bcneticial  interest  has  been  created  or 
exists,  or  shall  be  created,  and  the  conveyance  is  to  two  or  more  trus- 
tees, the  right  to  perform  the  trust  and  make  estates  under  the  same 
shall  be  exercised  by  any  one  of  such  trustees,  in  the  event  of  the 
(leatli  of  his  cotrustee  or  cotrustees  or  the  refusal  or  inability  of  the 
cotrustee  or  cotrustees  to  perform  the  trust;  and  in  cases  of  tiiists 
herein  named  the  trustees  shall  hold  as  joint  tenants,  and  in  all 
respects  as  joint  tenants  held  before  the  year  one  thousand  seven  hun- 
dred and  eighty-four. 

1885,  c.  327,  s.  1. 

Note.     Executors  and  administrators  hold  as  joint  tenants,  see  s.  166. 

For  revocation  of  contingent  estates,  see  s.  1045. 

1581.  How  certain  contingent  limitations  construed.    Every 

contingent  limitation  in  any  deed  or  will,  made  to  depend  upon  the 
dying  of  any  person  without  heir  or  heirs  of  the  body,  or  without 
issue  or  issues  of  the  body,  or  without  children,  or  offspring,  or 
descendant,  or  other  relative,  shall  be  held  and  interpreted  a  limita- 
tion to  take  effect  when  such  person  shall  die,  not  having  such  heir, 
or  issue,  or  child,  or  offspring,  or  descendant  or  other  relative  (as 
the  case  may  be)  living  at  the  time  of  his  death,  or  born  to  him 
within  ten  lunar  months  thereafter,  unless  the  intention  of  such  limi- 
tation be  otherwise,  and  expressly  and  plainly  declared  in  the  face 
of  the  deed  or  will  creating  it:  Provided,  that  the  rule  of  construc- 
tion contained  in  this  section  shall  not  extend  to  any  deed  or  will 
made  and  executed  before  the  fifteenth  of  January,  one  thousand 
eight  hundred  and  twenty-eight. 

Code,  s.  1327;  R.  C,  c.  43,  s.  3;  1827,  c.  7. 

1582.  Unborn  infant  in  esse  may  take  by  deed.  An  infant  un- 
born, but  in  esse,  shall  be  deemed  a  person  capable  of  taking  by  deed 
or  other  writing  any  estate  whatever  in  the  same  manner  as  if  he 
were  born. 

Code.  s.  1328;   R.  C,  c.  43,  s.  4. 

1583.  Heirs  of  living  person  construed  to  mean  children.  Any 

limitation  by  de^d,  will,  or  otlier  writing,  tn  the  heirs  of  a  living 
person,   shall   be   construed    to   be   to    the   eliildren    of   such    person, 
unless  a  contrary  intention  appear  by  the  deed  or  will. 
Code,  s.  1-329;  E.  C,  c.  43,  s.  5. 

1584.  Conveyance  to  use,  possession  transferred  to  use  with- 
out livery  of  seizin.  By  deed  of  bargain  and  sale,  or  by  deeds  of  lease 
and  release,  or  by  covenant  to  stand  seized  to  use,  or  deed  operating  by 
way  of  covenant  to  stand  seized  to  use,  or  otherwise,  by  any  manner 
or  means  whatsoever  it  be,  the  possession  of  tlie  bargainor,  releasor. 

Rev.  Vol.  1—27  481 


1584  ESTATES.  Ch.  33 

or  covenanter  shall  be  deemed  to  be  transferi-ed  to  the  bargainee, 
releasee,  or  person  entitled  to  the  n.se,  for  the  estate  or  interest  wliich 
such  i^erson  shall  have  in  the  use,  as  perfectly  as  if  the  bargainee, 
releasee  or  person  entitled  to  the  use  had  been  enfeoffed  at  commmi 
law  with  livery  of  seizin  of  the  land  intended  to  be  conveyed  by 
such  deed  or  covenant. 

Code,  s.   1330;   R.  C,  c.  43,  s.  6;   27  Hen.  VIII.,  e.  10. 

1585.  Rights  of  grantee  of  reversion  against  life  tenant.  When 

ever  a  conveyance  shall  be  made  by  any  person  of  any  reversion 
in  lands,  rents,  tenements,  or  hereditaments,  which  at  the  time  i>f 
such  conveyance  shall  be  held  by  any  ot^ier  person  for  a  term  of  life 
or  years,  such  grantee,  his  heirs,  executors,  administrators,  and 
assigns  shall  have  the  like  advantages  against  the  tenant  for  lifV, 
and  against  the  tenant  for  years,  his  executors,  administrators,  and 
assigns,  by  entry  for  nonpayment  of  rent  and  for  doing  of  waste, 
and  the  same  benefit  and  advantage  and  reniedie^s  by  action  for  tlie 
not  performing  of  other  conditions,  covenants,  or  agreements,  con- 
tained and  expressed  in  the  indentures  or  other  agreement,  by 
which  such  tenant  for  life  or  years  holds  the  same  lands,  tenements, 
rents  or  hereditaments  against  said  tenant  for  life  or  for  years, 
his  executors,  administrators  and  assigns,  as  the  grantor  or  lessor 
himself  or  his  heirs  might  have. 

Code,  s.  1331;  E.  C,  c.  43,  s.  7;   32  Hen.  VIII..  e.  34;    18G8-9,  c.   156,  s.   18. 

1586.  Right  of  life  tenant  against  grantee  of  reversion.  Lessees 

and  grantees  of  lands,  rents,  tenements  and  hereditaments  for 
term  of  years  or  life,  their  executors,  administrators  and  assigns, 
shall  have  like  action,  advantage  and  remedy  against  every  person, 
his  heirs  and  assig-ns,  who  shall  have  any  conveyance  from  any  per- 
son of  the  reversion  of  the  same  lands,  rents,  tenements  and  heredita- 
ments, so  let  or  any  parcel  thereof,  for  any  condition,  covenant  or 
agreement  contained  or  expressed  in  the  indenture  of  their  leases, 
as  the  same  lessees,  or  any  of  them,  might  and  should  have  had 
against  the  said  le.ssor  and  grantor,  and  his  heirs. 
Code,  s.  1332;  E.  C,  c.  43,  s.  8;  32  Hen.  VIII.,  c.  34,  s.  2.  . 

1587.  Collateral  warranties  abolished;  warranties  by  life  ten- 
ant good  only  as  to  heir.  All  collateral  warranties  are  al)iilished; 
and  all  warranties  made  by  any  tenant  for  life  of  lands,  tcncnients  or 
hereditaments,  the  same  descending  or  coming  to  any  person  in  rever- 
sion or  remainder  shall  be  void;  and  all  such  warranties,  as  afore- 
said, shall  be  deemed  covenants  ntily.  and  biii<l  the  covenantor  in 
like  manner  as  other  obligations. 

Code,  s.  1334;   E.  C,  c.  43,  s.   10;  4  Anne,  c.   16,  s.  21;   1852,  c.   16. 


15S8  ESTATES.  Ch.  33 

1588.  Spendthrift  trusts  authorized.  It  shall  be  lawful  for  any 

2>ersou  by  deed  or  will  to  convey  any  propei'ty,  which  does  not  yield 
at  the  time  of  the  conveyance  a  clear  annual  income  exceeding  five 
hundred  dollars,  to  any  other  person  in  trust  to  receive  and  pay  the 
profits  annually  or  oftener  for  the  support  and  maintenance  of  any 
child,  grandchild  or  other  relation  of  the  grantor,  for  the  life  of 
such  child,  grandchild  or  other  relation,  with  remainder  as  the 
grantor  shall  provide;  and  the  jiroperty  so  conveyed  shall  not  be 
liable  for  or  subject  to  be  seized  or  taken  in  any  manner  for  the 
debts  of  such  child,  grandchild  or  other  relations,  whether  the  same 
be  contracted  or  incurred  before  or  after  the  grant. 

Code,  s.   1335;    1871-2,  c.  204,  s.   1. 

1589.  Titles  quieted.    An  action  may  be  brought  by  any  person 

against  another  who  claims  an  estate  or  interest  in  real  property 
adverse  to  him,  for  tlie  purpose  of  determining  such  adverse  claims. 
If  the  defendant  in  such  action  disclaim  in  his  answer  any  interest 
or  estate  in  the  property,  or  suffer  judgment  to  be  taken  against 
him  without  answer,  the  plaintiff  can  not  recover  costs.  In  any 
case  in  which  judgment  has  been  or  shall  be  docketed,  whether  such 
judgment  shall  be  in  favor  of  or  against  the  person  bringing  such 
action,  or  shall  be  claimed  by  him,  or  shall  affect  real  estate  claimed 
by  him,  or  whether  such  judgment  shall  be  in  favor  of  or  against 
the  person  against  whom  such  action  may  be  brought,  or  shall  be 
claimed  by  him,  or  shall  affect  real  estate  claimed  by  him,  the  lien 
of  said  judgment  shall  be  such  claim  of  an  estate  or  interest  in  real 
estate  as  is  contemplated  by  this  section. 
1893,  c.  6;   1903,  e.  763. 

1590.  Contingent  remainders  may  be  sold;  procedure;  proviso. 

In  all  cases  where  there  is  a  vested  interest  in  real  estate,  and  a  con- 
tingent remainder  over  to  persons  who  a:re  not  in  being,  or  when 
the  contingency  has  not  yet  happened  which  will  determine  who 
the  remaindermen  are,  there  may  be  a  sale  of  the  property  by  a  pro- 
ceeding in  the  sujaerior  court  at  term  time,  which  proceeding  shall 
be  conducted  in  the  manner  pointed  out  in  this  section:  Such  pro- 
ceedings may  be  commenced  by  summons  by  any  person  having  a 
vested  interest  in  the  land,  and  all  persons  in  esse  who  are  interested 
in  said  land,  shall  be  made  parties  defendant  and  served  with  sum- 
mons as  in  other  civil  actions,  and  upon  nonresidents  or  persons 
whoso  names  and  residences  are  unknown,  by  publication  as  now 
required  by  law  or  such  sen^ice  in  lieu  of  publication  as  now  provided 
by  laM-.  In  cases  where  the  remainder  will  or  may  go  to  minors  or 
jDersons  under  other  disabilities,  or  to  persons  not  in  being,  or  whose 
names  and  residences  are  not  known,  or  who  may  in  any  contingency 

483 


1590  ESTATES.  Ch.  33 

bpcome  interested  in  said  land,  but  be<'aii?e  of  such  contingency  can 
not  be'  ascertained,  the  judge  of  the  superior  court  shall,  after  due 
inijuirv  of  persons  who  are  in  no  way  interested  in  or  connected 
with  such  proceeding,  designate  and  aijjioint  some  discreet  pei-son 
as  giuirdian  ad  litem  to  represent  such  remaindermen,  iipim  whom 
summons  shall  be  served  as  provided  bv  law  for  other  guardians  ad 
litem,  and  it  shall  be  the  duty  of  such  guardian  ad  litem  to  defend 
such  actions,  and  when  counsel  is  needed  to  represent  him,  to  make 
this  known  to  the  judge,  who  shall  by  an  order  give  instructions  as 
to  the  emplo^^nent  of  counsel  and  the  pa."s^nent  of  fees.  The  court 
shall,  if  the  interest  of  all  parties  require  or  would  be  materially 
enhanced  by  it,  order  a  sale  of  such  pro]>erty  or  any  part  thereof 
for  reinvestment,  either  in  purchasing  or  in  inii)roving  real  estate 
less  expense  allowed  by  the  court  for  the  proceeding  and  sale,  and 
such  newly  acquired  or  im])roved  real  estate  shall  be  held  upon  thf 
same  contingencies  and  in  like  manner  as  was  the  ]n"o]ierty  ordered 
to  be  sold.  The  cotirt  may  authorize  the  loaning  of  such  money  sub- 
ject to  its  approval  until  such  time  when  it  can  be  reinvested  in  real 
estate,  such  time  not  to  exceed  two  years. 
1903,  c.  99;  1905,  c.  548. 

1591.   Sale  of  contingent  remainders  validated.   In  all  cases 

wherein  property  has  been  conveyed  by  deed,  or  devised  by  will,  upon 
contingent  remainder,  executory  devise  or  other  limitation  wherein  a 
judgment  of  a  superior  court  has  been  rendered  authorizing  the  sale 
of  such  property  discharged  of  such  contingent  remainder,  executory 
devise  or  other  limitation  in  actions  or  special  proceedings  wherein 
all  persons  in  being  who  would  have  taken  such  property  if  the  con- 
tingency had  then  happened  were  parties,  such  judgment  shall  be 
valid  and  binding  upon  the  parties  thereto  and  upon  all  other  ])ersons 
not  then  in  being:  Provided,  that  nothing  herein  contained  shall  be 
construed  to  impair  or  destroy  any  vested  right  or  estate. 
1905,  c.  9.3. 


1592  EVIDENCE—/.  Statutes.  Ch.  34 


CHAPTER  34. 
EVIDENCE. 

Sections. 
I.     Statutes.  1592—1595 

II.     Grants,  deeds  and  wills,  1596 — 1615 

III.  Official  writings,  1616—1617 

IV.  Records,  etc.,  other  states,  1618—1619 
V.     Counsel  and  physicians,                                       1620 — 1621 

VI.  Accounts,  1622—1625 

VII.  Life  tables,  •                              1626—1627 

VIII.  Competency  of  witnesses,  1628 — 1638 

IX.  Attendance  of  witness,  16.39—1644 

X.  Depositions,  1645 — 1655 

XI.  Writings,  production,  inspection,  1656 — 1658 

XII.  Confederate  currency,  1659 

I.     Statutes. 

1592.  How  proved.  All  statutes,  or  joint  resolutions,  passed  by 
the  general  assembly  may  be  read  in  evidence  from  the  printed  statute 
book. 

Code,  s.   1339;   R.  C,  e.  44,  s.  4;    1826,  c.  7. 

1593.  Martin's  collection;  copies  certified  by  secretary  of 

state.  Any  private  act  published  by  Francis  X.  Martin,  in  his  col- 
lection of  private  acts,  or  a  copy  of  any  act  of  the  general  assembly 
certified  b}'  the  secretary  of  state,  shall  be  received  in  evidence  io 
every  court. 

Code,  s.   1340;   R.  C,  c.  44,  s.  5;    1826,  c.  7,  s.  2. 

1594.  Laws  of  other  states  or  foreign  countries,  how  proved. 

A  printed  copy  of  a  statute,  or  other  written  law,  of  another  state, 
or  of  a  territory,  or  of  a  foreign  country,  or  a  printed  copy  of  a  procla- 
mation, edict,  decree  or  ordinance,  by  the  executive  thereof,  con- 
tained in  a  book  or  publication  purporting  or  proved  to  have  been 
published  by  the  authority  thereof,  or  proved  to  be  commonly  admit- 
ted as  evidence  of  the  existing  law,  in  the  judicial  tribmials  thereof, 
shall  be  evidence  of  the  statute,  law,  proclamation,  edict,  decree,  or 
ordinance.  The  unwritten,  or  common  law  of  another  state,  or  of  a 
territory,  or  of  a  foreign  country,  may  be  proved  as  a  fact  by  oral  evi- 
dence. The  books  of  the  reports  of  cases,  adjudged  in  the  courts 
thereof,  shall  also  be  admitted  as  evidence  of  the  unwritten  or 
common  law  thereof.  And  either  party  may  also  exhibit  a  copy 
of  the  law  of  such  state,  territory,  or  foreign  country,  duly  certified 


1594  EVIDENCE— 7.  Statutes.  Cb.   34 

by  tbe  secretary  of  state  of  this  state  as  baving  been  copied  from  a 
printed  volume  of  tbe  laws  of  snch  state,  territory  or  coimtry,  on 
file  in  tbe  state,  or  supreme  court,  library,  or  in  tbe  offices  of  the 
governor  or  secretary  of  state. 

Code,  s.   1338;   K.  C,  c.  44,  s.  3;    1823,  c.   1193,  ss.   1,  3;   C.  C.  P.,  s.  360. 
Note.     See  also,  s.  2503. 

1595.  Town  ordinances.  In  the  trial  of  appeals  from  mayors' 
courts,  when  tlie  offense  charged  is  the  violation  of  a  town  ordinance, 
a  copy  of  tbe  ordinance  alleged  to  have  been  violated,  certified  by 
the  mayor,  shall  be  prima  facie  evidence  of  tbe  existence  of  such 
ordinance. 

1899,  c.  277,  s.  2. 

II.      Grants.  Deeds  axd  Wili-s. 

1596.  Copies  certified  by  secretary  of  state.    Copies  of  the 

plots  and  certificates  of  survey,  or  their  accompanying  warrants, 
and  all  abstracts  of  grants,  which  may  be  filed  in  the  office  of  tbe 
secretary  of  state,  certified  by  him  as  true  copies,  shall  be  as  good 
evidence,  in  any  court,  as  the  original. 

Code,  s.  1341;  R.  C,  c.  44,  s.  6;  1822,  c.  1154. 

1597.  Copies  of  grants  certified  by  clerk  of  secretary  of  state 

validated.  All  copies  of  grants  heretofore  issued  from  tbe  office  of 
the  secretary  of  state,  duly  certified  under  tbe  great  seal  of  the  state, 
and  to  \vhicli  tbe  name  of  the  secretary  has  been  written  or  affixed 
by  the  clerk  of  the  said  secretary  of  state,  are  hereby  ratified  ami 
approved  and  declared  to  be  good  and  valid  copies  of  the  original 
grants  and  admissible  in  evidence  in  all  courts  of  this  state  when 
duly  registered  in  the  counties  in  which  the  land  lies ;  all  such  copies 
heretofore  registered  in  said  counties  are  hereby  declared  to  be  lawful 
and  regular  in  all  respects  as  if  tbe  same  had  been  signed  by  the  sec- 
retary of  state  in  person  and  duly  registered. 

1901,  c.  613. 

1598.  Copies  certified  by  register  of  deeds,  evidence,  when, 

A  copy  of  the  record  of  any  deed,  mortgage,  power  of  attorney,  or 
other  instnnnent  required  or  allowed  to  be  registered,  duly  authen- 
ticated by  the  certificate  and  official  seal  of  the  register  of  deeds  of 
the  county  where  tbe  original  or  duly  certified  copy  has  been  regis- 
tered, may  be  given  in  evidence  in  any  of  the  courts  of  the  state 
where  the  original  of  such  copy  would  be  admitted  as  evidence, 
although  the  party  offering  the  same  shall  be  entitled  to  the  posses- 
sion of  the  original,  and  shall  not  account  for  the  nonproduction 

480 


1598  EVIDENCE—//.   Grants,  Deeds,   Wills.  Ch.  34 

thereof,  unless  by  a  rule  or  order  of  the  court,  made  upon  affidavit 
suggesting  some  material  variance  from  the  original  in  such  registry- 
or  other  sufficient  grounds,  such  party  shall  have  been  previously 
required  to  produce  the  original,  in  which  case  the  same  shall  be  pro- 
duced or  its  absence  duly  accounted  for  according  to  the  course  and 
practice  of  the  court. 

Code,  s.   12.51;    1S!)3,  c.  119,  s.  2;   Pt.  C,  c.  .37,  s.   16;   1846,  c.  68,  s.  1. 

1599.  Copy  certified  may  be  registered  in  another  county  and 

given  in  evidence.  A  copy  from  the  office  of  the  register  of  deeds  of 
any  count}-  of  the  record  of  any  deed,  mortgage,  power  of  attorney 
or  other  instrument  required  or  allowed  to  be  registered,  duly  authen- 
ticated by  the  certificate  and  official  seal  of  the  register  of  deeds  of 
such  county,  may,  upon  presentation  to  the  register  of  deeds  of  any 
other  county,  be  registered  without  further  proof,  and  the  record 
thereof,  or  a  duly  certified  copy  of  the  same,  may  be  given  in  evidence 
in  any  court  in  the  state  where  the  original  of  such  copy  would  be 
admitted  as  evidence,  although  the  party  ofl:'ering  the  same  shall  be 
entitled  to  the  possession  of  the  original,  and  shall  not  account  for 
the  nonproduction  thereof,  unless  by  a  rule  or  order  of  the  court, 
made  iipon  affidavit  suggesting  some  material  variance  from  the 
original  in  such  registry  or  other  sufficient  grounds,  such  party  shall 
have  been  previously  required  to  produce  the  original,  in  which  case 
the  same  shall  be  produced  or  its  absence  duly  accounted  for  accord- 
ing to  the  coiirse  and  practice  of  the  court. 

Code,  s.  1253:   1893,  e.  119,  s.  3;  R.  C,  c.  37,  8.  16;   1846,  c.  68. 

Note.     See  Conveyances. 

For  record  of  surveys  as  evidence,  see  s.  1723. 

For  registration  of  certificate  of  survey  as  evidence,  see  s.  2663. 

See  also,  s.  988. 

1600.  Evidence  to  support  title  under  H.  E.  IVIcCulloch.  In  all 

actions  or  suits,  wherein  it  may  be  necessary  for  either  party  to 
prove  title,  by  virtue  of  a  grant  or  grants  made  by  the  king  of 
Great  Britain  or  Earl  Granville  to  Henry  McCulloch,  or  Henry 
Eustace  McCulloch,  it  shall  be  sufficient  for  suqh  party,  in  the  usual 
manner,  to  give  evidence  of  the  grant  or  conveyance  from  the  king 
of  Great  Britain  or  Earl  Granville  to  the  said  Henry  McCulloch, 
or  Henry  Eustace  ilcCulloch,  and  the  mesne  conveyances  there- 
after, without  giving  any  evidence  of  the  deed  or  deeds  of  release, 
relinquishment  or  confirmation  of  Earl  Granville  to  the  said  Henry 
McCulloch,  or  Henry  Eustace  ilcCulloch,  or  the  power  or  powers 
of  attorney  by  which  the  conveyances  from  the  said  Henry  McCul- 
loch, or  Henry  Eustace  McCulloch,  purport  to  have  been  made. 
Code,s.  1336;  R.  C,  c.  44,  s.  1;   1819,  e.  1021. 


IGOl  EVIDEXCE— //.   Grants,  Deeds.  Wills.  Cli.  34 

1601.  Grant  or  copy  from  proprietor,  sufficient  evidence  of  title 

under  him.  In  all  trials  whure  the  titles  of  either  ])laiiititf  or  ilefeml- 
ant  shall  be  derived  from  Henry  Eustace  McCulloch,  or  Henry 
McCnlloch,  out  of  their  tracts  number  one  and  three,  it  shall  not 
be  required  of  such  party  to  prodtice,  in  support  of  his  title,  either 
the  original  grant  from  the  crown  to  the  projn'ietors,  or  a  registered 
copy  thereof;  but  in  all  such  cases  the  grant  or  deed  executed  by 
stich  reputed  proprietors,  or  by  his  or  their  lawful  attorney,  or 
a  certified  copy  thereof,  shall  be  deemed  and  held  sufficient  jiroof 
of  the  title  of  such  proprietors,  in  the  same  manner  as  tliough  the 
original  grants  were  produced  in  evidence. 
Code,  s.  1337;  P..  C,  c.  44,  s.  2;   1807,  c.  724. 

1602.  Deeds  registered  and  lost,  registry  lost,  presumed  in 

due  form.  Whenever  it  shall  be  shown  in  any  judicial  proceeding, 
that  a  deed  or  conveyance  of  real  estate  has  been  lost  or  destroyed, 
and  that  the  same  had  been  registered,  and  that  the  register's  book 
containing  the  copy  has  been  destroyed  by  fire  or  other  accident, 
so  that  a  copy  thereof  can  not  be  had,  it  shall  be  presumed  and  held, 
unless  the  contents  be  shown  to  have  been  otherwise,  that  such  deed 
or  conveyance  transferred  an  estate  in  fee  simple,  if  the  grantor 
was  entitled  to  such  an  estate  at  the  time  of  conveyance;  and  that 
it  was  made  upon  sufiicient  consideration. 
Code,  s.  1348;  R.  C,  c.  44,  s.   14;   1854,  e.  17. 

1603.  Copy  of  will.  Copies  of  wills,  duly  certified  by  the  proper 
ofticer,  may  be  given  in  evidence  in  any  proceeding  wherein  the 
contents  of  the  will  may  be  competent  evidence. 

Code,   s.   2175;   R.   C,   c.   119,  s.  21;    1784,   c.   22.5,   s.   6. 

1604.  Written  instruments  proved  otherwise  than  by  attesting 
witnesses;  not  to  affect  registration.   It  shall  not  be  necessary  to 

prove  by  the  attesting  witness  instruments  to  the  validity  of  which 
the  attestation  is  not  requisite,  and  such  instruments  may  be  ]iroved 
by  admission  or  otherwise  as  if  there  had  been  no  attesting  witness 
thereto:  Provided,  that  this  section  shall  not  affect  the  method  and 
manner  of  proving  instruments  for  registration. 
1005,  0.  204. 

1605.  Evidence  to  fit  the  land  to  the  description.  In  all  actions 

for  the  possession  of  or  title  to  any  real  estate  jiand  testimony 
may  be  introduced  to  identify  the  land  sued  for,  and  fit  it  to  the 
description  contained  in  the  paper-writing  oflfered  as  evidence  of 
title  or  of  the  right  of  possession,  and  if  from  this  evidence  the  jury 
is  satisfied  that  the  land  in  question  is  the  identical  laiul  inteiuled 
to  be  conveyed  by  the  parties  to  such  jiapcr-writiiig,  then  such  jiaper- 


1605  EVIDENCE—//.   Grants,  Deeds.   Wills.  Ch.  34 

writing  shall  be  deemed  and  taken  to  be  snfficient  in  law  to  pass  such 
title  to  or  interest  in  such  land  as  it  purports  to  pass:  Provided, 
that  such  ijajjer-writing  is  in  all  other  respects  sufficient  to  pass 
such  title  or  interest. 

1891,  e.  405,  s.   1. 

Note.     For  vagueness  of  description  in  a  deed,  see  s.  948. 

1606.  Recitals  in  tax  deeds  in  Haywood  and  Henderson.  In  all 

legal  controversies  touching  lands  in  the  counties  of  Haywood  and 
Henderson,  in  which  either  party  shall  claim  title  under  any  sale 
for  taxes  alleged  to  have  been  clue  and  laid,  in  and  for  the  year 
one  thousand  seven  hundred  and  ninety-six,  or  any  preceding  year, 
the  recital  contained  in  the  deed  or  assurance,  made  by  the  sheriff 
or  <:>tlier  officer  conveying  or  assuring  the  same,  of  the  taxes  having 
been  laid  and  assessed,  and  of  the  same  having  remained  due  and 
unpaid,  shall  be  held  and  taken  to  be  prima  facie  evidence  of  tlic 
truth  of  each  and  every  of  the  matters  so  recited. 
Code,  s.  1346;   R.  C,  c.  44,  s.  11. 

1607.  Copies  of  wills  in  secretary  of  state's  office;  proviso. 

Copies  of  wills  filed  or  recorded  in  the  office  of  the  secretary  of  state, 
attested  by  the  secretary,  may  be  given  in  evidence  in  any  court, 
and  shall  be  taken  as  sufficient  proof  of  the  devise  of  real  estate, 
and  are  declared  good  and  effectual  to  pass  the  estate  therein  devised : 
Provided,  that  no  such  will  may  be  given  in  evidence  in  any  court 
nor  taken  as  sufficient  proof  of  the  devise  unless  a  certificate  of 
probate  appear  thereon. 

Code,  s.  2181;  R.  C,  e.  44,  s.  12;   1852,  e.  172;   1856-7,  e.  22. 

1608.  Copies  of  wills  recorded  in  wrong  counties.  Whereas,  by 

reason  .of  the  uncertainty  of  the  boundary  lines  of  many  of  the  coun- 
ties of  the  state,  wills  have  been  proved,  recorded  and  registered  in 
the  wrong  county,  whereby  titles  are  insecure ;  for  remedy  whereof : 
The  registry  or  duly  certified  copy  of  the  record  of  any  will,  duly 
recorded,  may  be  given  in  evidence  in  any  of  the  courts  of  tliis 
state. 

Code,  s.  2182;   1858-9,  c.  18. 

1609.  Proved  will  lost,  not  recorded,  copy  evidence.  When  any 

will  which  may  have  been  proved  and  ordered  to  be  recorded  shall 
have  been  destroyed  during  the  late  war,  before  it  was  recorded,  a 
copy  of  such  will,  so  entitled  to  be  admitted  to  record,  though  not 
certified  by  any  officer,  shall,  when  the  court  shall  be  satisfied  witli 
the  genuineness  thereof,  be  ordered  to  be  recorded,  and  shall  be 
received  in  evidence  whenever  the  original  or  duly  certified  exempli- 
fication would  be;  and  such  copies  may  be  proved  and  admitted  t) 


1G09  EVIDEXCE— 77.   Grants,  Deeds,  ^Yills.  Ch.   :]4: 

record  under  the  same  rules,  regulations  and  restrictions  as  are  pre- 
scribed in  the  chapter  entitled  Burnt  and  Lost  Records. 

Code,   s.   2183;    1866-7,  c.   127. 

1610.  Copies  of  grants  in  Burke.  Copies  of  grants  issued  by 
the  state  within  the  county  of  Burke  prior  to  the  destruction  of  the 
records  of  said  county  by  General  Stoneman  in  the  year  one  thousand 
eight  hundred  and  sixty-five,  shall  be  admitted  in  evidence  in  all 
actions  when  the  same  are  duly  registered ;  and  when  the  original 
grants  are  lost,  destroyed  or  can  not  be  found  after  due  search,  it  shall 
be  presumed  that  the  same  were  duly  registered  within  the  time  pre- 
scribed by  law,  as  provided  upon  the  face  of  original  gi-ant. 

1901,  c.  513. 

1611.  Copies  of  lost  records  in  Bladen.  Whereas,  the  most  of 
the  records  in  the  office  of  the  clerk  of  the  superior  court  of  l^laden 
county  were  damaged  by  fire,  and  are  in  such  a  mutilated  condition 
that  it  is  impossible  to  use  them,  and  several  of  them  being  of  almost 
daily  use,  especially  the  judgment  docket  and  will  books:  The  clerk, 
of  the  superior  court  of  Bladen  county  shall  transcribe  the  judgment 
docket  and  index  books  and  the  will  books  in  his  otHce,  and  all  other 
books  in  said  oifice  containing  records  made  since  the  year  one 
thousand  eight  hundred  and  sixty-eight,  and  the  records  so  tran- 
scribed shall  have  the  same  force  and  effect  as  the  original  records 
would  have,  and  shall  be  received  in  evidence  as  the  original  records 
and  be  prima  facie  evidence  of  their  correctness,  and  of  the  siiffi- 
ciency  of  their  probate,  though  the  probates  are  lost  and  arc  not 
transcribed. 

189.5,  c.   415;    190.3,  c.   65. 

1612.  Copies  of  records  from  Tyrrell.  Copies  of  records. of  the 

county  of  Tyrrell  lietween  the  years  one  thoxisand  seven  hundred  and 
thirty-five  and  one  thousand  seven  hundred  and  ninety-nine,  when 
copied  in  a  book  and  certified  txi  by  the  clerk  of  the  superior  court  of 
Tyrrell  county  as  to  the  records  of  his  office  and  by  the  register  of 
deeds  as  to  the  records  of  his  office,  and  deposited  in  their  respective 
offices  in  Washington  county,  shall  be  treated  in  all  respects  as  origi- 
nal records  and  received  as  evidence  in  all  courts  of  Washington 
county. 

190.3,  c.  199. 

1613.  Copies  of  grants  in  Moore.  Cojnes  of  grants  for  land  situ- 
ated in  Moore  county  and  the  counties  of  which  Moore  was  a  part, 
entered  in  a  book,  and  the  book  being  certified  under  the  seal  of 
the  secretary  of  state,  shall  have  the  force  and  effect  of  the  origi- 
nals and  be  evidence  in  all  courts. 

1903,  c.  214. 

490 


1(3U  EVIDENCE— 77.   Chmits,  Deeds,  Wills.  Ch.  ?A 

1614.  Wills  in  Haywood.    All  wills  recorded  by  the  clerk  of  the 

sujieriiii-  court  of  Haywood  county,  under  and  by  virtue  of  chapter 
eight  of  the  laws  of  one  thousand  eight  hundred  and  eighty-five, 
shall  be  deemed  and  held  to  have  been  duly  probated  and  recorded, 
subject  to  the  right  of  any  person  interested  to  show  by  competent 
proof  that  said  will  has  never  been  proved  and  recorded. 
1885,  c.  8. 

1615.  Records  in  Anson  county.  The  copies  of  the  deeds  and  deed 
books  and  of  the  wills  and  will  books  made  in  Anson  county  under  the 
act  of  March  second,  one  thousand  nine  hundred  and  five,  shall  have 
the  same  force  and  effect  as  the  original  deeds  and  deed  books  copied 
and  as  the  original  wills  and  will  books  copied,  and  shall  take  the 
place  of  said  original  deeds  and  deed  books  and  wills  and  will  books 
as  evidence  in  all  court  procedure;  and  wherever  said  deed  books  or 
will  books  are  ordered  or  directed  to  be  prodiTced  in  court  by  subpoena 
or  other  order  of  court,  the  copies  made  under  such  act  shall  be  pro- 
duced, iinless  the  court  shall  specially  order  the  production  of  the 
original  books,  and  the  copies  so  produced  in  court  shall  have  the 
same  validity  and  effect  and  be  lased  for  the  same  purposes,  with  the 
same  effect  as  the  original  books. 

1905,  c.  663,  s.  3. 

III.      Official  WraxiNCiS. 

1616.  Copies  of  official  writings.  Copies  of  all  official  bonds, 
writings,  pajiers,  or  documents,  recorded  or  filed  as  records  in  any 
court,  or  public  office,  or  lodged  in  the  office  of  the  governor,  treas- 
urer, auditor,  secretary  of  state,  attorney  general  or  adjutant  gen- 
eral, shall  be  as  competent  evidence  as  the  originals,  when  certified 
by  the  keeper  of  such  records  or  writings  under  the  seal  of  his 
office,  when  there  is  such  seal,  or  under  his  hand  when  there  is  no 
such  seal,  unless  the  court  shall  order  the  production  of  the  original. 
Copies  of  the  records  of  the  board  of  county  commissioners  shall 
be  evidence  when  certified  by  the  clerk  of  the  board  under  his  hand 
and  seal  of  the  county. 

Code,  ss.  715,  1342;  R.  C  c.  44,  s.  8;  1792,  c.  368,  s.  11;  1871-2,  c.  91;  1868-9, 
e.  20,  s.  21. 

1617.  Copies  from  public  records  of  the  state  or  United  States, 
evidence;  how  authenticated.  All  copies  of  bonds,  contracts  or 

other  papers  relating  to  or  connected  with  the  settlement  of  any 
account  or  any  part  thereof  between  the  United  States  and  an  indi- 
vidual, or  extracts  therefrom  when  complete  on  any  one  subject,  or 
copies  from  the  books  or  papers  on  file,  or  records  of  any  public 
.office  of  the  state  or  the  United  States,  shall  be  received  in  evidence 


1617  EVIDEXCE— ///.   Official  Writings.  Ch.  ?A 

and  entitled  to  full  faith  and  credit  iu  any  of  the  courts  of  this 
state  when  certified  to  by  the  chief  ofiicer  in  said  office  or  depart- 
ment to  be  true  copies  and  authenticated  under  the  seal  of  said  office 
or  department. 

1891,  c.  501. 


Note.     Pleadings  incompetent  in  criminal  prosecutions,  see  s.  49.'!. 
IV.     Recokds,  ktc,  Other  States. 

1618.  Records  of  administration  and  letters  testamentary  in 

other  states,  how  certified.  When  letters  testamentary  or  of  admin- 
istration on  the  goods  and  chattels  of  any  person  deceased,  being  an 
inhabitant  in  another  state  or  territory,  have  been  granted,  or  a 
return  or  inventory  of  the  estate  has  been  made,  a  cojiy  of  the  record 
of  administration  or  of  the  letters  testamentary,  and  a  copy  of  an 
inventory  or  return  of  the  effects  of  the  deceased,  after  the  same  has 
been  gi-anted  or  made,  agreeable  to  the  laws  of  the  state  where  the 
same  has  been  done,  being  properly  certified,  either  according  to 
the  act  of  congress  or  by  the  proper  officer  of  the  said  state  or  terri- 
tory, shall  be  allowed  as  evidence. 

Code,  s.  134.3;  E.  C,  c.  44,  s.  7;  1834,  c.  4;  U.  S.  Rev.  Stat.,  ss.  905,  906. 

1619.  Wills  or  deeds  in  other  states,  how  proven.    In  cases 

where  inhabitants  of  other  states  or  territories,  by  will  or  deed,  devise 
or  convey  property  situated  in  this  state,  and  the  original  will  or  deed 
can  not  be  obtained  for  registration  in  the  county  where  the  land 
lies,  or  where  the  jirojierty  shall  be  in  dispute,  a  co])y  of  said  will 
or  deed  (after  the  same  has  been  proved  and  registered  or  deposited, 
agreeable  to  the  laws  of  the  state  where  the  person  died  or  made 
the  same)  being  proj^erly  certified,  either  according  to  the  act  of 
congress,  or  by  the  proper  officer  of  the  said  state  or  territory,  sliall 
be  read  as  evidence. 

Code.  s.  1344;  R.  C,  e.  44,  s.  9;   1802,  c.  623. 

Note.     See  also,  ss.  3130,  3131. 

V.        COUNSEI.    AXD    PlIVSICIAXS. 

1620.  Fraud  on  the  state,  counsel  must  testify;  proviso.   In 

cases  where  fraud  upon  the  state  is  charged  it  shall  not  be  a  suffi- 
cient cause  to  excuse  any  one  from  im]>arting  any  evidence  or  infor- 
mation legally  required  of  him,  because  he  came  into  the  possession 
of  such  evidence  or  information  by  his  ]iosition  as  counsel  or  attorney 
before  the  consumn«ati<in  i)f  such  fraud,  and  any  jierson  refusing 
fur  such  cause  to  answer  any  (|uesti(in    when  legally  re(|nired  so  to 


1620  EVIDENCE— F.   Counsel  and  Phijsirians.  Ch.   34 

do  shall  be  guilty  of  contempt,  and  punished  at  the  discretion  of  the 
court  or  other  body  demanding  such  information :  Provided,  that  it 
shall  not  be  competent  to  introduce  any  admissions  thus  made  on 
the  trial  of  any  persons  making  the  same. 
Code.  s.  1.340;    1874.5,  c.  iU. 

1621.  Privilege  of  attending  physicians  and  surgeons.  Xo  per- 
son, duly  authorized  to  practice  physic  or  surgery,  shall  be  required 
to  disclose  any  information  which  he  may  have  acquired  in  attend- 
ing a  patient  in  a  professional  character,  and  which  information 
was  necessary  to  enable  him  to  prescribe  for  such  patient  as  a  physi- 
cian, or  to  do  any  act  for  him  as  a  surgeon:  Provided,  that  the  pre- 
siding judge  of  a  superior  court  may  compel  such  disclosure,  if  in  liis 
opinion  the  same  is  necessary  to  a  ]iroper  administration  of  justice. 

1885,  c.  159. 

VI.     Accounts. 

1622.  Book  accounts  under  sixty  dollars,  and  within  two  years. 

When  any  pcrsnn  shall  bring  an  action  upon  a  cimtract,  nr  shall 
plead,  or  give  notice  of,  a  .setoff  or  counterclaim  for  goods,  wares 
and  merchandise  by  him  sold  and  delivered,  or  for  work  done  and 
performed,  he  shall  file  his  account  with  his  complaint,  or  with  his 
plea  or  notice  of  setoff  or  coxinterclaim,  and  if  u]5on  the  trial  of  the 
issue,  or  executing  a  writ  of  inquiry  of  damages  in  such  action,  he 
shall  declare  upon  his  oath  that  the  matter  in  dispute  is  a  book 
account,  and  that  he  hath  no  means  to  prove  the  delivery  of  any  of 
the  articles  which  he  then  shall  propose  to  prove  by  himself  but  by 
this  book ;  in  that  case  such  book  may  be  given  in  evidence,  if  he 
shall  make  out  by  his  own  oath  that  it  doth  contain  a  true  account 
of  all  the  dealings,  or  the  last  settlement  of  accounts  between  him- 
self and  the  opposing  j^arty,  and  that  all  the  articles  therein  con- 
tained, and  by  him  so  proved  were  bona  fide  delivered,  and  that  he 
hath  given  the  opposing  party  all  just  credits;  and  such  book  and 
oath  shall  be  received  as  evidence  for  the  several  articles  so  proved 
to  be  delivered  within  two  years  next  before^  the  commencement  of 
the  action,  but  not  for  any  article  of  a  longer  standing,  nor  for  any 
greater  amount  than  sixty  dollars. 

Code,  s.  591;  R.  C,  c.  15,  s.  1;   1756,  c.  57,  ss.  2,  6,  7;  C.  C.  P..  s.  343a. 

1623.  Book  accounts  proved  by  personal  representative.   In 

all  actions  wliore  executors  and  administratcn-s  arc  ])artics,  such  book 
account  for  all  articles  delivered  within  two  years  prex'ious  to  the 
death  of  the  deceased  may  be  proved  imder  the  like  circumstances, 
rules  and  conditions ;  and  in  such  case,  the  executor  or  administra- 
tor may  prove  by  himself  that  he  found  the   account  so  stated  on 


1023  EVIDEXCE— TV.  Accounts.  Ch.   3-t 

the  books  of  the  deceased ;  that  there  are  no  witnesses,  to  his  knowl- 
edge, cajjable  of  proving  the  delivery  of  the  articles  which  he  shall 
propose  to  prove  by  said  book,  and  that  he  believes  the  same  to  be 
just,  and  doth  not  know  of  any  other  or  further  credit  to  be  given 
than  what  is  therein  mentioned :  Provided,  that  if  two  years  shall 
not  liave  elapsed  previous  to  the  death  of  the  deceased,  the  executor 
or  administrator  may  prove  the  said  book  account,  if  the  suit  shall 
be  commenced  within  three  years  from  the  deliveiy  of  the  articles : 
Provided  further,  that  whenever  by  the  aforesaid  proviso  the  time 
of  i^roving  a  book  account  in  manner  aforesaid  is  enlarged  as  to 
the  one  party,  to  the  same  extent  shall  be  enlarged  the  time  as  to 
the  other  party. 

Code,  s.  592;  E.  C,  e.  15,  s.  2;  1756,  c.  57,  s.  2;  1796,  c.  465;  C.  C.  P.,  9.  343b. 

1624.  Copies  of  book  accounts  evidence,  when.  A  copy  from 

the  book  of  accounts  proved  in  manner  above  directed  may  be  given 
in  evidence  in  any  such  action  or  setoff  as  afoi-esaid,  and  shall  be  as 
available  as  if  such  book  had  been  produced,  unless  the  party  oppos- 
ing such  proof  shall  give  notice  to  the  adverse  party  or  his  attorney, 
at  the  joining  of  the  issue,  or  ten  days  before  the  trial,  that  he  will 
require  the  book  to  be  produced  at  the  trial ;  and  in  that  case  no  such 
copy  shall  be  admitted  as  evidence. 

Code,  s.  593;  R.  C,  c.  15,  s.  3;   1756,  c.  57,  s.  3;  C.  C.  P.,  s.  343c. 

1625.  Itemized  accounts  evidence,  when.  In  any  actions  insti- 
tuted in  any  court  of  this  state  upon  an  account  for  goods  sold  and 
delivered,  a  verified  itemized  statement  of  such  account  shall  be 
received  in  evidence,  and  shall  l)e  deemed  prima  facie  evidence  of 
its  correctness. 

1897,  c.  480. 

VII.     Life  Tables. 

1626.  Mortuary  tables  evidence.  Whenever  it  shall  be  necessary 
to  establish  the  expeetanev  of  continued  life  of  any  person  from  any 
period  of  such  person's  life,  whether  he  be  living  at  the  time  or  not, 
the  table  hereto  appended  shall  be  received  in  all  courts  and  by  all 
per.sons  having  power  to  determine  litigation  as  evidence,  with  other 
evidence  as  to  the  health,  constitution  and  habits  of  such  person, 
of  such  expectancy  represented  by  the  figures  in  the  columns  headed 
by  the  words  "completed  age"  and  '"expectation"  respectively: 


r 


1626  EVIDElSrCE— 77/.  Life  Tables.  Cli.  34 

Completed  Age.  Expectation.  i        Completed  Age.                         Expectation. 

10 43.7  53 18.8 

11 48.1  54 IS.l 

12 47.4  55 17.-1 

13 46.8  56 10.7 

14 46.2  57 16.1 

15 45.5  58 15.4 

16 44.9  59 14.7 

17 44.2  60 14.1 

IS   43.5  61  13.5 

19   42.9  62  12.9 

20 42.2  63 12. .3 

21 41.5  64 11.7 

22  40.9  65  11.1 

23 40.2  66 10.5 

24 39.5  67 10.0 

25 38.8  68  9.5 

26 38.1  69  9.0 

27 37.4  70 8.5 

28 36.7  ^     71 8.0 

29 36.0  72 7.6 

30 35.3  73 7.1 

31   34.6  74 6.7 

32 33.9  75 6.3 

33 33.2  76 5.9 

34 32.5  77 5.5 

35 31.8  78 5.1 

36 31.1  79 4.8 

37 30.4  80 4.4 

38 29.6  I     81 4.1 

39 28.9  82  3.7 

40 28.2  83  3.4 

41 27.5  84 3.1 

42 26.7  1     85 2.8 

43 26.0  I     86  2.5 

44 25.3  1     87 2.2 

45 24.5  88 1.9 

46 23.8  i     89  1.7 

47 23.1  '     90 1.4 

48 22.4  '.      91  1.2 

49 21.6  ,   92  1.0 

50 20.9  I     93 8 

51 20.2  I   94 6 

52 19.5  I     95 5 

Code,  s.  1352;  1883,  e.  225. 


EVIDENCE— T//.  Life   Tables. 


Ch.  :54 


1627.  Present  worth  of  annuities.  Whenever  it  shall  be  neces- 
sary to  establisli  the  present  worth  or  cash  value  of  an  annuity  to  a 
person,  payable  annually  (lurinji  his  life,  such  present  worth  or  cash 
value  may  be  ascertained  by  the  use  of  the  following  table  in  connec- 
tion with  the  mortuary  tables  established  by  law,  the  tirst  cohunn  rep- 
resenting the  number  of  years  the  annuity  is  to  run  and  the  second 
eoliunn  representing  the  present  cash  value  of  an  annuity  of  one  dol- 
lar for  such  number  of  years,  respectively : 


Cash  value  of 


s 

9 
10 
11 
12 

i;} 

14 
15 

Ki 
17 

IS 

11) 
■2i) 
21 


21 


913 
S33 
673 
465 
212 
917 
582 
209 
801 
360 
886 
383 
852 
295 
712 
106 
477 
827 
158 
469 
764 
042 
304 
550 
783 


26 
27 
2S 
29 
30 
31 


33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
4S 
49 
50 


Cash  value  of 

the  annuity 

of  $1. 


003 
211 
406 

591 
765 
929 
084 
230 
368 
498 
621 
737 
846 
949 
046 
135 
219 
299 
374 
445 
514 
579 
641 
699 
754 


The  ])resent  cash  value  of  the  annuity  for  a  fraction  of  a  year  may 

be  ascertained  as  follows :    ]\rulti]ily  the  difference  between  the  cash 

value  of  the  annuities  for  tlie  preceding  and  succeeding  full  years  by 

the  fraction  of  the  year  in  decimals  and  add  the  sum  to  the  present 

cash  value  for  the  preceding  full  year.      When  a  person  is  entitled  to 

the  use  of  a  sum  of  money  for  life,  or  for  a  given  time,  the  interest 

thei'eon  for  one  year  may  be  considered  as  an  annuity  and  the  jircsent 

cash  value  be  ascertained  as  lierein  provided. 

1905,  e.  .347. 

400 


1C2S        EVIDENCE— TT//.  Competency  of  Witnesses.        Cli.  :U 
VIII.      Competency  of  Witnesses. 

1628.  Not  incapacitated  by  interest  or  crime.  No  person  offered 

as  a  witness  sliall  be  excluded  by  reason  of  incapacity  fi'om  interest 
or  crime,  from  giving  evidence  eitber  in  person  or  by  dei3osition, 
according  to  the  practice  of  the  court,  on  the  trial  of  any  issue 
joined,  or  of  any  matter  or  question,  or  on  any  inquiry  arising  in 
any  suit  or  proceeding,  civil  or  criminal,  in  any  court,  or  before  any 
judge,  justice,  jury  or  other  person  having,  by  law,  authority  to  hear, 
receive  and  examine  evidence ;  and  every  person  so  offered  shall 
be  admitted  to  give  evidence,  notwithstanding  such  person  may 
or  shall  have  an  interest  in  the  matter  in  question,  or  in  the  event 
of  the  trial  of  the  issue,  or  of  the  siiit  or  other  proceeding  in  which 
he  is  offered  as  a  witness.  This  section  shall  not  be  construed  to 
apply  to  attesting  witnesses  to  wills. 

Code,  ss.   589,   1350;   C.  C.  P.,  c.  342;    1866,  c.  43,  ss.   1,  4;    1869-70,  c.   177; 
1871-2,  e.  4. 

1629.  Not  excluded  by  interest.    No  person  offered  as  a  witness 
sliall  !)('  excluded  by  reason  of  his  interest  in  the  event  of  the  action. 

1630.  Evidence  of  parties  admissible;  exceptions.  On  the  trial 

of  any  issue,  or  of  any  matter  or  question,  or  on  any  inquiry  arising 
in  any  action,  suit  or  other  proceeding  in  court,  or  laefore  any  judge, 
justice,  jury  or  other  person  having,  by  law,  authority  to  hear  and 
examine  evidence,  the  parties  themselves  and  the  person  in  whose 
behalf  any  suit  or  other  proceeding  may  be  brought  or  defended, 
shall,  except  as  hereinafter  provided,  be  competent  and  compellable 
to  give  evidence,  either  viva  voce,  or  by  deposition,  according  to  the 
practice  of  the  court,  in  behalf  of  either  or  any  of  the  parties  to 
said  action,  suit  or  other  proceeding.  Nothing  in  this  section  shall 
be  construed  to  apply  to  any  action  or  other  proceeding  in  any  court 
instituted  in  consequence  of  adultery,  or  to  any  action  for  criminal 
conversation. 

Code,  s.  1351 ;   1800,  c.  43,  ss.  2,  3. 

1631.  When  one  party  to  transaction  is  dead.  Upon  the  trial 

of  an  action,  or  the  hearing  upon  the  merits  i>f  a  special  proceeding, 
a  party  or  a  person  interested  in  the  event,  or  a  person  from,  through 
or  under  whom  such  a  party  or  interested  person  derives  his  interest 
or  title  by  assigTiment  or  otherwise,  shall  not  be  examined  as  a  wit- 
ness in  his  own  behalf  or  interest,  or  in  behalf  of  the  party  suc- 
ceeding to  his  title  or  interest  against  the  executor,  administrator 
or  survivor  of  a  deceased  person,  or  the  committee  of  a  lunatic,  or 
a  person  deriving  his  title  or  interest  from,  through  or  under  a 
deceased  person  or  lunatic,  by  assignment  or  otherwise,  concerning 

Roy.  Vol.  1—28  407 


1631        EVIDENCE— T///.   Competency  of  ^yUnesscs.        Cli.  34 

a  personal  transaction  or  communication  between  the  witness  and 
the  deceased  person  or  Innatic ;  except  where  the  executor,  adminis- 
trator, survivor,  committee  or  person  so  deriving  title  or  interest  is 
examined  in  iiis  own  behalf,  or  the  testimony  of  the  lunatic  or 
deceased  j)erson  is  given  in  evidence  concerning  the  same  transaction 
or  communication. 

Code,  s.  590;  C.  C.  P.,  s.  343. 

1632.  Executors  may  testify  as  to  estate  in  their  hands,  when; 

proviso.  In  all  actions  now  pending  or  which  may  be  hereafter  insti- 
tuted upon  judgments  rendered  before  the  first  day  of  August,  one 
thousand  eight  hundred  and  sixty-eight,  or  upon  any  bond  or  promis- 
sory note  under  seal  executed  in'ior  to  said  date,  wherein  a  reference 
has  been  or  may  be  ordered  by  the  court  to  ascertain  the  condition 
or  state  of  the  assets  belonging  to  the  estate  of  any  deceased  debtor 
in  the  hands  of  his  administrator  or  executor,  who  is  or  may  be 
defendant  in  such  actions,  it  shall  be  competent  for  the  defendant 
administrator  or  executor  of  such  deceased  debtor  to  testify  and 
be  examined  as  a  witness  in  his  own  behalf  concerning  his  adminis- 
tration upon  the  estate  of  his  intestate  or  decedent.  When  in  such 
cases  the  defendant  administrator  or  executor  shall  have  testified  or 
been  examined  as  a  witness  in  his  own  behalf,  it  shall  also  be  com- 
petent for  the  i^laintiff  to  testify  and  be  examined  in  the  same  in 
regard  to  such  administration. 

1885,  e.   361. 

1633.  Party  not  competent,  when.  Xo  person  who  is  or  shall  be 

a  party  to  an  action  founded  on  a  judgment  rendered  before  the  first 
day  of  Augiist,  one  thousand  eight  hundred  and  sixty-eight,  or  on  any 
bond  executed  prior  to  said  date,  or  the  assignor,  endorser  or  any  per- 
son who  has  at  the  time  of  the  trial,  or  ever  has  had  any  interest  in 
such  judgment  or  bond,  shall  be  a  competent  witness  on  the  trial  of 
such  action,  but  this  section  shall  not  apply  to  the  trial  of  any  action 
commenced  before  the  first  day  of  August,  one  thousand  eight  hun- 
dred and  sixty-eight,  nor  to  the  trial  of  any  action  in  which  the  defend- 
ant therein  relies  upon  the  jilea  of  ])anuent  in  fact,  or  ])leads  a  coun- 
terclaim and  also  introduces  himself  as  a  witness  to  establish  the  truth 
of  such  Jjlea,  but  in  all  such  cases  the  rules  of  evidence  as  contained  in 
this  Revisal  shall  prevail. 

Code,  s.  580;  C.  C.  P.,  s.  333:   1879,  c.  183;   1883,  c.  310,  ss.  1,  2. 

1634.  Defendant  competent  in  criminal  actions;  husband  or 

wife  competent  for  defendant,  in  the  trial  of  all  indictments,  com- 
plaints or  other  ])roceedings  against  persons  charged  with  the  com- 
mission of  crimes,  offenses  and  misdemeanors,  the  person  so  charged 
.shall  at  his  own  request,  but  not  otherwise,  bo  a  couijietcnt  witness, 


1634        EVIDENCE— T'///.   Competency  of  Witnesses.        Ch.   34 

and  his  failure  to  make  such  request  shall  not  create  any  presump- 
tion against  him.  The  husband,  or  wife  of  the  defendant,  in  all 
criminal  actions  or  proceedings,  shall  be  a  competent  witness  for 
the  defendant;  but  the  failure  of  such  witness  to  be  examined  shall 
not  be  used  to  the  prejudice  of  the  defense.  But  every  such  person 
examined  as  a  witness  shall  be  subject  to  be  cross-examined  as  are 
other  witnesses. 

Code,  s.  1353;   1881,  c.  89,  s.  3;   1881,  c.  110,  ss.  2,  3. 

1635.  Defendant  in  criminal  actions  not  compellable  to  give 
evidence  against  himself;  nor  husband  or  wife  against  the  other. 

ISTothing  in  this  chapter,  except  as  provided  in  the  preceding  sec- 
tion, shall  render  any  person,  who  in  any  criniinal  proceeding  is 
charged  with  the  commission  of  a  criminal  offense  competent,  or 
compellable,  to  give  evidence  against  himself,  nor  shall  render  any 
person  compellable  to  answer  any  question  tending  to  criminate  him- 
self, nor  shall  in  any  criminal  proceeding  render  any  husband  com- 
petent or  compellable  to  give  evidence  against  his  wife,  nor  any  wife 
competent  or  compellable  to  give  evidence  against  her  husband :  Pro- 
vided, that  in  all  criminal  prosecutions  of  a  husband  for  an  assault 
and  battery  ui^on  the  person  of  his  wife,  or  for  abandoning  his  wife, 
or  for  neglecting  to  provide  for  her  support,  it  shall  be  lawful  to 
examine  the  wife  in  behalf  of  the  state  against  the  said  husband. 
Code,  s.  1354;   1856-7,  c.  23;   1866,  c.  43,  s.  3;    1868-9,  c.  209,  s.  4. 

1636.  Husband  and  wife  witnesses.  In  any  trial  or  inquiry  in 
any  suit,  action  or  proceeding  in  any  court,  or  before  any  j^erson 
having,  by  law  or  consent  of  parties,  authority  to  examine  witnesses 
or  hear  evidence,  the  husband  or  wife  of  any  party  thereto,  or  of 
any  person  in  whose  behalf  any  such  suit,  action  or  proceeding  is 
brought,  prosecuted,  opposed  or  defended,  shall,  except  as  herein 
stated,  be  competent  and  compellable  to  give  evidence,  as  any  other 
witness  on  behalf  of  any  party  to  such  suit,  action  or  proceed- 
ing. Nothing  herein  shall  render  any  husband  or  wife  competent 
or  compellable  to  give  evidence  for  or  against  the  other,  in  any  crimi- 
nal action  or  proceeding  (except  to  prove  the  fact  of  marriage  in 
case  of  bigamy),  or  in  any  action  or  proceeding  in  consequence  of 
adultery,  or  in  any  action  or  proceeding  for  divorce  on  account  of 
adultery  (except  to  prove  the  fact  of  marriage),  or  in  any  action 
or  proceeding  for  or  on  account  of  criminal  conversation.  No  hus- 
band or  wife  shall  lie  compellable  to  disclose  any  confidential  coni- 
nmnication  made  by  one  to  the  other  dviring  their  marriage. 

Code,  s.  588;  C.  C.  P.,  s.  341;   1860,  c.  40,  s.  2." 

1637.  Persons  testifying  in  gambling  not  prosecuted.  No  per- 
son shall  be  excused,  on  any  ]ir(isecution,  from  testifying  touching 


1637        EVIDEXCE — VIII.   Competency  of  'Witnesses.        Ch.  3-i 

any  unlawful  gaming  dine  by  himself  (jr  utliers ;  but  no  discovery, 
made  by  the  witness  upon  such  examination,  shall  be  used  against 
him,  in  any  penal  or  criminal  prosecution,  and  he  shall  be  altogether 
pardoned  of  the  offense  so  done,  or  participated  in  by  liim. 

Code,  s.   1215;   R.  C,  c.  35,  s.  50. 
Xote.     See  s.  1688. 

1638.  Lynching,  witness  must  testify;  pardoned.  In  all  investi- 
gations before  a  justice  of  the  jieaee,  ciir.iner,  judge,  grand  jury,  or 
courts  and  jury,  on  the  trial  of  a  cause  for  lynching,  no  ]ierson 
shall  be  excused  from  testifying  touching  his  knowledge  or  infor- 
mation in  regard  to  the  offense  being  investigated,  upon  the  ground 
that  his  answer  might  tend  to  subject  him  to  prosecution,  pains  or 
penalties,  or  that  his  evidence  might  tend  to  criminate  himself,  but 
no  discovery  made  by  such  witness  vipon  any  such  examination  shall 
be  used  against  him  in  any  coiirt  or  in  any  penal  or  criminal  prose- 
cution, and  he  shall  when  so  examined  as  a  witness  for  the  state  be 
altogether  pardoned  of  any  and  all  participation  in  any  crime  of 
lynching  concerning  which  he  is  required  to  testify. 

1893,  c.  461,  s.  5. 

IX.     Attendance  of  Witness. 

1639.  How  procured.  In  obtaining  the  testimony  of  witnesses 
in  causes  depending  in  the  superior,  criminal  and  inferior  courts, 
the  following  rules  shall  be  observed  in  practice,  to-wit: 

In  suits  where  witnesses  are  to  ajipear  at  any  court,  the  clerk 
at  the  instance  of  a  party  shall  issiie  a  subpoena,  directed  to  the 
sheriff  or  other  officer  of  the  county  where  such  witnesses  reside, 
naming  the  time  and  place  for  their  apj^earance,  the  names  of 
the  parties  to  the  suit  wherein  the  testimony  is  to  be  given,  and 
the  party  at  whose  instance  they  are  summoned.  Every  subpnena 
made  returnable  immediately,  shall  be  issued  only  in  term  time,  and 
shall  be  personally  served  on  the  witness  therein  named.  A  copy 
of  every  subpoena  issued  by  the  clerk  in  vacation,  in  case  any  wit- 
ness therein  named  is  not  to  be  found,  may  be  left  at  his  usual  place 
of  residence ;  and  such  copy  certified  by  the  sheriff  or  other  officer, 
and  left  as  aforesaid,  shall  be  deemed  a  legal  summons,  and  the 
person  therein  named  shall  be  bound  to  api^car  in  tlie  same  manner 
as  if  personally  summoned. 

Code,  s.  1355;  R.  C,  c.  31,  s.  59;  1777,  c.  115,  s.  36. 

Note.     For  subptena  issued  by  party  or  attorney,  see  s.  884. 

1640.  How  procured  before  jury  of  view,  referee  or  commis- 
sioners. In  all  cases  not  otherwise  jirdvided  for,  when  witnesses 
are  renuired  to  attend  anv  cnurt,  (Mininiissicin,  referee,  order  of  sur- 


KUO  EVTDEXCE— /A'.  Attendance  of  ]yifness.  Cb.  34 

vey,  or  jury  of  view,  a  siTiumons  shall  be  issued  by  the  clerk  of  the 
court,  at  the  request  of  either  party,  naming  the  day  and  place 
when  and  where  they  are  to  appear,  the  names  of  the  parties  to  the 
suit,  and  in  whose  behalf  summoned. 

Code,  s.   1366;   R.  C,  e.  31,  s.  68;    1805,  c.  685,  ss.   1,  2. 

1641.  When  subpoena  duces  tecum  may  issue.  In  all  causes 

depending  in  any  court,  in  which  the  production  of  an  original 
paper,  lodged  in  any  of  the  public  offices  of  the  state,  or  in  any 
office  of  any  court,  shall  become  necessary,  the  court  may  issue  the 
process  of  subpoena  duces  tecum,  requiring  such  persons  who  hold 
said  offices  to  attend  the  court  with  such  original  paper,  in  like  man- 
ner and  under  the  san'ie  penalties  as  witnesses  are  required  in  cases 
of  subposna  to  testify. 

Code,  s.  1372;  K.  C,  c.  31,  s.  81;  1797,  c.  476. 

1642.  Cause  removed,  subpoenas  and  commissions  to  take 

depositions  issued  from  either  county.  When  any  cause  shall  be 
renioA'ed  from  the  superior  court  of  one  county  to  that  of.  another, 
after  the  order  of  removal,  depositions  may  be  taken  in  the  cause,  and 
subpoenas  for  the  attendance  of  witnesses  and  commissions  to  take 
depositions  may  issue  from  either  of  the  said  courts,  under  the  same 
rules  as  if  the  cause  had  been  originally  commenced  in  the  court 
from  which  the  subpoenas  or  commissions  issued. 
Code,  s.  1371;  R.  C,  c.  31,  s.  72;  1810,  c.  787;   1832,  c.  8. 

1643.  Witness  to  attend  until  discharged;  penalty  nonattend- 

ance,  how  paid;  judgment  nisi  only.  Every  witness,  being  sum- 
moned to  ajjpear  in  any  of  the  said  courts,  in  manner  before  directed, 
shall  appear  accordingly,  and  continue  to  attend  from  term  to  term 
until  discharged,  when  summoned  in  a  civil  action  or  special  proceed- 
ing, by  the  court  or  the  party  at  whose  instance  such  witness  shall  be 
summoned,  or  when  summoned  in  a  criminal  prosecution,  until  dis- 
charged by  the  court,  the  prosecuting  otBcer,  or  the  party  at  whose 
instance  he  was  summoned ;  and  in  default  thereof  shall  forfeit  and 
pay,  in  civil  actions  or  special  proceedings,  to  the  party  at  whose 
instance  the  subpoena  issued,  the  sum  of  forty  dollars,  to  be  recovered 
by  motion  in  the  cause,  and  shall  be  further  liable  to  his  action  for 
the  full  damages  which  may  be  sustained  for  the  want  of  such  wit- 
ness's testimony ;  or  if  summoned  in  a  criminal  prosecution  shall  for- 
feit and  pay  eighty  dollars  for  the  use  of  the  state,  or  the  party  sum- 
moning him:  Provided,  that  if  the  civil  action  or  special  proceeding 
shall,  in  the  vacation,  be  compromised  and  settled  between  the  par- 
ties, and  the  party  at  whose  instance  such  witness  was  summoned 
should  omit  to  discharge  him  from  further  attendance,  and  for  want 


Ifi43  EVIDEXCE— 7.Y.  Attendance  of  Witness.  Ch.   .'U 

of  such  discharge,  he  shall  attend  the  next  term,  in  that  case  the  wit- 
ness, upon  oath  made  of  the  facts,  shall  be  entitled  to  a  ticket  from 
the  clerk  in  the  same  manner  as  other  witnesses,  and  shall  recover 
from  the  party,  at  whose  instance  he  was  summoned,  the  allowance 
which  is  given  to  witnesses  for  their  attendance,  with  costs:  Provided 
further,  that  no  execution  shall  issue  against  any  defaulting  witness 
for  the  forfeiture  aforesaid,  but  after  notice  made  known  to  him  to 
show  cause  against  the  issuing  thereof;  and  if  sufficient  cause  be 
shown  of  his  incapacity  to  attend,  execution  shall  not  issue,  and  the 
witness  shall  be  discharged  of  the  forfeiture  without  costs;  but  other- 
wise the  court  shall,  on  motion,  award  execution  for  the  forfeiture 
against  the  defaiilting  witness. 

Code,  s.  1356;  R.  C,  c.  31,  ss.  60,  61,  62;  177",  c.  115,  ss.  37,  38,  43:  1799. 
e.  528;    1801,  c.  591. 

1644.  Not  arrested  in  civil  cases  while  attending  court.  Every 

■witness  sluill  be  exempt  from  arrest  in  civil  actions  or  special  pro- 
ceedings during  his  attendance  at  any  court,  or  before  a  commissioner, 
arbitrator,  referee  or  other  person  authorized  to  command  the  attend- 
ance of  such  witness,  and  during  the  time  such  witness  is  going  to 
and  returning  from  the  place  of  such  attendance,  allowing  one  day  for 
every  thirty  miles  siich  witness  has  to  travel  to  and  from  his  place  of 
residence. 

Code,  s.  1367;  R.  C,  c.  31,  s.  70;  1777,  c.  115,  s.  44. 

X.     Depositions. 

1645.  What  may  be  read  on  the  trial.  Every  deposition  taken 

and  returned  as  prescribed  in  section  one  thousand  six  hnndred  and 
fifty-two  may  be  read  on  the  trial  of  the  action  or  proceeding,  or 
before  any  referee,  in  the  following  cases,  and  not  otherwise: 

1.  If  the  witness  is  dead,  fir  has  become  insane  since  the  depositi<ui 
wan  taken. 

2.  If  the  witness  is  a  resident  of  a  foreigii  country,  or  of  another 
state,  and  is  not  present  at  the  trial. 

8.  If  the  witness  is  confined  in  a  prison  outside  the  county  in  which 
the  trial  takes  place. 

4.  If  the  witness  is  so  old,  sick  or  infirm  as  to  lie  \uiable  to  attend 
courf. 

5.  If  the  witness  is  the  president  of  the  United  States,  or  the 
head  of  any  department  of  the  federal  government,  or  a  judge,  dis- 
trict attorney,  or  clerk  of  any  court  of  the  United  States,  and  the  trial 
shall  take  place  during  the  term  of  such  court. 

0.  If  the  witness  is  the  governor  of  the  state,  or  the  iicad  uf  any 
ile)iartin<'nt  of  the  state  goveniuient,  (U-  tlie  ])resident  nf  the  uiiivcr- 


1645  EVIDENCE— T.  Depositions.  Ch.  34 

sity,  or  the  head  of  any  other  incorporated  college  in  the  state,  or  the 
sui^erintendent  or  any  jjhysician  in  the  employ  of  any  of  the  hospitals 
for  the  insane  for  the  state. 

7.  If  the  witness  is  a  justice  of  the  supreme  cimrt,  or  a  jvulge, 
presiding  officer,  clerk  or  solicitor  of  any  court  of  record,  and  the 
trial  shall  take  place  during  the  term  of  svTch  court. 

8.  If  the  witness  is  a  member  of  the  congTess  of  the  United  States, 
or  a  member  of  the  general  assembly,  and  the  trial  shall  take  place 
during  a  session  of  the  body  of  which  he  is  a  memter. 

9.  If  the  \\'itness  has  been  duly  sununoned,  aJid  at  the  time  of  the 
trial,  is  out  of  the  state,  or  is  more  than  seventy-iive  miles  by  the  visual 
public  mode  of  travel  from  tlie  place  where  the  court  is  sitting,  with- 
out the  procurement  or  consent  of  the  party  offering  his  deposi- 
tion. 

Code,  s.  1358;  R.  C,  c.  31,  s.  63;  1777,  e.  115,  ss.  39,  40,  41;  1803,  c.  633; 
1828,  e.  24,  ss.  1,  2;  1836,  e.  30;  1869-70,  c.  227,  s.  11;  1881,  c.  279.  ss.  1,  3;  1905, 
c.  366. 

Note.     In  quo  warranto,  read  when,  see  s.  1654. 

1646.  In  justices'  courts.    Any  party  in  a  civil  action  before  a 

justice  of  the  peace  may  take  the  depositions  of  all  persons  whose 
evidence  he  may  desire  to  use  in  the  action ;  and  to  do  so,  he  may 
apply  to  the  clerk  of  the  superior  court  for  a  commission  to  take  the 
same,  and  shall  proceed  in  all  things  in  taking  such  depositions  as 
if  such  action  was  pending  in  the  superior  court.  When  any  such 
depositions  are  returned  to  the  clerk,  they  shall  be  opened  and 
passed  upon  by  the  clerk,  and  delivered  to  the  justice  of  the  peace, 
before  whpm  the  trial  is  to  be  had ;  and  the  reading  and  using  of 
said  depositions  shall  conform  to  the  rules  of  the  superior  court. 
Code,  s.  1359;  1872-3,  e.  33. 

1647.  Not  quashed  after  trial  begun.   No  deposition  shall  be 

quashed,  or  rejected,  on  objection  tirst  made  after  a  trial  has  begun, 
merely  because  of  an  irregiilarity  in  taking  the  same,  provided  it  shall 
appear  that  the  party  objecting  had  notice  that  it  had  been  taken,  and 
it  was  on  iile  long  enough  before  the  trial  to  enable  him  to  present  his 
objection. 

Code,  s.   1300;   1869-70,  c.  227,  s.   12. 

1648.  Objection  taken  before  trial.  At  any  time  before  the  trial, 
or  hearing  of  an  action  or  jiroeeeding,  any  party  may  make  a  motion 
to  the  judge  or  coiirt  to  reject  a  deposition  for  irregularity  in  the 
taking  of  it,  either  in  whole  or  in  part,  for  scandal^  impertinence, 
the  incompetency  of  the  testimony,  for  insiirfficient  notice,  or  for 
any  other  good  cause.  The  objecting  party  shall  state  his  exceptions 
in  writing. 

Code,  s.  1361;   1895,  c.  312;   190.3,  c.  132;   1869-70,  c.  227,  ss.  13,  17. 
503 


1649  EVIDENCE— A'.  Depositions.  Ch.   3-4 

1649.  Commissioners  may  subpoena  witness  and  punish  for 

contempt,  (-'ommissioners  tu  take  (.le|)(isiti(>ns  a]i|i(iiiitiMl  hv  tlit' 
courts  of  this  state,  or  by  the  courts  of  the  states  or  territories  of 
the  Ignited  States,  arbitratoi-s,  referees,  and  all  persons  acting  under 
a  commission  issuing  from  any  court  of  record  in  this  state,  are 
hereby  empowered,  they  or  the  clerks  of  the  courts  res])eetively  in 
this  state,  to  which  such  commission  shall  be  returnable,  to  issue 
subpoenas,  specifying  the  time  and  place  for  the  attendance  of  wit- 
nesses before  them,  and  to  administer  oaths  to  said  witnesses,  to  the 
end  that  they  may  give  their  testimony.  And  any  witness,  appear- 
ing before  any  of  the  said  persons,  and  refusing  to  give  his  testimony 
on  oath  touching  such  matters  as  he  may  be  lawfully  examined  unto, 
shall  be  committed,  by  warrant  of  the  person  before  whom  he  shall 
so  refuse,  to  the  common  jail  of  the  county,  there  to  remain  \uitil  he 
may  be  willing  to  give  his  evidence;  whicli  warrant  of  connnitment 
shall  recite  what  authority  the  person  has  to  take  the  testimony  of 
such  witness,  and  the  refusal  of  the  witness  to  give  it. 

Code,  s.  1362;  R.  C.  c.  31,  s.  64;  1777,  c.  115,  s.  42;  1805,  c.  685,  ss.  1,  2; 
1848,  c.  66;   1850,  c.  188. 

1650.  Attendance  before  commissioner,  how  enforced.    The 

sheriff  of  the  county  where  the  witness  may  be,  sliall  execute  all 
such  subpcenas,  and  make  due  retTirn  thereof  before  the  commis- 
sioner, or  other  person,  before  whom  the  witness  is  to  appear,  in 
the  same  manner,  and  under  the  same  penalties,  as  in  case  of  pro- 
cess of  a  like  kind  returnable  to  court;  and  when  the  witness  shall  be 
subpoenaed  five  days  before  the  time  of  his  required  attendance,  and 
shall  fail  to  appear  according  to  the  subpoena  and  give  e's'idence,  the 
default  shall  be  noted  by  the  commissioner,  arbitrator,  or  other  per- 
son aforesaid  ;  and  in  case  the  default  be  made  before  a  commis- 
sioner acting  under  authority  from  courts  without  the  state,  the 
defaulting  witness  shall  forfeit  and  pay  to  the  party  at  whose 
instance  he  may  be  subpoenaed  fifty  dollars,  and  on  the  ti-ial  for  such 
penalty',  the  subpoena  issiaed  by  the  commissioner,  or  other  person, 
as  aforesaid,  with  the  indorsement  thereon  of  due  seiwice  by  the 
officer  sei'ving  the  same,  together  witli  the  default  noted  as  afore- 
said and  indorsed  on  the  subpoena,  shall  \w  ]H'inia  facie  evidence 
of  the  forfeiture,  and  suflicicnt  to  entitle  tlie  iilaiutitf  to  judgnnent 
for  the  same,  unless  the  witness  may  shdW  his  ineaiiaeity  In  liave 
attended. 

Code,  s.  UC,?,:  R.  C,  c.  .31,  s.  C5 ;  1848,  c.  06,  s.  2;   1850.  e.  188,  ss.  1,  2. 

1651.  Remedies  against  defaulting  witness  before  commis- 
sioner, lint  in  case  the  default  he  nindc^  lietore  a  eoiiiniissiiiner, 
arbilraliir,  referee  nr  otlier  ]>erson,  acting  under  a  (•(nuuiissidn  or 
anlliiirifv  fniui  anv  of  the  courts  of  tin's  slate,   then   the  same  sliall 


1651  EVIDEi^CE— X.  DejwsUions.  Ch.   34 

lie  certified  imder  his  hand,  and  i-eturned  with  the  subpoena  to  the 
court  by  which  he  was  corainissioned  or  empowered  to  talie  the  evi- 
dence of  such  witness;  and  thereupon  the  court  shall  adjudge  the 
defaulting  witness  to  pay  to  the  party  at  whose  instance  he  was 
summoned,  the  sum  of  forty  dollars ;  but  execution  shall  not  issue 
therefor  until  the  same  be  ordered  by  the  court,  after  such  proceed- 
ings had  as  shall  give  said  witness  an  opportunity  to  show  cause, 
if  he  can,  against  the  issuing  thereof. 

Code,  s.  1364;   R.  C,  c.  31,  s.  60;   1850,  c.  188,  s.  2. 

1652.  How  taken.  Any  party  in  a  civil  action  or  special  pro- 
ceeding may  take  the  depositions  of  persons  whose  evidence  he  may 
desire  to  use,  without  any  special  order  therefor,  unless  the  witness 
shall  be  beyond  the  limits  of  the  United  States.  Written  notice 
of  the  time  and  place  of  taking  a  deposition,  specifying  the  name  of 
the  witness,  must  be  served  by  the  party  at  whose  instance  it  is  taken 
upon  the  adverse  party  or  his  attorney.  The  time  for  serving  such 
notice  shall  be  as  follows:  Three  entire  days  when  the  party  notified 
resides  within  ten  miles  of  the  place  where  the  deposition  is  to  be 
taken ;  in  other  cases,  where  the  party  notified  resides  in  the  state, 
one  day  more  for  every  additional  twenty  miles,  except  where  the 
deposition  is  to  be  taken  within  ten  miles  of  a  railway  in  running 
operation  in  the  state,  when  one  day  only  shall  be  given  for  everj' 
hundred  miles  of  railway  to  the  place  where  the  deposition  is  to  be 
taken.  When  a  deposition  is  to  be  taken  beyond  the  state,  ten  days' 
notice  of  the  taking  thereof  shall  be  given,  when  the  party  whose 
deposition  is  to  be  taken  resides  within  ten  miles  of  a  railway  con- 
necting with  a  line  of  railway  within  twenty  miles  of  the  place 
where  the  person  notified  resides.  In  other  cases,  where  there  are 
no  railways  running  as  above  specified,  twenty  days'  notice  shall  be 
given.  When  objection  is  taken  to  the  reading  of  any  such  deposi- 
tion, upon  the  gTOund  that  there  are  no  railways  or  connecting  rail- 
ways to  and  from  the  points  specified  in  this  section,  or  that  the 
notice  given  had  otherwise  been  actually  insufficient,  it  shall  devolve 
\ipon  the  party  objecting  to  satisfy  the  court  of  the  truth  of  his  alle- 
gation. Depositions  shall  be  taken  on  commission,  issuing  from  the 
court  and  under  the  seal  thereof,  by  one  or  more  commissioners,  who 
shall  be  of  kin  to  neither  party,  and  shall  be  appointed  by  the  clerk. 
Depositions  shall  be  subscribed  and  sealed  up  by  the  commissioners, 
and  returned  to  the  court,  the  clerk  whereof  or  the  judge  holding  the 
court,  if  the  clerk  is  a  party  to  the  action,  shall  open  and  jiass  upon 
the  same,  after  having  first  given  the  parties  or  their  attorneys  not 
less  than  one  day's  notice ;  and  all  such  depositions,  Avhen  passed 
upon  and  allowed  by  the  clerk,  without  appeal,  or  by  the  judge 
upon  appeal  from  the  clerk's  order,  or  by  the  judge  holding  the  court. 


1652  EVIDENCE— X.  Depositions.  Ch.   34 

when  the  clerk  is  a  party  to  the  action,  shall  be  deemed  legal  evi- 
dence, if  the  witness  be  competent.  In  all  criminal  actions  jjcndina- 
before  the  superior  court  it  shall  be  lawful  for  the  defendant  in  any 
such  action  to  make  aitidavit  before  the  clerk  of  the  superior  court 
in  which  said  action  is  pending  that  it  is  important  for  the  defense 
that  he  have  the  testimony  of  any  person  or  persons,  whose  names 
must  be  given,  and  that  such  person  or  persons  are  so  infirm,  or 
otherwise  physically  incapacitated,  or  nonresident  of  this  state,  that 
he  can  not  procure  their  attendance  at  court.  Upon  the  filing  of  said 
affidavit  it  shall  be  the  duty  of  the  clerk  to  appoint  some  re,sjx)nsible 
person  to  take  the  deposition  of  said  person,  which  deposition  may 
be  read  in  the  trial  of  said  criminal  action  under  the  same  rules 
as  now  apply  by  law  to  depositions  in  civil  actions:  Provided,  that 
the  solicitor  of  the  district  in  which  said  suit  is  pending  have  ten 
days'  notice  of  the  taking  of  said  deposition,  who  may  appear  in 
person  or  by  a  representative  to  conduct  the  cross-examination  of 
such  witness. 

Code,  s.  1357;  1893,  cc.  80,  360;  1891,  c.  522;  R.  C,  c.  31,  s.  63;  1881,  c.  279. 

1653.  How  taken  in  hearings  before  municipal  authorities.  Any 

board  of  aldermen,  board  of  town  or  county  eummissioners  or  any 
person  interested  in  any  proceeding,  investigation,  hearing  or  trial 
before  such  board,  may  take  the  depositions  of  all  ]3ersons  whose 
evidence  may  be  desired  for  use  in  said  proceeding,  investigation, 
hearing  or  trial ;  and  to  do  so,  the  chairman  of  such  board  or  such 
person  may  apply  in  person  or  by  attorney  to  the  saijierior  court  clerk 
of  that  county  in  which  such  proceeding,  investigation,  hearing  or 
trial  is  pending  for  a  commission  to  take  the  same,  and  said  clerk, 
upon  such  application,  shall  issue  such  commission ;  and  the  notice 
and  proceedings  upon  the  taking  of  said  depositions  shall  be  the 
same  as  provided  for  in  civil  actions :  and  if  the  person  upon 
whom  the  notice  of  the  taking  of  such  dejiosition  is  to  be  served  is 
absent  from  or  can  not  after  due  diligence  be  found  within  this 
state,  but  can  be  found  within  the  county  in  which  the  deposition 
is  to  be  taken,  then,  and  in  that  case,  said  notice  shall  be  personally 
served  on  such  person  by  the  commissioner  appointed  to  take  such 
deposition ;  and  ^fhen  any  such  deposition  is  returned  to  the  clerk 
it  shall  be  opened  and  passed  upon  by  him  and  delivered  to  such 
board,  and  the  reading  and  using  of  such  deposition  shall  conform 
to  the  rules  of  the  superior  court. 
1889,  c.  151. 

1654.  In  quo  warranto  proceedings,  how  taken,    in  all  cases 

now  ]>ending  or  hereafter  to  be  brought  in  any  county  of  this  state 
for  the  purpose  of  trying  the  title  to  the  office  of  clerk  of  the  supo- 


1654  EVIDENCE— X.  Depositions.  Ch.   34 

rior  court,  register  of  deeds,  coiinty  treasurer  or  sheriff  of  any  county, 
it  shall  be  competent  and  lawful  to  take  the  deposition  of  witnesses 
before  a  conunissioner  or  commissioners  to  be  appointed  by  the 
judge  of  the  district  wherein  the  case  is  to  be  tried,  or  the  judge 
holding  the  court  of  said  district,  or  the  clerk  of  the  court  wherein 
the  case  is  pending,  under  the  same  rules  as  to  time  of  notice  and 
as  to  the  manner  of  taking  and  filing  the  same  as  is  now  provided 
by  law  for  the  taking  of  depositions  in  other  cases ;  and  such  deposi- 
tions, when  so  taken,  shall  be  competent  to  be  read  on  the  trial  of 
such  action,  withoiit  regard  to  the  place  of  residence  of  such  witness 
or  distance  of  residence  from  said  place  of  trial:  Provided,  that  the 
provisions  of  this  section  shall  not  be  construed  to  prevent  the  oral 
examination  of  such  witnesses  by  either  party  on  the  trial  as  they 
may  summon  in  their  behalf. 
1889,  c.  428. 

1655.  Taken  in  the  state,  action  in  another  state.  In  addition 

to  the  other  remedies  prescribed  by  law,  a  party  to  an  action,  suit  or 
special  proceeding,  civil  or  criminal,  pending  in  a  court  without 
the  state,  either  in  the  United  States  or  any  of  the  possessions  thereof, 
,  or  any  foreign  country,  may  obtain  by  the  proceedings  prescribed 
by  this  section,  the  testimony  of  a  witness  and  in  connection  there- 
with the  production  of  books  and  papers  within  the  state  to  be 
used  in  the  action,  suit  or  special  proceedings.  Where  a  commis- 
sion to  take  testimony  within  the  state  has  been  issued  from  the 
court  in  which  the  action,  suit  or  special  proceeding  is  pending,  or 
where  a  notice  has  been  given,  or  any  other  proceeding  has  been 
taken  for  the  purpose  of  taking  the  testimony  within  the  state  pur- 
suant to  the  laws  of  the  state  or  coTmtry  wherein  the  court  is  located 
or  pursuant  to  the  laws  of  the  United  States  or  any  of  the  possessions 
thereof,  if  it  is  a  court  of  the  United  States,  any  justice  of  the 
supreme  court  or  judge  of  the  superior  court  shall,  in  a  proper  case, 
on  the  presentation  of  a  verified  petition,  issue  a  subpa?na  to  the  wit- 
ness, commanding  him  to  ap])ear  before  the  conunissioner  named  in 
the  commission,  or  before  a  conunissioner  within  the  state,  for  the 
state,  territory  or  foreign  countiw  in  which  the  notice  was  given  or 
the  proceeding  taken,  or  before  the  officer  desigliated  in  the  com- 
mission, notice  or  other  paper  by  his  title  or  office,  at  a  time  and 
place  specified  in  the  subptpna,  to  testify  in  the  action,  suit  or  special 
proceeding.  If  the  witness  shall  fail  to  obey  the  subpoena,  or  refuse 
to  have  an  oath  administered,  or  to  testify  or  to  produce  a  book  or 
paper  pursuant  to  a  subpoena,  or  to  subscribe  his  deposition,  the  jus- 
tice or  jiidge  issuing  the  subpoena  shall,  if  it  is  determined  that  a 
contempt  has  been  committed,  pi-escribe  punishment  as  in  case  of 
a    recalcitrant    witness.     The    petition    jircscribed    l>y    this    section 


1655  EVIDEXCE— X.  Depositions.  Ch.  34 

must  state  generally  the  nature  of  the  action  or  proceeding  in 
which  the  testimony  is  sought  to  be  taken,  and  that  the  testimony 
of  the  witness  is  material  to  the  issue  presented  in  such  action  or 
IJroceeding,  and  shall  set  forth  the  substance  of  or  have  annexed 
thereto  a  copy  of  the  commission,  order,  notice,  consent  or  other 
authority  under  which  the  deposition  is  taken.  In  case  of  an  appli- 
cation for  a  subpoena  to  compel  the  production  of  books  or  papers, 
the  isetition  shall  specify  the  particular  books  or  pajjers,  the  jjroduc- 
tion  of  which  is  sought,  and  show  that  such  books  or  papers  are  in 
the  jiossession  of  or  under  control  of  the  witness  and  are  material 
ui^on  the  issues  presented  in  the  action  or  special  proceeding  in  whicli 
the  deposition  of  the  witness  is  sought  to  be  taken.  Unless  the  jus- 
tice or  judge  is  satisfied  that  the  application  is  made  in  good  faith 
to  obtain  testimony  within  the  provisions  of  this  section,  he  shall 
deny  the  application.  Where  the  subpojna  directs  the  production  of 
books  or  papers,  it  shall  specify  the  particular  books  or  papers  to 
be  produced,  and  shall  specify  whether  the  witness  is  required  to 
deliver  sworn  copies  of  such  books  or  papers  to  the  commissioner  or 
to  produce  the  original  thereof  for  inspection,  but  said  books  and 
original  papers  shall  not  be  taken  from  the  witness.  This  sub- 
poena must  be  served  upon  the  witness  at  least  two  days,  or,  in  case 
of  a  subpoena  requiring  the  production  of  books  or  papers,  at  least 
five  days  before  the  day  on  which  the  witness  shall  be  commanded 
to  appear.  A  party  to  an  action  or  proceeding  in  which  a  deposi- 
tion is  sought  to  be  taken,  or  a  witness  subpoenaed  to  attend  and 
give  his  testimony,  may  apply  to  the  court  issuing  said  subpoena 
to  vacate  or  modify  such  subpoena.  Upon  proof  by  atfidavit  that  a 
person  to  whom  a  subpirna  was  issued  has  failed  or  refused  to  obey 
such  subpoena,  to  be  duly  sworn  or  affirmed,  to  testify  or  answer  a 
question  or  questions  propounded  to  him,  to  produce  a  book  or  paper 
which  he  has  been  subpoenaed  to  produce,  or  to  subscribe  to  his  depo- 
sition when  correctly  taken  down,  the  said  justice  or  judge  shall 
grant  an  order  requiring  such  person  to  show  cause  before  him,  at 
a  time  and  place  specified,  why  he  should  not  appear,  be  sworn  or 
affirmed,  testify,  answer  a  question  or  questions  propoimded,  pro- 
duce a  book  or  paper,  or  subscribe  to  the  deposition,  as  the  case  may 
be.  Such  affidavit  shall  also  set  forth  the  nature  of  the  action  or 
special  proceeding  in  which  the  testimony  is  sought  to  be  taken,  and 
a  copy  of  the  pleadings  or  other  papers  defining  the  issues  in  such 
action  or  s]iecial  proceeding,  or  the  facts  to  be  jjroved  therein.  Upon 
the  return  of  such  order  to  show  cause,  the  said  justice  or  judge,  as 
the  case  may  be,  shall,  upon  such  affidavit  and  upon  the  original  peti- 
tion and  upon  such  other  facts  as  shall  appear,  determine  whctlier 
such  persons  should  be  required  to  appear,  be  sworn  or  affirmed, 
testify,  answer  the  question  or  questions  prop()un<loil,   prodiicc  the 


1(355  EVIDENCE— X.  Depositions.  Cb.   ?A 

lii'oks  or  papers,  or  siibscribe  to  his  deposition,  as  the  case  may  be, 
and  may  prescribe  such  terms  and  conditions  as  shall  seem  proper. 
Upon  proof  of  a  failure  or  refusal  on  the  part  of  any  person  to  com- 
ply with  any  order  of  the  court  made  upon  such  determination,  the 
justice  or  judge,  as  the  case  may  be,  shall  make  an  order  requiring 
such  person  to  show  cause  before  him,  at  a  time  and  place  therein 
specified,  why  such  person  should  not  be  punished  for  the  offense 
as  for  a  contempt.  Upon  the  return  of  the  order  to  show  cause,  the 
questions  which  arise  must  be  determined  as  upon  a  motion.  If 
such  failure  or  refusal  is  established  to  the  satisfaction  of  the  jus- 
tice or  judge  before  whom  the  order  to  show  cause  is  made  returnable, 
the  justice  or  judge,  as  the  case  may  be,  shall  enforce  the  order  and 
prescribe  the  punishment  as  hereinbefore  provided.  The  commis- 
sioner herein  provided  for  shall  not  proceed  to  act  under  and  by 
virtue  of  his  appointment  until  the  party  seeking  to  obtain  such 
deposition  has  deposited  with  him  a  sufficient  simi  of  money  to  cover 
all  costs  and  charges  incident  to  the  taking  of  the  deposition,  includ- 
ing such  witness  fees  as  are  allowed  to  witnesses  in  this  state  for 
attendance  upon  the  superior  courts,  and  from  such  deposit  said 
commissioner  shall  retain  whatever  amount  may  be  due  him  for 
services,  pay  such  witness  fees  and  other  costs  that  may  have  been 
incurred  by  reason  of  taking  such  deposition,  and  if  any  balance 
remains  in  bis  hands  he  shall  pay  the  same  to  the  party  by  wdiom  it 
was  advanced. 
1903,  c.  60S. 

XI.     Writings,  Production,  Inspection. 

1656.  Inspection  before  trial.  The  court  before  which  an  action 
is  pending,  or  a  judge  thereof,  may,  in  their  discretion,  and  upon 
due  notice,  order  either  party  to  give  to  the  other,  within  a  specified 
time,  an  inspection  and  copy,  or  permission  to  take  a  copy,  of  any 
books,  papers,  and  documents  in  his  possession  or  under  his  control, 
containing  e^'idence  relating  to  the  merits  of  the  action,  or  the 
defense  therein.  If  compliance  with  the  order  be  refused,  the  court, 
on  motion,  may  exclude  the  paper  from  being  given  in  evidence, 
or  punish  the  party  refusing,  or  both. 

Code,  s.  578;  It.  C,  c.  31,  s.  82;  R.  S.,  e.  31,  s.  86;  1821,  c.  1095;  C.  C.  P., 
s.  331;  1828,  c.  7. 

1657.  Production  on  trial.  The  courts  shall  have  full  ]iowpr;  on 
motion  and  due  notice  thereof,  given,  to  require  the  parties  to  \n-o- 
duce  books  or  writings  in  their  possession  or  control  whieli  contain 
evidence  pertinent  to  the  issue,  and  if  a  plaintiff  shall  fail  to  comply 
with  such  order,  and  shall  not  satisfactorily  account  for  bi^  failure, 


1057         EVIUEXCE— A7.   WrUings,  Production,  etc.         Cli.   :;4 

the  court,  on  iiiotion,  may  give  the  like  judgiuent  for  the  tlefeiidani, 
as  in  cases  of  nonsuit ;  and  if  a  defendant  shall  fail  to  conij)h-  with 
such  order,  and  shall  not  satisfactorily  account  for  his  failure,  the 
court,  on  motion  as  aforesaid,  may  give  judgment  against  him  by 
default. 

Code,  s.  1373;  R.  C,  c.  31,  s.  25;  1821,  c.  1095;  1828,  c.  7. 

1658.  Admission  of  genuineness  procured.   Either  party  may 

exhibit  to  tlie  other,  ur  to  his  attorney  at  any  time  before  the  trial, 
any  isaper  material  to  the  action,  and  request  an  admission  in  writ- 
ing of  its  genuineness.  If  the  adverse  party,  or  his  attorney,  fail  to 
give  the  admission  within  four  days  after  the  request,  and  if  the 
party  exhibiting  the  jjaper  be  afterwards  ]nit  to  expense  in  order  to 
prove  its  genuineness,  and  the  same  be  finally  proved  or  admitted 
on  the  trial,  such  expense,  to  be  ascertained  at  the  trial,  shall  be  paid 
by  the  party  refusing  the  admission,  iinless  it  ap]iear  to  the  satis- 
faction of  the  court  that  there  were  good  reasons  for  the  refusal. 

Code,  s.  578;  R.  C,  c.  31,  s.  82;  R.  S.,  c.  31,  s.  86;  1821,  c.  1095;  1828,  c.  7; 
C.  C.  P.,  s.  331. 

XII.        CoNFEDEn.\TE    CuREEXCV. 

1659.  Scale  of  depreciation.  Contracts  solvable  in  Confederate 
currency  may  be  discharged  according  to  the  following  scale  of 
depreciation  of  Confederate  currency,  the  gold  dollar  being  the  unit 
and  measure  of  value,  from  Xoveinber  first,  one  thousand  eight  hun- 
dred and  sixty-one,  to  May  first,  one  thousand  eight  hundred  and 
sixtv-five : 


Months. 


1861. 


1862. 


1863. 


1864. 


1865. 


January . — 
February  — 

March 

April 

May 

June 

July 

August 

September. 
October  .-- 
November  . 
December 


1.10 
1.15 


1st  to  10th,  inclusive- -- 
10th  to  20th,  inclusive  - 
20th  to  30th,  inclusive  . 


$  1.20 
1.30 
1.50 
1.50 
1.50 
1.50 
1.50 
1.50 
2.00 
2.00 
2.50 
2.50 


$  3.00 
3.00 
4.00 
5.00 
5.50 
6.50 
9.00 
14.00 
14.00 
14.00 
15.00 
20.00 


$21. 00 
21.00 
23.00 
20.00 
19.00 
18.00 
21.00 
23.00 
25.00 
2fi.  00 
30.00 


35.00 
42.00 
49.00 


P  50.  00 
50.00 
60.00 
100.00 


Iii59  EVIDENCE— AT/.   Confederate  Currency.  C'li.  :34 

This  scale  applies  to  the  time  of  contracting'  and  not  to  the  times 
said  debts  become  dne. 

(ode,  ss.  2495,  2496;   1866,  e.  39,  s.  1;   1866-7,  c.  44. 

Note.     For  evidence  in  indictment  for  enticing  minors  from  state,  see  s.  3G30. 

For  evidence  in  cases  of  hunting  by  niglit,  see  s.  3462. 

For  evidence  necessary  in  cases  of  disposing  of  mortgaged  propertj',  see  s.  3435. 

For  evidence  in  indictments  for  secreting  seamen,  see  s.  3557. 

For  students  as  witnesses  against  lewd  women,  see  s.  3353. 

For  evidence  to  convict  of  seduction,  see  s.  3354. 

For  what  necessary  to  allege  and  prove  in  prosecutions  for  selling  seed  cotton, 
see  s.  3812. 

For  evidence  in  prosecution  for  selling  liquor  in  local  option  territory,  see 
s.  2060. 

For  evidence  in  cases  of  gaming,  see  Gaming  Contracts. 

For  evidence  in  suits  against  sureties  on  official  bonds,  see  Bonds. 

For  recitals  in  tax  deeds  as  evidence,  see  s.  2909. 

See  Burnt  and  Lost  Records. 

For  proof  of  loss  of  baggage,  see  Innkeepers,  s.  1914. 

For  certified  copies  of  judgments  as  evidence,  see  s.  569. 

See  Commissioners  of  Affidavits. 

Vouchers  evidence  of  payment  by  administrator,  see  Administiation,  s.  101. 

For  evidence  against  principal  as  against  surety,  see  s.  285. 


CHAPTEE  35. 
FENCES  AND  STOCK  LAW. 

Sections. 
1.     Lawful  fences,  1660—1663 

II.     .Joint  fences,  1664—1671 

III.     Stock  law,  1672—1686 

L     Lawful  Fences. 

1660.  Fences  to  be  five  feet  high.  Everv  planter  shall  make  a 
sufficient  fence  abont  his  cleared  gmund  nnder  cnltivation,  at  least 
five  feet  high,  unless  otherwise  provided  in  this'  chapter,  unless  there 
shall  be  some  navigable  stream  or  deep  water-course  that  shall  be 
sufficient,  instead  of  such  fence,  and  unless  his  lands  shall  be  situ- 
ated within  the  limits  of  a  county,  township  or  district  wherein 
the  stock  law  may  be  in  force. 

Code,  s.  2799;  R.  C,  e.  48,  s.  1;  1777,  c.  121,  s.  2;   1791,  c.  354,  s.  1. 

1661,  Four  and  a  half  feet  in  certain  counties.  A  fence  four  and 

one-half  feet  high  shall  be  a  lawful  fence  in  the  counties  of  Cum- 
berland, Currituck,  Cher(jkcc,  IJurke,  Rutherford,  Yancey,  Wilkes, 
Caldwell,  Duplin,  Jackson,  Alleghany,  Davidson,  Harnett,  Ilender- 


l(i(il     FEXCES  AXD  STOCK  LAW—/.  Lairful  Fences.    Ch.   :!:. 

son,  Wake,  Craven,  Ivichmond,  Davie,  IJladcn,  Xorthamjjton,  Wasli- 
ingtou,  Randolph,  Kobeson,  Tyrrell,  Brunswick  and  Lenoir:  Pro- 
vided, this  section  shall  not  ap])ly  to  stock  law  fences. 

1889,  e.  175;   1801.  c.  .'JU ;   1801,  e.  •IX'.:  lOO.").  e.  XVA. 

1662.  Four  feet  in  certain  counties.  A  fence  four  feet  high  shall 

be  a  lawful  fence  in  the  counties  of  Carteret,  Pamlico,  Llyde,  New 
Hanover,  Ikincombe,  Madison  and  McDowell. 

1885,  c.  304;   1887,  c.  66;   1889,  c.  390;   1903,  c.  66;   1903,  c.  211. 

1663.  Water-courses,  on  application  to  commissioners,  made. 

Any  five  electors,  residents  of  the  same  county,  may  apply  to  the 
board  of  commissioners  of  the  county,  at  any  regular  meeting  ot 
the  same,  hy  written  petition  praying  that  any  water-course,  or  any 
part  of  any  water-course,  in  the  county,  may  be  made  a  lawful  fence. 
Notice  of  such  j^etition  shall  be  posted  forty  days  at  the  courthouse 
door,  by  the  clerk  of  the  board  before  such  petition  shall  be  acted 
upon.  LTpon  the  hearing  of  such  petition,  the  board  of  county  com- 
missioners is  authorized  to  declare  any  ■water-course,  or  any  part  of 
any  water-course  to  which  the  petition  applies,  a  lawful  fence.  And 
the  several  acts  of  the  general  assembly,  declaring  certain  \vater- 
courses,  in  part  or  in  whole,  lawful  fences,  are  so  far  rejiealed  as  to 
enable  the  board  of  commissioners  of  any  county  to  declare  any  of 
such  acts,  or  parts  thereof,  to  be  null  and  void  in  said  county.  Any 
order  made  imder  this  section  shall  be  of  record  and  signed  by  the 
chairman,  and  may  be  rescinded  by  the  board  of  commissioners  at 
any  regular  meeting. 

Code,  ss.  2808,  2809,   2810;    1872-3,  c.  98. 

II.     Joint   Fences. 

1664.  Jointly  maintained.  Where  two  or  more  jjcrsons  shall  have 
lands  adjoining,  which  shall  be  cither  cultivated  or  used  as  a  pasture 
for  stock,  the  respective  owners  of  each  piece  of  land  shall  make  and 
maintain  one-half  of  the  fence  upon  the  dividing  line. 

Code,  s.  2800;    1868  9.  c.  275,  s.  1. 

1665.  Jointly  paid  for,  when.  Where  the  owner  of  one  piece  of 
land  siiall  have  chosen  neither  to  cultivate  his  land,  nor  to  pasture, 
nor  to  jiermit  his  stock  to  run  on  it,  if  he  shall  afterwards  do  either, 
without  so  enclosing  such  stock  that  they  can  not  enter  on  the  lands 
of  such  adjoining  owner,  he  shall  refund  to  such  owner  one-half  the 
value  at  that  time  of  any  fence  erected  by  him  on  the  dividing  line. 

Code,  s.  2801;    1868-9,  c.  275,  s.  2. 


IMC     FENCES  AXD  STOCK  LAW--//.  Joint  Fences.     Ch.  35 

1666.  Value  of  dividing  fence  ascertained,  how.  The  value  of 

-ucli  fence  shall  he  asccrlaiiied  as  fulhjws:  Kitlicr  owner  may  siim- 
iiiuii  the  other  to  appear  before  any  justice  of  the  peace  of  the  town- 
ship in  which  the  dividing  line  is  situate;  or  if  it  be  situate  in  more 
than  one  township,  then  before  any  justice  of  the  peace  of  any  town- 
ship in  which  any  part  of  it  is  situate.  In  his  summons  he  shall 
name  a  certain  day,  not  less  than  iive  days  after  the  siammons,  for 
I  ho  appearance  of  the  defendant;  he  shall  also  state  the  purpose  of 
I  he  summons  to  he  the  adjustment  of  all  matters  in  controversy 
respecting  the  dividing  fence  between  the  parties.  The  justice  shall 
hear  the  complaint  and  defense.  If  the  facts  be  found  such  as  enti- 
rle  either  party  to  demand  contribution  of  the  other,  the  justice  shall 
call  on  the  complainant  to  name  an  indifferent  person,  qualified  to 
act  as  a  juror  of  the  township,  and  if  the  complainant  refuses  the 
justice  shall  name  one  for  him.  The  justice  shall  then  call  on  the 
defendant  to  name  an  indifferent  person,  qualified  to  act  as  a  juror 
of  the  township,  and  if  the  defendant  refuses  the  justice  shall  name 
one  for  him.  The  justice  shall  then  name  a  third  indifferent  person. 
These  three  persons,  or  any  t-wo  of  them,  shall  view  the  premises  and 
decide  all  matters  in  controversy  between  the  parties,  relating  to  a 
fence  on  the  dividing  line.  They  shall  make  a  written  report  to 
the  justice,  who  shall  give  judgment  thereon,  and  for  the  costs,  which 
shall  be  paid  by  the  owners  of  the  several  pieces  of  land  equally. 
The  jurors  shall  each  receive  one  dollar  per  day.  The  fees  of  the 
justice  and  constable  shall  be  as  in  other  cases.  Either  party  nmy 
appeal  as  provided  in  other  cases  of  justices'  judgnnents. 
Code,  s.  2803;   1868-9,  e.  275,  s.  3. 

1667.  Jurors  to  report  how  fence  kept  up.   The  report  of  the 

jurors  shall  also  state  the  kind  of  fence  which  ought  to  be  kept  up, 
and  assigTi  to  each  owner,  in  such  manner  as  that  it  may  be  identified, 
the  part  which  he  shall  keep  up. 

Code,   s.  2804;    1868-9,  c.  275,   s.  4. 

1668.  Report  registered  by  register  of  deeds.  The  justice  shall 

return  the  report,  together  with  a  transcript  of  the  proceedings,  to 
the  register  of  deeds  of  his  county  for  registration.  The  justice 
shall  collect  from  the  parties  the  fees  of  the  register,  and  pay  the 
same  to  him. 

Code,  s.  2805;    1868-9,  c.  275,  s.  5. 

1669.  Final  judgment  binding.  The  final  judgment  upon  the  re- 
port of  the  jurors  shall  be  binding  on  the  owners  of  the  respective 
lands  and  their  assigns,  so  long  as  such  owTiershi]i  shall  continue, 
or  until  the  same  shall  be  set  aside,  modified  or  reversed. 

Code,  s.  280G;   1868-9,  c.  275,  s.  6. 

Rev.  Vol.  1—29  513 


1670     FENCES  AND  STOCK  LAW— 77.  Joint  Fences.     Ch.  35 

1670.  Remedy  against  delinquent  owner.  If  any  person  who  i> 

liable  to  l>uikl  or  keep  up  a  ]iart  of  anv  division  fence,  shall  fail  ai 
any  time  to  do  so,  the  owner  of  the  adjoining  land,  after  notice,  may 
bnild  or  repair  the  whole,  and  recover  of  the  delinquent  one-half  of 
the  cost  before  any  court  having  jurisdiction. 
Code,  s.  2807;   1868-9,  c.  275,  s.  7. 

1671.  How  removed.  If  any  owner  of  land  liable  to  contribute 
for  the  keeping  up  of  a  division  fence,  shall  determine  neither  \<< 
cultivate  his  land  nor  permit  his  stock  to  run  thereon,  he  may  give 
the  adjoining  owner  three  months'  notice  of  his  determination;  and 
in  that  case,  at  any  time  after  the  expiration  of  such  notice,  and 
between  the  first  day  of  January-  and  the  first  day  of  ]\Iarch,  but  at 
no  other  time,  he  may  remove  the  half  of  the  fence  kept  up  by  him- 
self, and  shall  be  no  longer  liable  to  keep  \ip  the  same. 

Code,  s.  2802;    1903,  c.  20;    1868-9,  c.  275,  s.  8;   1883,  c.   111. 


Note.     Removal  of  joint  fence  a  misdemeanor,  see  s.  3412. 
III.     Stock  Law. 

1672.  County  elections.  Upon  the  written  application  of  one- 
fifth  of  the  qiuilificd  voters  of  any  county  made  to  the  board  of  com- 
missioners thereof,  it  shall  be  the  duty  of  said  commissioners  fi'om 
time  to  time  to  submit  the  question  of  "stflck  law"'  or  "no  stock 
law"  to  the  qualified  voters  of  said  coxmty.  And  if  at  any  such  elec- 
tion a  majority  of  the  votes  cast  shall  be  in  favor  of  said  stock  law, 
then  the  provisions  of  this  chapter  relating  to  the  stock  law  shall  be 
in  force  over  the  whole  of  said  county. 

Code,  s.  2812. 

1673.  Townstlip  elections.  Upon  the  written  application  of  one- 
fifth  of  the  qualified  voters  in  any  township,  made  to  the  board  of 
commissioners  of  the  county  wherein  said  township  is  situated,  it 
shall  be  the  duty  of  said  commissioners  to  submit  the  question  of 
"stock  law"  or  "no  stock  law"  to  the  qualified  voters  of  said  town- 
ship; and  if  at  any  such  township  electiou  a  majority  of  the  votes 
cast  shall  be  in  favor  of  "stock  law,"  then  the  said  stock  law  shall 
be  in  force  in  said  to\\'nship. 

Code,  s.  2813. 

1674.  District  elections.  Upon  the  written  application  of  one- 
fifth  of  the  qualified  voters  of  any  district  or  territtn-y,  whether  the 
boundaries  of  said  district  follow  township  lines  or  not,  made  to  the 
board  of  cotmty  commissioners  at  any  time,  and  .setting  forth  well- 
dclincd  Iwiindarics  of  said   district,  it  shall  be  the  dntv  of  ihe  said 


1074     FENCES  AND  STOCK  LAW—///.  Stock  Law.     Ch.  35 

commissioners  to  submit  the  question  of  "stock  law"  or  "no  stock 
law"  to  the  qualified  voters  of  said  district,  and  if  at  any  such  elec- 
tion a  majority  of  the  votes  cast  shall  be  in  favor  of  "stock  law,"  then 
the  said  stock  law  shall  be  in  force  over  the  whole  of  said  district. 
Code,  s.  2814. 

1675.  Persons  within  territory  allowed  to  withdraw.  Upon  the 

written  application  of  a  majority  of  the  qualified  voters  in  any  dis- 
trict, territory  or  well-defined  boundary,  made  to  the  board  of  county 
commissioners,  at  any  time,  setting  forth  that  the  citizens  of  said 
district,  territory  or  boundary  are  within  the  stock  law  boundary, 
and  are  desirous  of  being  released  from  the  laws  governing  said  stock 
law  territory,  it  shall  be  the  duty  of  said  commissioners  to  submit 
the  question  of  ''no  stock  law"  or  "stock  law"  to  the  qualified  voters 
of  said  district  or  territory,  and  if  at  any  such  election  a  majority 
of  the  votes  cast  shall  be  against  stock  law,  then  the  said  district  or 
territory  shall  be  released  and  free  from  the  operation  of  the  stock 
law :  Provided,  the  expense  incurred  in  changing  the  fence  in  s\ich 
boundary,  district  or  ten-itory  so  released  be  paid  by  the  property 
holders  in  such  boundary,  district  or  territory,  and  that  the  commis- 
sioners of  the  county  levy  the  tax  to  pay  the  same  on  the  property 
holders  of  such  boi;ndary,  district  or  territory  so  released,  but  they 
shall  not  be  further  liable  for  keeping  up  said  stock  law  fence:  Pro- 
vided, that  in  any  territory  where  stock  law  noAV  prevails  no  election 
against  stock  law  shall  be  held  in  less  than  two  years  from  the  date 
of  the  election  adopting  stock  law  in  said  territory:  Provided  fur- 
ther, that  if  "no  stack  law"  shoidd  carry,  it  shall  not  take  eifect 
until  six  months  from  the  date  of  its  ratification:  Provided  still  fur- 
ther, that  neither  "stock  law"  or  "no  stock  law"  shall  take  efl:'ect 
during  crop  season.  This  section  shall  apply  only  to  the  counties  of 
Jackson,  Graham,  Swain,  Clay,  Macon,  Cherokee  and  Randolph. 

1895,  c.  35;    1897,  cc.  461,  516;   1903,  c.  60. 

1676.  Elections,  how  held.  Every  election  under  this  chapter 
shall  be  held  and  conducted  under  the  same  rules  and  regulations  and 
according  to  the  same  penalties  provided  by  law  for  the  election  of 
members  of  the  general  assembly :  Provided,  no  such  county,  town- 
ship or  district  election  shall  be  held  oftener  than  once  in  any  one 
year,  although  the  boundaries  of  such  district  may  not  be  the  same. 

Code,  s.  2815. 

1677.  Powers  and  duties  of  commissioners.  The  board  of  com- 
missioners of  the  county  may  ]irovide  f(jr  a  new  registration  of 
voters,  designate  places  for  holding  elections,  and  make  all  regula- 
tions, and  do  all  other  things  necessary  to  carry  into  effect  the  pro- 
visions of  this  chapter  relating  to  the  stock  law. 

Code,  s.  2826. 

515 


1678     FENCES  AXD  STOCK  LAW— 777.  Stock-  Law.     Cb.  35 

1678.  Land  adjoining  stock  law  territory.  Any  person,  or  any 

number  of  perscnis,  (iwniiig  hind  in  a  ennuty,  district  or  township, 
which  shall  not  adopt  the  stock  law,  or  adjoining  any  county,  town- 
ship or  district  where  a  stock  law  prevails,  may  have  his  or  their 
lands  enclosed  within  any  fence  b\iilt  in  pursuance  of  this  chap- 
ter. All  such  adjacent  lands,  when  so  enclosed,  shall  be  subject  to 
all  the  provisions  of  law  with  respect  to  live  stock  running  at  large 
within  the  original  district  so  enclosed,  as  if  it  were  a  part  of  the 
township,  county  ,or  district  with  which  it  is  hereby  authorized  to 
be  enclosed.  Any  number  of  land  owners,  whose  lands  are  contigu- 
ous, may  at  any  time  build  a  common  fence  around  all  their  lands, 
with  gates  across  all  public  highways ;  and  no  live  stock  shall  run  at 
large  within  any  such  enclosure,  under  the  pains  and  penalties  pre- 
scribed in  this  chapter. 

Code,  s.  2821. 

Note.     See  Crimes,  s.  3319. 

1679.  Stock  not  to  run  at  large,  impounded.  Any  person  nun- 
take  up  any  live  stock  running  at  large  within  any  township  or  dis- 
trict wherein  the  stock  law  shall  be  in  force  and  impound  the  same ; 
and  such  impounder  may  demand  fifty  cents  for  each  animal  so 
taken  up,  and  twenty-five  cents  for  each  animal  for  every  day  sucli 
stock  is  kept  impounded,  and  may  retain  the  same,  with  the  right  to 
use  it  under  proper  care  until  all  legal  charges  for  impounding  said 
stock  and  for  damages  caused  by  the  same  are  paid,  said  damages 
to  be  ascertained  by  two  disinterested  freeholders,  to  be  selected  by 
the  owner  and  said  impounder,  said  freeholders  to  select  an  umpire, 
if  they  can  not  agree,  and  their  decision  to  be  final. 

Code,  s.  2816. 

1680.  Owner  notified;  sale  of  stock;  application  of  proceeds. 

If  the  owner  of  said  stock  be  known  to  such  impounder  he  shall  imme- 
diately inform  such  owner  where  his  stock  is  inipoiiiuled,  and  if 
said  owner  shall  for  two  days  after  such  notice  wilfully  refuse  or  neg- 
lect to  redeem  his  stock,  then  the  impounder,  after  ten  days'  written 
notice  posted  at  three  or  more  public  places  within  the  township 
where  said  stock  is  impounded,  and  describing  the  said  stock  and 
stating  place,  day  and  hour  of  sale,  or  if  the  owner  be  unknown, 
after  twenty  days'  notice  in  the  same  manner,  and  also  at  the  court- 
house door,  .shall  sell  the  stock  at  piiblic  auction,  and  apply  the  pro- 
ceeds in  accordance  with  the  preceding  and  succeeding  sections,  and 
the  balance  he  shall  turn  over  to  the  owner  if  known;  and  if  the 
owner  be  not  known,  to  the  coimty  commissioners  for  the  use  of  tlie 
school  fund  of  the  district  wherein  said  stock  was  taken  up  and 
impounded,  subject  in  their  hands  for  si.x  months  to  the  call  of  the 
legally  entitled  owner. 
Code,  s.  2817. 

516 


1681      FENCES  AND  STOCK  LAW—///.  Stock  Law.      Ch.  35 

1681.  Stock  defined.  The  word  "stock"  in  this  chapter  shall  be 
construed  to  mean  horses,  mules,  colts,  cows,  calves,  sheep,  goats,  jen- 
nets, and  all  neat  cattle,  swine  and  geese. 

Code,  s.  2822. 

1682.  Impounded  stock  may  be  fed;  pay  for  same.  In  case  any 

animal  shall  be  at  any  time  impounded  as  aforesaid,  and  shall  con- 
tinue to  be  without  necessary  food  and  water  for  more  than  twelve 
successive  hours,  it  shall  be  lawful  for  any  jDcrson  from  time  to 
time,  and  as  often  as  it  shall  be  necessary,  to  enter  into  and  upon 
any  such  pound  or  other  place,  in  which  any  animal  shall  be  so 
confined,  and  to  supply  it  with  necessary  food  and  water  so  long 
as  it  shall  remain  so  confined.  Such  person  shall  not  be  liable  to 
any  action  for  such  entry,  and  the  reasonable  cost  of  such  food  and 
water  may  be  collected  by  him  of  the  owner  of  such  animal. 
Code,  s.  2485;   1881,  c.  368,  s.  4. 

1683.  Fence  built  around  territory.   The  stock  law  authorized 

by  this  chapter  shall  not  be  enforced  until  a  fence  shall  have  been 
erected  around  any  territory  proposed  to  be  enclosed,  with  gates 
on  all  the  public  roads  passing  into  and  going  out  of  said  territory : 
Provided,  all  streams  which  are  or  may  be  declared  to  be  lawful 
fences  shall  be  sufficient  boundaries,  in  lieu  of  fences :  Provided  fur- 
ther, no  fence  shall  be  erected  along  the  boundary  lines  of  any  county, 
township  or  district  where  a  stock  law  prevails. 
Code,  s.  2823. 

1 684.  Lawful  fence  in  stock  law  territory.  In  any  county  in  the 

state  in  which  or  in  any  jturtion  <if  which  the  stock  law  is  now 
in  force  or  may  hereafter  be  adopted,  the  county  commissioners  of 
said  county  in  their  discretion  may  declare  any  water-course,  moun- 
tain, moimtain  ranges  or  parts  of  same,  and  also  other  natural  and 
sufficient  obstruction  along  the  line  of  said  stock  law  territory  to 
be  and  constitute  a  sufficient  stock  law  fence,  and  in  that  event  such 
water-course,  mountain,  moimtain  range  or  part  thereof  and  obstruc- 
tions so  declared  by  said  commissioners  shall  be  and  constitute  a  law- 
ful fence  to  all  intents  and  purposes. 
1901,  e.  542. 

1685.  Fence  built  by  assessment  on  land  owners.  For  the  pur- 
pose of  building  stock  law  fences,  the  board  of  commissioners  of 
the  county  may  levy  and  collect  a  special  assessment  upon  all  real 
property,  taxable  by  the  state  and  county,  within  the  county,  town- 
ship or  district  which  may  adopt  the  stock  law,  but  no  such  assess- 
ment shall  be  greater  than  one-fourth  of  one  per  centum  on  the  value 
of  said  property. 

Code,  s.  2824. 

517 


1686     FENCES  AND  STOCK  LAW— 7/7.  Stock  Law.     Ch.   35 

1686.    Land  condemned.    If  the  owner  of  any  land  shall  object 

to  the  building  of  aiiv  fence  lierein  allowed,  his  land,  not  exceeding 

twenty  feet  in  width,  shall  he  condemned  for  the  fenceway  as  land  is 

condennied  for  railroad  purposes  under  the  chapter  entitled  Kailroads. 

Code.  s.  2825. 


Note.     Allowing  stock  to  run  at  large  in  stock  law  territory,  sec  s.  3319. 
lEsapplication  of  funds  by  impounder,  see  s.  3312. 
Releasing  impounded  stoclc,  see  ss.  3411.  3310. 
Injuring  fences  and  leaving  gates  open,  see  ss.  3413,  3411. 

Persons  living  in  stock  law  territory  allowing  stock  to  run  at  large  outside 
said  territory,  see  s.  3322. 

Trespassing  on  lands  along  roadway,  see  s.  3321. 
Wilful  riding  or  driving  on  land,  see  s.  3320. 


CHAPTEE  36. 
GAMING  CONTRACTS. 

(Sections  1687—1691.) 

1687.  Gaming  and  betting  contracts  void.  All  wagers,  bets  or 

stakes  made  to  depend  upon  any  race,  or  upon  any  gaming  by  lot 
or  chance,  or  upon  any  lot,  chance,  casualty  or  unknown  or  contin- 
gent event  whatever,  shall  be  unlawful ;  and  all  contracts,  judgments, 
conveyances  and  assurances  for  and  on  account  of  any  money  or 
property,  or  thing  in  action,  so  wagered,  bet  or  staked,  or  to  repay, 
or  to  secure  any  money,  or  property,  or  thing  in  action,  lent  or 
advanced  for  the  purpose  of  such  wagering,  betting,  or  staking  as 
aforesaid,  shall  be  void. 

Code,  s.  2841,  2842;  E.  C,  c.  51,  ss.  1,  2;   1810,  c.  700. 

1688.  Players  and  betters  competent  witnesses.   Xo  person 

shall  be  excused  or  incapacitated  from  confessing  or  testifying  touch- 
ing any  money  or  property,  or  thing  in  action,  so  wagered,  bet  or 
staked,  or  lent  for  such  purpose,  by  reason  of  his  having  won,  jilayed, 
bet  or  staked  upon  any  game,  lot  or  chance,  casualty,  or  imknown 
or  contingent  event  aforesaid ;  but  the  confession  or  testimony  of 
such  person  shall  not  be  used  against  him,  in  any  criminal  prosecu- 
tion, on  account  of  such  betting,  wagering  or  staking. 

Code,  8.  2843;  R.  C,  c.  51,  s.  3. 

Note.     See  s.  1637. 

1689.  Certain  contracts  for  future  delivery  void.    Every  con- 
tract, whether  in  writing  or  not,  whereby  any  person  shall  agree  to 

518 


1689  GAMING  CONTEACTS.  Ch.  36 

sell  and  deliver  any  cotton,  Indian  corn,  wheat,  rye,  oats,  tobacco, 
meal,  lard,  bacon,  salt  pork,  salt  fish,  beef,  cattle,  sugar,  coffee, 
stocks,  bonds,  and  choses  in  action,  at  a  place  and  at  a  time  specified 
and  agreed  upon  therein,  to  any  other  person  whether  the  person  to 
Avhom  such  article  is  so  agreed  to  be  sold  and  delivered  shall  be  a 
party  to  such  contract  or  not  when,  in  fact,  and  notwithstanding  the 
terms  expressed  of  such  contract,  it  is  not  intended  by  the  parties 
thereto  that  the  articles  or  things  so  agreed  to  be  sold  and  delivered 
shall  be  actually  delivered,  or  the  value  thereof  paid,  but  it  is 
intended  and  understood  by  them  that  money  or  other  thing  of 
value  shall  be  paid  to  the  one  party  by  the  other,  or  to  a  third  party, 
the  party  to  whom  such  payment  of  money  or  other  thing  of  value 
shall  be  made  to  depend,  and  the  amount  of  such  money  or  other 
thing  of  value  so  to  be  paid  to  depend  upon  whether  the  market  price 
or  value  of  the  article  so  agreed  to  be  sold  and  delivered  is  greater 
or  less  at  the  time  and  place  so  specified  than  the  price  stipulated  to 
be  paid  and  received  for  the  articles  so  to  be  sold  and  delivered ;  and 
every  contract  commonly  called  "futures"  as  to  the  several  articles 
and  things  hereinbefore  specified,  or  any  of  thera,  by  whatever  other 
name  called,  and  every  contract  as  to  the  said  several  articles  and 
things,  or  any  of  them,  whereby  the  parties  thereto  contemplate  and 
intend  no  real  transaction  as  to  the  article  or  thing  agreed  to  be 
delivered,  but  only  the  payiuent  of  a  sum  of  money  or  other  thing 
of  value,  such  payment  and  the  amoimt  thereof  and  the  person  to 
whom  the  same  is  to  be  paid  to  depend  on  whether  or  not  the  market 
price  or  value  is  greater  or  less  than  the  price  so  agreed  .to  be  paid 
for  the  said  article  or  thing  at  the  time  and  place  specified  in  such 
contract,  shall  be  utterly  null  and  void ;  and  no  action  shall  be  main- 
tained in  any  court  to  enforce  any  such  contract,  whether  the  same 
was  made  in  or  out  of  the  state,  or  partly  in  and  partly  out  of  this 
state,  and  whether  made  by  the  parties  thereto  by  themselves  or  by 
or  through  their  agents,  immediately  or  mediately;  nor  shall  any 
party  to  any  such  contract,  or  any  agent  of  any  such  party,  directly 
or  remotely  connected  with  any  such  contract  in  any  way  whatever 
have  or  maintain  any  action  or  cause  of  action  on  account  of  any 
money  or  other  thing  of  value  paid  or  advanced  or  hypothecated  by 
him  or  them  in  connection  with  or  on  account  of  such  contract  and 
agency.  This  section  shall  not  be  construed  so  as  to  apply  to  any 
person,  firm,  corporation  or  his  or  their  agent  engaged  in  the  business 
of  manufacturing  or  wholesale  merchandising  in  the  purchase  or  sale 
of  the  necessary  commodities  required  in  the  ordinary  course  of  their 
business. 

1889,  c.  221,  s.  1 ;  190.5,  c.  .538,  s.  7. 


1C90  GAMING  COXTRACTS.  Ch.  30 

1690.  Procedure  and  evidence  under  preceding  section.  Proof 

that  anytbiug  of  vahie  agreci]  to  lx>  sold  and  dtdivered  was  not  actually 
delivered  at  the  time  of  making  the  agreement  to  sell  and  deliver,  and 
that  one  of  the  parties  to  such  agi-eenieut  deposited  or  secured,  or 
agreed  to  deposit  or  secure,  what  are  couuuonly  called  "margins," 
shall  constitute  prima  facie  evidence  of  a  contract  declared  void  by 
the  preceding  section. 

1889,  e.  221,  s.  2;  1905,  c.  538,  ss.  5,  7. 

1691.  invalidity  pleaded  shifts  burden  of  proof;  plea  and  proof 

not  used  in  criminal  action.  ^Vhcn  the  defendant  in  any  action 
pending  in  any  court  shall  allege  specitically  in  his  answer  that  the 
cause  of  action  alleged  in  the  complaint  is  in  fact  founded  upon  a 
contract  such  as  is  by  this  chapter  made  void,  and  such  answer  shall 
be  verified,  then  the  burden  shall  be  vipon  the  plaintiff  in  such  action 
to  prove  by  the  proper  evidence,  other  than  any  written  evidence 
thereof,  that  the  contract  svied  upon  is  a  lawful  one  in  its  nature  and 
purposes ;  and  the  defendant  may  likewise  pi-oduce  evidence  to  prove 
the  contrary:  Provided,  nevertheless,  that  any  allegation  or  state- 
ment of  fact  made  in  any  pleading  in  any  such  action,  or  the  evi- 
dence produced  on  the  trial  in  any  such  action,  shall  not  be  evidence 
against  the  party  making  or  prodiicing  the  same  in  any  criminal 
action  against  such  party. 
1889,  e.  221,  s.  2. 


Note.     For  punishment  for  dealing  in  futures,  see  ss,  3823-3826. 


1092  GEAXTS— 7.  To  Mliom  Issued.  Ch. 


CHAPTER  37. 
GRANTS. 

Sections. 
I.     To  whom  issued,  1692 

II.     What  may  be  granted,  '       1693—1699 

III.  Entiv-taker,  1700—1706 

IV.  Entries,  1707—1712 
V.     Surveys,                                                                   1713—1726 

VI.  Grants,  1727—1735 

VII.  Correcting,  1736—1747 

VIII.  Vacated,  1748—1750 

IX.  Phosphate  beds,  1751—1757 

I.     To  Whom  Issued. 

1692.  Citizens  and  bona  fide  residents.   Any  citizen  of  this 

state,  and  all  persons  wIkj  have  or  shall  come  into  the  state  with  the 
bona  fide  intent  of  becoming  residents   and   citizens   thereof,   shall 
have  the  right  and  privilege  of  making  entries  of,   and  obtaining 
grants  for,  vacant  and  imappropriated  lands. 
Code,  s.  2754;   1869-70,  c.  19,  s.  1. 

II.     What  May  be  Granted. 

1693.  Land  subject  to.  All  vacant  and  unappropriated  lands, 
belonging  to  the  .state,  shall  be  subject  to  entry  by  any  citizen  thereof, 
in  the  manner  hereinafter  provided,  except — 

1.  Lands  covered  by  navigable  waters. 

2.  Lands  covered  by  the  waters  of  any  lake,  or  which,  though 
now  covered,  may  hereafter  be  gained  therefrom  by  the  recession, 
draining,  or  diminution  of  such  waters,  or  have  been  so  gained  here- 
tofore, and  not  lawfully  entered. 

3.  Marsh  or  .swamp  land,  where  the  quantity  of  land  in  any  one 
marsh  or  swamp  exceeds  two  thousand  acres,  or  where,  if  of  less 
quantity,  the  same  has  been  surveyed  by  the  state,  or  by  the  state 
board  of  education,  with  a  view  to  draining  and  reclaiming  the 
same. 

Code,  s.  2751;   E.  C,  c.  42,  s.   1;   1854-5,  c.  21. 

1694.  What  swamp  lands  may  be.  Marsh  or  swamp  lands,  lying 
ill  a  swamp  where  the  quantity  of  land  in  that  swamp  or  marsh  does 
not  in  the  whole  swamji  or  marsh  exceed  two  thousand  acres,  and 

521 


1G94  GRAXTS— //.    ]Vh(if  Ma;/  he  Granted.  Ch.   37 

which  has  not  been  surveyed  by  the  state  or  state  board  of  education, 
and  marsh  or  swamp  lands,  nnsurveyed  as  aforesaid,  not  exceeding 
fifty  acres  in  one  body,  though  lying  within  a  marsh  or  swamp  of  a 
greater  number  of  acres  than  two  thousand,  may  be  entered,  when 
the  same  shall  be  situated  altogether  between  the  lines  of  tracts  here- 
tofore granted. 

Code,  s.  2751;  R.  C,  c.  42,  s.  1;   1854-5,  c.  21. 

1695.  Swamp  lands  defined.  The  words  "marsh  and  swamp 
land"  wherever  employed  in  this  chapter,  and  the  words  "swamp 
lands"  employed  in  the  statutes  creating  the  literary  fund  and  liter- 
ary board  of  Xorth  Carolina  and  the  state  board  of  education  of 
North  Carolina,  or  in  any  act  in  relation  thereto,  shall  be  construed 
to  include  all  those  lands  which  have  been  or  may  now  be  kno^vn 
and  called  "swamp"  or  "marsh"  lands,  "pocosin  bay,"  "briary  bay" 
and  "savanna,"  and  all  lands  which  may  be  covered  by  the  waters 
of  any  lake  or  pond. 

1891,  c.  302. 

1696.  Land  covered  by  water,  for  wharves.   Persoms  owning 

lands  on  any  navigable  sound,  river,  creek  or  arm  of  the  sea,  for 
the  purpose  of  erecting  wharves  on  the  side  of  the  deep  waters 
thereof,  next  to  their  lands,  may  make  entries  of  the  lands  covered 
by  water,  adjacent  to  their  own,  as  far  as  the  deep  water  of  such 
sound,  river,  creek,  or  arm  of  the  sea,  and  obtain  title  as  in  other 
cases.  But  persons  making  such  entries  shall  be  confined  to  straight 
lines,  including  only  the  fronts  of  their  own  tracts,  and  shall  in  no 
respect  obstruct  or  impair  navigation.  When  any  such  entry  shall 
be  made  in  front  of  the  lands  in  any  incorporated  to^^•n,  the  town 
corporation  shall  regulate  the  line  on  deep  water,  to  which  wharves 
may  be  built.  This  shall  not  affect  existing  rights.  For  all  lands 
thus  entered  there  shall  be  paid  into  the  treasui-y  not  less  than  one 
dollar  per  acre.  AVhen  any  person  shall  have  erected  a  wharf  on 
public  lands  of  the  description  aforesaid,  before  the  first  day  of 
January,  one  thousand  nine  hundred  and  three,  such  person  shall 
have  liberty  to  enter  said  land,  including  his  wharf,  under  the 
restrictions  and  upon  the  terms  above  set  forth:  Provided,  no  land 
covered  by  water  shall  be  subject  to  entry  within  thirty  feet  of  any 
wharf,  pier  or  stand  used  as  a  wharf  already  in  existence,  or  which 
may  hereafter  be  erected  by  any  person  on  his  own  land  or  land 
under  his  control,  or  on  an  extended  line  thereof;  but  land  covered 
by  water  as  aforesaid  for  the  space  of  thirty  feet  from  the  landing 
place  or  line  of  any  wharf,  pier  or  stand  used  as  a  wharf,  as  afore- 
said, shall  remain  open  for  the  free  ingress  and  egress  of  said  owner 
and  other  persons  to  and  from  said  wharf,  pier  or  stand :  Provided 


l(;!l(3  GRAFTS— 11.   What  Maij  he  Granted.  Ch.  37 

further,  no  person  shall  be  allowed  to  enter  and  obtain  a  grant  for 
;iny  land  in  the  waters  of  Onslow  county,  in  which  the  tide  ebbs  and 
tlows,  within  thirty  feet  of  the  shore  at  low-water  mark,  unless  the 
tiiterer  shall  be  the  owner  of  the  adjacent  shore. 

Code,  s.  2751;  R.  C,  c.  42,  s.  1;  1854-5,  c.  21;  1889,  c.  555;  1893.  c.  17;  1893, 
c.  4;   1893,  e.  349;  1901,  c.  364;  1891,  c.  532. 

1697.  Fisheries  established.  Whenever  any  person  shall  acquire 
title  to  lands  covered  by  navigable  water  as  required  by  law  for 
wharves,  the  owner  or  person  so  acquiring  title  shall  have  the  right 
to  establish  fisheries  upon  said  lands ;  but  this  right  shall  not  author- 
ize any  person  to  obstruct  navigation. 

Code,  s.  2752;   1874-5,  c.   183,  ss.  1,  6. 

T698.  Prior  right  of  fishery  in  whom.  \Yhenever  the  o%\Tiers  of 

lands  covered  by  navigable  waters  shall  improve  the  same  by  clear- 
ing oif  and  cutting  therefrom  logs,  roots,  stumps  or  other  obstructions, 
so  that  the  said  land  may  be  used  for  the  purpose  of  drawing  or 
hauling  nets  or  seines  thereon  for  the  purpose  of  taking  or  catching 
fish,  then  and  in  that  case  the  ])erson  who  makes  or  causes  to  be 
made  the  said  improvements,  his  heirs  and  assigiis,  shall  have  prior 
right  to  the  use  of  the  land  so  improved,  in  drawing,  hauling,  drift- 
ing or  setting  nets  or  seines  thereon,  and  it  shall  be  unlawful  for  any 
person,  without  the  consent  of  such  owner,  to  draw  or  haul  nets  or 
seines  upon  the  land  so  improved  by  the  owner  thereof  for  the  pur- 
pose of  drawing  or  hauling  nets  or  seines  thereon.  This  section  shall 
apply  where  the  owner  of  sTich  lands  shall  erect,  or  shall  have  erected, 
platforms  or  structures  of  any  kind  thereon  to  be  used  in  fishing 
with  nets  and  seines. 

Code,  s.  2753;   1874-5,  c.  183,  ss.  2,  3,  4. 

1699.  What  void;  not  color  of  title.  Every  entry  made,  and 
every  grant  issued,  for  any  lands  not  authorized  by  this  chapter  to 
be  entered  or  granted,  shall  be  void ;  and  every  grant  of  land  made 
since  the  sixth  day  of  March,  one  thousand  eight  hundred  and  ninety- 
three,  in  pursuance  of  the  statutes  regulating  entries  and  gTants 
shall,  if  such  land  or  any  portion  thereof  has  been  heretofore  granted 
by  this  state,  so  far  as  relates  to  any  such  land  heretofore  granted,  be 
absolutely  void  for  all  purposes  whatever,  shall  confer  no  rights 
whatever  upon  the  grantee  or  grantees  therein  or  those  claiming 
under  such  grantee  or  grantees,  and  shall  in  no  case  and  under  no 
circumstances  constitute  any  color  of  title  whatsoever  to  any  person 
Avhomsoever. 

Code,  s.  2755;   1893,  c.  490;  R.  C,  c.  42,  s.  2. 


1700  GEANTS— 7/7.  Entry-tal-er.  Cli.  37 

III.        EXTKY-TAKER. 

1700.  How  elected;  term  of  office.  The  board  of  commissioners 
of  the  several  enunties  slinll  elect  one  person  to  receive  entries  of 
claims  for  lands  within  each  county;  and  such  entry-taker  shall 
hold  his  office  for  four  years. 

Code,  s.  '2756. 

1701.  Register  of  deeds  acts  as,  when.  When  a  vacancy  exists 
in  the  office  of  entry-taker,  the  register  of  deeds  shall  act  as  entry- 
taker  until  such  vacancy  is  filled  by  an  election  by  the  commissioners. 
The  register  of  deeds,  in  such  case,  shall  take  charge  of  the  books 
belonging  to  the  office,  shall  discharge  all  the  duties  and  receive  the 
emoluments,  and  shall  be  subject  to  the  rules,  regulations  and  penal- 
ties prescribed  for  entry-takers. 

Code,  s.  2757;   1868-9,  c.  100,  s.  2;   1868-9,  c.  173,  s.  2. 

1 702.  Who  issues  warrant  on  death  of  entry-taker.  In  all  cases 

where  an  entry  shall  be  made,  and  the  entry-taker  shall  die  or  resign 
before  a  warrant  shall  be  issued  thereupon,  his  successor  shall  issue  a 
warrant. 

Code,   s.   2772;   R.   C,  c.  42,  s.   15;    1835,  c.   19. 

1703.  Oath  of  office;  fees.  The  entry-taker  shall  take  the  oath 
of  office  and  receive  the  fees,  and  no  other,  prescribed  in  the  chapters 
respectively  entitled  Oaths  and  Salaries  and  Fees. 

Code,  s.  2760;   1868-9,  c.  173,  s.  5. 

1704.  Office  of  entry-tal<er  at  courthouse.  The  entry-taker  shall 
keej)  his  office  at  the  courthouse  of  his  county,  or  within  one  mile 
thereof,  on  pain  of  forfeiting  one  hundred  dollars  to  the  county,  to  be 
sued  for  by  the  county  treasurer. 

Code.  s.  2759;   1868-9,  c.  173,  s.  4. 

1705.  IVIal<eS  annual  returns.  P^ery  entry-taker  shall  make  re- 
turn to  the  secretary  of  state  annually,  on  the  first  day  of  January, 
of  all  lands  entered  with  him,  under  a  penalty  of  two  hundred  dol- 
lars. 

Code,  s.  2775;  R.  C,  c.  42,  s.  18;   1796,  c.  455,  s.  9;   1881,  c.  265. 

1706.  Penalty  failing  to  make  returns,  how  recovered.   The 

secretary  of  state  shall  furnish  the  attorney  general,  at  every  s]iring 
term  of  the  superior  court  of  Wake  county,  with  a  certificate  of 
failure  in  every  case  where  an  entry-taker  shall  fail  to  make  return 
according  to  law ;  and  the  attorney  general  shall  move  for  judgment 


1706  GRAN'TS— 777.  Entry-iakev.  Cli.  37 

against  siich  entry-taker  and  his  sureties,  and  the  courts  sliall  give 
judgment  accordingly. 

Code,  s.  2776;   R.  C,  c.  42,  s.   19;   1833,  c.  15. 

IV.     Entries. 

1707.  In  writing,  and  describe  land.  The  claimant  of  land  shall 

produce  to  the  entry-taker  a  writing,  signed  by  such  claimant,  setting 
forth  where  the  land  is  situated,  the  nearest  water-courses  and 
remarkable  places,  and  such  water-courses  and  remarkable  places  as 
may  be  therein,  the  natural  boundaries  and  the  lines  of  any  other 
person,  if  any,  wdiich  divide  it  from  other  lands ;  and  every  such 
writing  shall  be  one-quarter  sheet  of  paper  at  least. 

Code,  s.  2765;  R.  C,  c.  42,  s.  11;  1777,  c.  114,  s.  5;  1783,  c.  185,  s.  U;  1885,  o. 
132;  1891,  e.  70;  1893,  cc.  120,  270;  1903,  c.  272,  s.  3. 

1708.  Duty  of  entry-taker.  The  entry-taker  shall  immediately 
endorse  the  same  with  the  name  of  the  claimant,  the  niunber  of 
acres  claimed,  and  date  of  the  entry ;  and  shall  copy  the  same  in  a 
book  well  bound,  and  ruled  with  a  large  margin  into  spaces  of  eqvial 
distance,  each  space  to  contain  one  entry  only,  and  every  entry  to 
be  made  in  the  order  of  time  in  which  it  shall  be  received,  and  num- 
bered in  the  margin.  The  entry-taker  shall  thereupon  cause  a  copy 
of  the  entry  to  be  posted  for  thirty  days  at  three  public  places  in 
the  township  or  townships  in  which  the  land  covered  by  the  entry 
is  located.  A  copy  of  the  entry  shall  also  be  posted  for  thirty  days 
at  the  coiirthoiTse  door  of  the  county  in  which  such  land  lies,  and 
advertised  for  thirty  days  in  a  newspaper  piiblished  at  the  county 
seat  of  such  county.  If  there  be  no  newspaper  published  in  such 
county,  then  the  advertisement  provided  for  shall  be  made  in  the 
nearest  newspaper. 

Code,  s.  2765;    1903,  c.  272,  s.   3. 

1709.  Protest  filed,  when  and  by  whom.   If  any  person  shall 

claim  title  to  or  an  interest  in  the  land  covered  bj'  the  entry,  or  any 
part  thereof,  he  shall,  within  the  time  of  advertisement  as  above  pro- 
vided, file  his  protest  in  writing  with  the  entry-taker  against  the 
issuing  of  a  warrant  thereon ;  and  upon  the  filing  of  such  protest, 
the  entry-taker  shall  certify  copies  of  the  entry  and  protest  to  the 
superior  court,  and  thereupon  a  notice  shall  be  issued  by  the  clerk 
of  the  superior  court  to  the  claimant,  commanding  him  to  appear 
at  the  next  term  of  said  court  and  show  cause  why  his  entry  shall 
not  be  declared  inoperative  and  void. 
Code,  s.  2765;   1903,  c.  272.  s.  3. 


1710  GRANTS— ZF.  EiUries.  Ch.  37 

1710.  When  entry  lapses,  subsequent  entry  valid.   Wheuever 

an  entry  uf  laml  shall  lie  made  in  any  entry-taker's  ottiee,  ami  the 
entercr  shall  fail  to  have  the  land  surveyed  and  pay  the  price  for  the 
same,  within  the  time  limited  by  law,  any  person  who  may  have  made 
a  subsequent  entry  for  the  same  land  may  have  the  same  surveyetl 
and  pay  the  price  and  have  a  grant. 

Code,  s.  2767;   R.  C,  c.  42,  s.  9;   1809,  c.  771. 

1711.  When  for  benefit  of  entry-taker.  If  any  entry-taker  shall 

desire  to  make  an  entry  in  his  own  name,  the  same  shall  be  made 
in  its  proper  place,  before  a  JTistice  of  the  peace  of  the  county,  not 
being  a  surveyor  or  assistant ;  which  entry  the  justice  shall  return 
to  the  next  meeting  of  the  board  of  county  commissioners,  who  shall 
insert  it;  and  every  entry  made  by  or  for  such  entry-taker,  in  any 
other  manner,  shall  be  void. 

Code,   s.  2773;   R.  C,  c.  42,  s.   16;    1777,  c.   114,  s.    17. 

1712.  Lapsed  entries,  not  renewed  within  one  year.  Xo  lands 

entered  on  the  books  of  the  entry-taker,  the  entry  of  which  shall 
be  suffered  to  lapse  by  nonpayment  of  the  price  thereof,  shall  be 
re-entered  within  one  year  after  the  time  at  which  such  entry  shall 
lapse,  by  the  person  in  whose  name  such  entry  was  made,  but  such 
re-entry  shall  be  void. 

Code,  s.  2768;   R.  C,  c.  42,  s.   10. 

V.     Surveys. 

1713.  When  warrant  for  survey  issued.  If  no  protest  be  filed, 

or  where  the  protest  is  tiled,  and  the  right  of  the  claimant  to  make 
the  entry  is  sustained,  the  entry-taker  shall  deliver  to  the  party  a 
copy  of  the  entry  with  its  proper  number  and  a  warrant  to  the  sur- 
veyor to  survey  the  same,  which  warrant  shall  contain  a  copy  of 
the  entry  with  its  number  and  date,  and  a  certificate  that  notice  has 
been  given  as  above  provided,  and  that  no  protest  has  been  filed,  or 
that  protest  has  been  filed  and  that  the  court  has  decided  in  favor  of 
the  claimant.  Each  warrant  shall  be  delivered  to  the  surveyor  in  the 
order  of  time  in  which  the  entry  was  made. 
Code,  s.  2765;   1903,  c.  272,  s.  3. 

1714.  Duplicate  warrants.  When  any  person  shall  duly  make 
an  entry  of  laixls  which  shall  not  have  become  void  by  lapse  of  time, 
and  upon  which  tlu^  entry-taker  shall  issue  his  warrant  of  survey, 
and  th((  same  be  lost  by  accident,  the  (mtry-taker,  on  due  ])roof  being 
made  to  his  satisfaction,  by  affidavit  of  the  clainuuit  or  the  surveyor 
or  dei)uty  surveyor,  may  issue  a  (ln|ilieate  warranl  uf  survey,  of  the 


1714  GRANTS-— F.    Surveys.  Ch.   37 

same  tenor  and  date,  taking  care  to  set  forth,  on  the  face  of  said 
warrant,  that  the  same  is  a  duplicate;  in  which  case  such  warrant 
shall  be  made  as  valid  as  the  original. 

Code,  s.  2771;  R.  C,  c.  42,  s.  U;   1814,  e.  878,  s.  1. 

1715.  Order  of  survey.  The  surveyor  shall  survey  all  entries  of 
land  according  to  the  priority  of  entry,  paying  due  respect  to  the 
number  of  each  warrant;  and  every  grant  obtained  by  any  subse- 
quent entry,  otherwise  than  is  by  this  chapter  directed,  shall  be  void : 
Provided,  nothing  herein  shall  be  construed  to  jjrevent  any  person 
who  shall  make  a  subsequent  entry  from  surveying  and  obtaining  a 
grant,  as  the  law  directs,  for  all  such  surplus  land  as  shall  remain, 
after  the  enterer  of  such  land  hath  surveyed  his  entry  as  aforesaid. 

Code,  s.  2770;  E.  C,  c.  42,  s.  13;   1787,  c.  279. 

1716.  How  made.  Every  county  surveyor,  upon  receiving  the 
copy  of  the  entry  and  order  of  survey  for  any  claim  of  lands,  shall, 
within  ninety  days,  lay  off  and  survey  the  same  agreeably  to  this 
chapter ;  and  make  thereof  two  fair  plots,  the  scale  whereof  and  the 
number  of  the  entry  shall  be  mentioned  on  such  plots;  and  shall  set 
down  in  words  the  beginning,  angles,  distances,  marks  and  water- 
courses, and  other  remarkable  places  crossed  or  touched  by  or  near 
to  the  lines  of  such  lands,  and  also  the  quantity  of  acres ;  and  land 
lying  on  any  navigable  Avater  shall  be  surveyed  in  such  manner  that 
the  water  shall  form  one  side  of  the  survey,  and  the  land  be  laid  off 
back  from  the  water. 

Code,  s.  2769;   1903,  c.  272,  s.  4:  R.  C,  c.  42,  s.  12;   1777,  c.  114,  s.  10. 

1717.  Sworn  Chainbearers.  No  survey  for  the  purpose  of  obtain- 
ing a  grant  shall  be  made  until  the  chainbearers  shall  be  sworn  to 
measure  justly  and  truly,  and  to  deli\-er  a  true  account  thereof  to 
the  surveyor.  The  chainbearers  shall  actually  measure  the  land  sur- 
veyed.    The  surveyor  is  empowered  to  administer  the  oath. 

Code,  s.  2769;   R.  C,  c.  42,  s.   12;   1777,  c.  114,  s.   10. 

1718.  Plots  made  and  transmitted  to  secretary  of  state.  The 

surveyor  shall,  within  one  year,  tr;insmit  the  ]ilnts,  together  with  the 
warrant  or  order  of  survey,  to  the  office  of  the  secretary  of  state, 
or  deliver  them  to  the  claimant. 

Code,  s.  2769;  R.  C,  e.  42,  s.  12;   1777,  c.  114,  s.  10. 

1719.  Special  surveyor,  when  and  how  appointed.   When  the 

office  of  county  siTrveyor  is  vacant,  the  county  connnissioners  may 
appoint  a  S])ecial  surveyor  to  survey  any  lands  that  may  be  entered ; 
and  the  plots  and  certificates  of  such  special  surveyor,  accompanied 


1719  GEANTS— r.  Surveys.  Cli.  37 

by  a  copy  of  the  order  of  the  county  commissioners  appointing  him, 
shall  be  held  valid,  as  if  done  by  a  county  surveyor  duly  elected. 

Code,   s.   2709;    R.   C,  c.   42.   s.    12;    1777,   c.    114,   s.    10. 

1720.  May  appoint  deputies.  Every  surveyor  may  appoint  depu- 
ties, who  shall,  previous  to  entering-  on  the  duties  of  their  office,  he 
qualified  in  a  similar  manner  with  the  surveyor;  and  the  surveyor 
making  such  appointment  shall  be  liable  for  the  conduct  of  such 
deputies,  as  for  his  own  conduct  in  office. 

Code,  s.  2763;  R.  C,  c.  42,  s.  6;   1779,  c.  140,  s.  5. 

1721.  When  county  surveyor  interested.   When  a  county  sur- 

veytir  shall  wish  to  have  lands  surveyed  in  a  county  where  he  acts 
as  principal  surveyor,  for  the  jDurpose  of  obtaining  a  gi-ant,  the 
board  of  county  commissioners  of  said  county  shall  appoint  some 
person  to  make  the  survey,  and  the  entry-taker  shall  direct  his  war- 
rant of  survey  to  such  person ;  and  all  certificates,  surveys  and  plots 
of  the  same  shall  be  made  under  the  same  regulations  as  prescribe 
the  duty  of  the  county  surveyor  in  similar  cases. 
Code,  s.  2774;  R.  C,  c.  42,  s.  17;  1828,  e.  23. 

1722.  Record  of,  kept  by  surveyor,  in  register's  office.   The 

county  coimnissioners  of  the  several  counties  of  the  state  shall  pro- 
vide a  suitable  book  or  books  for  recording  of  surveys  of  entries  of 
land  to  be  known  as  Record  of  Surveys,  to  be  kept  in  the  office  of 
register  of  deeds  as  other  records  are  kept.  And  such  record  shall 
have  an  alj^habetical  and  numerical  index,  the  numerical  inde.x  to  run 
consecutively.  And  it  shall  be  the  duty  of  every  county  surveyor  or 
his  deputy  surveyor  who  makes  a  survey  to  record  in  siich  book  a 
perfect  and  complete  record  of  all  surveys  of  lands  made  upon  any 
warrant  issued  upon  any  entry,  and  date  and  sign  .same  as  of  the  day 
such  survey  was  made,  whether  such  survey  was  made  by  him  before 
or  after  the  second  day  of  March,  one  thousand  nine  hundred  and  five. 
1905,  c.  242. 

1723.  What  record  to  show;  received  as  evidence.  All  sur- 
veys so  recorded  in  such  Imok  shall  sliow  the  luuuhcr  of  the  tract 
of  land,  the  name  or  names  of  the  party  entering,  and  the  name 
of  the  assigiiee  if  there  be  any  assignee,  and  shall  be  duly  in- 
dexed, both  alphabetically  and  numerically,  iii  such  record  in  the 
name  or  names  of  the  party  making  the  entry,  and  the  name  of  the 
assignee  if  there  be  any  assignee.  kSuch  record  of  any  surveyor  or 
dc]iuty  surveyor  when  so  made  slinll  be  read  in  evidenci'  in  any  action 
or  ])roceeding  in  any  C(un't :  Provided,  that  if  such  record  differs  from 
the   oriiiinal    certificates   of   survev   jicretoforc    made   nr   on    file    in 


1723  GEANTS— y.  Surveys.  Ch.   37 

office  of  secretary  of  state,  such  original  or  certified  cojiy  of  the  cer- 
tificate in  secretary  of  state's  office  sliall  control. 

1905,  e.  242,  ss.  2.,,  3,  6. 

1724.  Fees.  For  recording  and  indexing  such  surveys  the  siir- 
vej'or  may  charge  twenty-five  cents,  which  shall  be  paid  by  the  party 
for  whom  the  siuTcy  is  made ;  and  any  surveyor  shall  not  be  required 
to  make  any  survey  until  his  fees  provided  by  law  are  paid,  including 
the  twenty-five  cents  for  recording  and  indexing. 

190.5,  c.  242,  s.  4. 

1725.  Former  surveys  recorded;  indexed;  fee.  Where  any  ex- 
county  sui'veyor  is  alive  and  has  correct  minutes  or  notes  of  surveys 
of  land  on  entries  made  by  him  during  his  term  of  office,  it  shall  be 
lawful  for  him  to  record  and  index  such  survey  in  such  record  of 
surveys,  and  the  county  commissioners  shall  pay  for  such  services  ten 
cents  for  each  survey  so  recorded  and  indexed. 

1905,  c.  242,  s.  2. 

1726.  Penalty  for  failure  to  perform  duty.  Any  county  surveyor 

or  deputy  surveyor  failing  to  make  such  record  of  any  survey  within 
ten  days  after  he  makes  a  survey  shall  forfeit  and  pay  to  any  party 
who  may  sue  for  the  same  two  hundred  dollars,  and  be  subject  to  be 
removed  from  office  by  the  board  of  county  commissioners,  and  if  any 
surveyor  is  removed  the  county  commissioners  shall  appoint  his  suc- 
cessor, and  all  papers  and  records  of  a  public  nature  in  the  possession 
of  such  surveyor  so  removed,  or  who  may  die,  shall  be  turned  over  to 
his  successor  in  office. 
1905,  c.  242,  s.  5. 

VI.     Gkants. 

1727.  When  secretary  of  state  may  withhold  grant.  When  ap- 
plication is  made  for  a  grant  if  the  secretary  of  state  has  reason 
to  believe  that  the  land  covered  by  any  entry  and  the  surveys  made 
in  pursuance  of  the  same  is  the  property  of  the'  state  board  of  educa- 
tion, he  may,  in  his  discretion,  withhold  the  issuance  of  a  grant  for 
same  until  the  engineer  of  the  state  board  of  education  or  stirveyor 
appointed  by  said  board  shall  have  examined  into  the  matter  and 
made  his  report.  And  if  said  engineer  or  surveyor  shall  report  that 
the  lands  in  question  are  the  property  of  the  state  board  of  educa- 
tion and  not  subject  to  entry,  the  secretary  of  state  shall  not  issue 
a  grant  on  such  entry  and  suiweys.  If  the  secretary  of  state  shall 
have  reason  to  believe  that  the  land  for  which  a  grant  is  sought  has 
already  been  granted  and  does  not  belong  to  the  state,  he  shall  not 

Rev.  Vol.  I — 30  520 


1727  GEANTS— y/.   Grants.  Ch.  37 

issiie  grant  for  the  same  \mtil  it  appears  to  his  satisfaction  that  the 
land  does  helong  to  the  state  and  is  subject  to  entry. 

1903,  c.  272,  s.  3.  » 

1728.  On  what  grant  issued.  No  grant  shall  issue  on  the  treas- 
urer's receipt  for  the  money;  but  the  auditor  shall  make  out  and 
deliver  to  the  secretary  of  state  a  certificate,  conformable  to  eacii 
receipt  bN'  him  countersigned,  on  which  the  secretary  shall  issue  the 
grant. 

Code,  s.  2778;   R.  C,  c.  42,  s.   21:    1799,  c.   525,  s.  4. 

1729.  When,  how  and  to  whom  issued.  The  secretary,  on  appli- 
cation of  claimants,  shall  make  out  gTants  for  all  surveys  returned 
to  his  otRce,  which  grants  shall  be  authenticated  by  the  governor, 
countersigned  by  the  secretary  and  recorded  in  his  office.  The  date 
of  the  entry  shall  be  inserted  in  every  grant,  and  no  grant  shall 
issue  upon  any  survey,  unless  the  same  be  signed  by  the  surveyor  of 
the  county ;  and  every  person  obtaining  a  grant  for  land  shall,  within 
two  years  after  such  grant  shall  be  perfected  as  aforesaid,  cause  the 
same  to  be  registered  in  the  county  where  the  land  shall  lie ;  and 
any  person  may  cause  to  be  there  registered  any  certified  copy  of  a 
gTant  from  the  oflice  of  the  secretary  of  state,  which  shall  have  the 
same  effect  as  if  the  original  had  been  registered.  Upon  certificate 
from  the  entry-taker  that  the  claimant  has  assigned  his  interest 
under  the  entry,  a  grant  shall  be  issued  in  the  name  of  the  assignee: 
Provided,  that  the  said  assignee  is  a  citizen  and  resident  of  this  state, 
or  shall  have  come  into  the  state  with  the  bona  fide  intent  of  becom- 
ing a  resident  and  citizen  thereof. 

Code,  s.  2779;  R.  C,  c.  42,  s.  22;  1783,  c.  185,  s.  14;  1796,  c.  455;  1799, 
c.  52.5,  s.  2. 

1730.  Claimant  dying,  right  descends,  in  case  of  the  death  of 

any  person  having  made  an  entry  of  lands,  ]iending  the  same  or 
before  making  out  the  grant,  the  secretary  shall  issue  the  grant  in  the 
name  of  the  decedent;  and  those  interested,  as  heirs  at  law,  devisees, 
tenants  in  dower,  by  tlii  courtesy  or  other\^se,  shall  have  the  same 
estate  as  if  the  land  had  been  granted  during  the  life  of  the  decedent. 

Code,  s.  2780;  R.  C,  c.  42,  s.  23;  ni5,  c.  44,  s.  6;  1798,  c.  493,  s.  6. 

1731.  When  entry  price  paid.  All  entries  of  land  shall,  in  every 
event,  be  ]3aid  for  within  one  year  from  the  date  of  entry,  iinless  a 
protest  bo  filed  to  the  entry,  in  wliich  event  they  sliall  Ix^  paid  for 
within  twelve  months  after  final  judgment  on  the  ]irotest ;  and  all 
entries  of  land,  not  thus  paid  for,  shall  become  null  and  void,  and 
may  be  entered  by  any  other  person. 

Code,  s.  2766;  E.  C,  c.  42,  s.  8;   1854-5,  c.  49. 

530 


1732  GEANTS— 7/.  Grants.  Ch.  37 

1732.  Price  paid  state  treasurer,  when.   The  state  treasurer 

shall  receive  the  nidiiey  for  vacant  and  unappropriated  lands  upon 
the  presentation  to  him  of  the  certificate  of  the  secretai\y  of  state, 
setting  forth  tlie  nnmher  and  date  of  the  entry,  and  the  quantity  of 
acres  found  by  the  surveyor  to  be  vacant,  as  the  same  may  ajjpear 
by  the  returns  made  to  him  from  the  surveyor  or  entry-taker,  or 
from  the  entry-taker's  warrant,  or  the  plots  of  survey. 
Code,  s.  2777;  R.  C,  c.  42,  s.  20;  1827,  c.  23;   1829,  c.  30. 

1733.  Price  of  larui;  may  be  sold  to  other  than  claimant.  Not 

less  than  fifty  cents  shall  be  paid  to  the  state  treasurer  fur  e\'crv  acre 
of  land  that  may  be  entered,  and  the  secretary  of  state  may  in  his 
discretion  charge  a  greater  sum,  and  is  authorized  to  issiie  a  grant  to 
any  person  other  than  the  claimant  if  the  claimant  refuses  to  pay 
the  sum  bona  fide  offered  by  such  other  person.  In  case  the  land 
is  sold  to  a  person  other  than  the  claimant,  the  purchaser  of  the 
land  shall,  in  addition  to  the  amount  paid  for  the  land,  pay  to  the 
secretary  of  state  an  amount  sufficient  to  repay  to  the  claimant  all 
sums  expended  by  him  in  making  the  entry  and  advertising  same. 
And  the  secretary  of  state  shall  pay  over  such  sum  to-the  el-aimant. 
Code,  s.  2764;   1903,  c.  272,  s.  2;   1885,  c.  185. 

1734.  Plot  attached  to  grant.  The  secretary  of  state  shall,  on 
receipt  of  the  plots,  file  one  in  his  oflice;  the  other  shall  be  attached 
to  the  grant. 

Code,  s.  2769;  R.  C,  c.  42,  s.  12;   1777,  c.  114,  s.  10. 

1735.  Number  of  survey  put  in  grant.  It  shall  be  the  duty  of 

the  secretary  of  state,  upon  issuing  a  grant,  to  place  in  the  grant 
issTied  the  number  of  the  survey  from  the  certifiicate  of  survey  upon 
which  the  grant  is  founded. 
1889,  e.  522. 

VII.       COEEECTING. 

1736.  County  line  changed  after  entry,  before  grant  and  regis- 
tration, grant  valid.  All  gTants  issued  on  entries  for  lands  which 
were  entered  in  one  county,  and  before  the  issuing  of  the  grants 
therefor,  or  the  registration  of  said  grants,  by  the  change  of  former 
county  lines,  or  the  establishment  of  new  lines,  the  lands  so  entered 
were  placed  in  a  county,  or  in  counties  different  from  that  in  which 
they  were  sitiuite,  and  the  grants  were  registered  in  the  county  where 
the  entry,  or  entries  were  made,  shall  be  good  and  valid,  and  the  reg- 
istration of  said  grants  shall  have  the  same  force  and  effect  as  if  they 
had  been  registei-ed  in  the  county  or  eoimties  Avhere  the  lands  were 
situate;    and    any    and    all    persons    claiming    under    and    by    said 


1736  GRAXTS— 777.  Correcting.  Ch.  37 

grants,  may  have  them,  or  a  certified  copy  of  the  same,  from  the 
office  of  the  secretary  of  state,  or  from  the  ofiice  of  the  register  of 
deeds  when  they  had  been  erroneonsly  registered,  recorded  in  the 
office  of  the  register  of  deeds  of  the  county,  or  counties  where  the 
lands  lie,  and  snch  registration  shall  have  the  same  force  and  eifect 
as  if  the  said  grants  had  been  duly  registered  in  said  county  or 
counties. 
1897,  e.  37. 

1737.  Entries  in  wrong  county,  grant  valid.   Whereas,  many 

citizens  of  the  state,  on  making  entries  of  lands  near  the  linos  of 
the  county  wherein  they  reside,  either  for  want  of  proper  knowledge 
of  the  land  laws  of  the  state,  or  not  knowing  the  county  lines,  have 
freqxiently  made  entries  and  extended  their  surveys  on  such  entries 
into  other  counties  than  those  wherein  they  were  made,  and  obtained 
grants  on  the  same ;  and  whereas,  doubts  have  existed  with  respect 
to  the  validity  of  the  titles  to  lands  situated  as  aforesaid,  so  far  as 
they  extend  into  other  counties  than  those  where  the  entries  were 
made ;  for  remedy  whereof,  it  is  hereby  declared,  that  all  grants 
issued  on  entries  made  for  lands  situated  as  aforesaid,  shall  be  good 
and  valid  against  any  entries  thereafter  made  or  grants  issued  thereon. 
Code,  s.  2784;  R.  C,  c.  42,  s.  27;   1805,  c.  675;  1834,  p.  17. 

1738.  How  errors  in  surveys  or  plots  corrected.  Whenever  there 

may  be  an  error  by  the  surveyor  in  plotting  or  making  out  the  cer- 
tificate for  the  secretary's  olfice,  or  the  secretary  shall  make  a  mistake 
in  making  out  the  courses  agi'eeable  to  said  returns,  or  misname  the 
claimant,  or  make  other  mistake,  so  as  such  claimant  shall  be  injured 
thereby,  the  claimant  may  prefer  a  petitioij  to  the  superior  co\irt  of 
the  county  in  which  the  hand  lies,  setting  forth  the  injury  which  he 
might  sustain  in  consequence  of  such  error  or  mistake,  with  all  the 
matters  and  things  relative  thereto;  and  the  said  ccmrt  may  hear 
testimony  respecting  the  truth  of  the  allegations  set  forth  in  the  peti- 
tion ;  and  if  it  shall  appear  by  said  testimony,  from  the  return  of 
the  surveyor  or  the  error  of  the  secretary,  that  the  patentee  is  liable 
to  be  injured  thereby,  the  court  shall  direct  the  clerk  to  certify 
the  facts  to  the  secretary  of  state,  who  shall  file  the  same  in  his 
office,  and  correct  the  error  in  the  patent,  and  likewise  in  the  records 
of  his  office.  The  costs  of  such  suit  shall  be  paid  by  the  petitioner, 
except  when  any  ]icrson  may  have  made  himself  a  jiarty  to  prevent 
the  prayer  of  the  petitioner  being  granted,  in  which  case  the  costs 
shall  be  paid  as  the  court  may  decree.  The  benefits  granted  by  this 
section  to  tlie  iiatontces  of  land  shall  be  extended  in  all  cases  to  per- 
sons claiming  by,  from  or  under  their  grants,  by  descent,  devise,  or 
purchase.     W'iicu  any  error  is  ordered  to  be  r('rtitie<l,  and  the  same 


1738  GEANTS— 7/7.   Correcting.  Ch.   37 

has  been  carried  through  from  the  grant  into  mesne  conveyances, 
tlie  court  shall  direct  a  copy  of  the  order  to  be  recorded  in  the  regis- 
ter's books  of  the  coimty:  Provided,  no  such  petition  shall  be  bi-ought, 
Imt  within  three  years  after  the  date  of  the  patent;  and  if  brought 
after  that  time,  the  court  shall  dismiss  the  same,  and  all  proceedings 
liad  thereon  shall  be  null  and  of  no  effect:  Provided  further,  nothing 
herein  shall  affect  the  rights  or  interests  of  any  person  claiming 
under  a  patent  issued  between  the  period  of  the  date  of  the  gTant 
alleged  to  be  erroneous,  and  the  time  of  filing  the  petition,  unless 
such  person  shall  have  had  due  notice  of  the  filing  of  the  petition, 
by  service  of  a  copy  thereof,  and  an  opportunity  of  defending  his 
rights  before  the  court  according  to  the  course  of  the  coimnon  law. 

Code,  s.  2785;  R.  C,  e.  42,  s.  28;  1790,  c.  326;  1798,  c.  504;  1804,  e.  655; 
1814,  c.  876. 

1739.  Resurvey  of  lands  to  correct  grants,  how  obtained.  Per- 
sons who  have  heretofore  entered  or  may  hereafter  enter  vacant  lands 
shall  not  be  defeated  in  their  just  claims  by  mistakes  or  errors  in  the 
surveys  and  plots  furnished  by  surveyors,  but  in  every  case  where 
the  purchase  money  has  been  paid  into  the  state  treasury  within 
the  time  prescribed  by  law  after  entry  and  the  survey  or  plot  fur- 
nished shall  be  foimd  to  be  defective  or  erroneous,  the  party  having 
thus  made  entry  and  paid  the  purchase  price  may  obtain  another 
warrant  of  survey  from  the  entry-taker  of  the  county  where  the 
land  lies,  and  have  his  entry  surveyed  as  is  directed  by  existing  laws, 
and  on  i^reseuting  a  certificate  of  survey  and  two  fair  plots  thereof 
to  the  secretary  of  state  within  six  months  after  said  payment  of  the 
purchase  money,  the  party  making  such  entry  and  paying  such  pur- 
chase price  shall  be  entitled  to  receive,  and  it  shall  be  the  duty  of 
the  secretary  of  state  to  issue  to  him  the  proper  grant  for  the  lands  so 
entered. 

1901,  c.  734. 

1740.  Seal  lost,  how  replaced.  In  all  cases  where  the  seal 
annexed  to  a  grant  is  lost  or  destroyed,  the  governor  may,  on  the 
certificate  of  the  secretary  of  state  that  the  grant  was  fairly  obtained, 
cause  the  seal  of  the  state  to  be  affixed  thereto. 

Code.  s.  2781;   R.  C,  c.  42.  s.  24:    1807,  c.   727. 

1741.  Errors  in  grants,  how  corrected.  If  in  issuing  any  grant 

the  number  of  the  .erant  or  the  name  of  the  grantee  or  grantees  or 
any  material  words  or  figures  suggested  by  the  context  has  been 
omitted  or  not  correctly  written  or  given,  or  the  description  in  the 
body  of  the  gi-ant  docs  not  correspond  with  the  plot  and  description 
in  the  surveyor's  certificate  attached  to  the  grant,  or  if  in  recording 
the  grant  in  his  office  the  secretary  of  state  has  heretofore  made  or 


1741  GEANTS— F77.   Correcting.  Ch.   37 

may  liereafter  make  any  mistake  or  omission  by  which  any  part  of 
any  grant  has  not  been  correctly  recorded,  the  secretary  of  state  shall, 
upon  the  application  of  any  party  interested  and  the  payment  to  him 
of  his  lawful  fees,  correct  the  original  gTant  by  inserting  in  the 
proper  place  the  word  or  words,  figure  or  figures,  name  or  names 
omitted  or  not  correctly  given  or  suggested  by  the  context;  or  if  the 
description  in  tiie  grant  does  not  correspond  with  the  surveyor's  plot 
or  certificate,  he  shall  make  the  former  correspond  with  the  latter  as 
the  true  facts  uiay  require.  In  case  the  party  interested  prefer  it, 
the  secretary  of  state  shall  issue  a  duplicate  of  the  original  grant, 
including  therein  the  corrections  made ;  and  in  those  cases  in  whicli 
grants  have  not  been  correctly  recorded  he  shall  make  the  proper 
corrections  upon  his  records,  or  by  re-recording,  as  he  may  prefer ; 
and  any  grant  corrected  as  aforesaid  may  be  recorded  in  any  county 
of  the  state  as  other  grants  are  recorded,  and  have  relation  to  the 
time  of  the  entry  and  date  of  the  grant  as  in  other  cases. 
1889,  c.  4G0. 

1742.  In  Macon  and  Jackson;  notice  given.  All  corrections  or 

attempted  corrections  of  any  grant,  heretofore  nuide,  or  hereafter  to 
be  made,  by  the  secretary  of  state,  under  the  preceding  or  any  other 
section  of  this  chapter,  shall  be  null  and  void,  unless  all  adverse 
claimants  of  the  land  covered  by  such  grant,  and  all  persons  affecteil 
in  any  way  by  such  correction  or  proposed  correction  shall  have  been, 
or  shall  be,  duly  notified  in  writing  of  the  time  and  place  of  such 
application  to  have  said  grants  corrected,  and  in  what  respect  the 
same  may  be  defective  or  incorrect.  If  upon  the  hearing  of  tlu- 
proof  of  both  sides  by  the  secretary  of  state,  it  does  not  clearly  ap]icar 
that  such  cori-ection  should  be  made  he  shall  refuse  to  make  the  said 
change  or  correction.  In  all  cases  the  burden  of  proof  tliat  sucli 
notice  was  given  shall  be  upon  the  party  claiming  under  such  cor- 
rected grant.  This  section  shall  apply  only  to  Jackson  and  Macon 
counties. 

1001,  c.  505. 

1743.  irregular  entries  validated.  Wherever  persons  have  prior 
to  January  first,  one  thousand  eight  hundred  and  eighty-three,  irreg- 
ularly entered  lands  and  have  paid  the  fees  required  by  law  to  the 
secretary  of  state,  and  have  obtained  grants  for  such  lands  duly  exe- 
cuted, then  and  in  that  case  the  title  to  the  said  lands  sliall  not  be 
affected  by  reason  of  such  irregular  entries ;  and  the  said  grants  are 
hereby  declared  to  be  as  good  and  valid,  as  if  such  entries  had  been 
properly  made. 

Code,  s.  2761;   1868-9,  c.  100,  s.  4;   1868-9,  c.  173,  s.  C;   1874-5,  c.  48. 


1744  GKANTS— 7/7.  Correcting.  Ch.  37 

1744.  Grants  signed  by  deputy  secretary  of  state  validated. 

Where  state  gTUuts  have  heretcifnre  heeu  issued  and  the  name  of  the 
secretarj  of  state  has  been  athxed  thereto  by  his  deputy  or  chief  clerk, 
or  by  any  one  purporting-  to  act  in  such  capacity,  such  grants  are 
hereby  declared  valid ;  but  nothing  herein  contained  shall  interfere 
with  vested  rights. 

1905,  c.  512. 

1745.  Grants  issued  prior  to  1820,  validated.  All  grants  issued 

by  the  secretary  of  state,  previous  to  the  year  one  thousand  eight 
hundred  and  twenty,  on  surveys  made  fairly  and  without  fraud,  and 
signed  by  the  deputy  surveyor  only,  shall  be  good  and  effectual  to 
pass  all  the  right  of  the  state  in  and  to  said  land,  in  as  full  and 
ample  a  manner  as  if  such  returns  had  been  made  in  due  form: 
Provided,  nothing  herein  shall  affect  any  entries  made,  or  gi-ants 
obtained  on  legal  returns  for  such  lands,  previous  to  the  year  one 
thousand  eight  hundred  and  twenty-nine. 

Code,  s.  2783;   R.  C,  c.  42,  s.  26;    1828,  c.  46. 

1746.  Grants  to  surveyors  prior  to  1829,  confirmed.  Grants  of 

land  made  by  the  state  to  surveyors  and  deputy  surveyors,  prior  to 
the  first  day  of  January,  one  thousand  eight  hundred  and  twenty- 
nine,  upon  surveys,  plots,  and  certificates  of  the  same,  made  by  them 
for  themselves  respiectively,  without  other  illegality,  and  without 
fraud  or  partiality,  the  certificates  in  all  cases  being  signed  by  the 
princijaal  surveyor,  are  confirmed  and  declared  to  be  good  and  valid. 

Code,  s.  2782;   R.  C,  c.  42,  s.  25;    1828,  c.  23,  s.  2. 

1747.  Time  for  registering  grants  extended.    All  gi-ants  from 

the  state  of  Xorth  Carolina  of  lands  and  interests  in  land  heretofore 
made,  which  were  required  or  allowed  to  be  registered  witliin  a 
time  or  times  specified  by  law,  or  in  the  grants  themselves,  may  be 
registered  in  the  counties  in  which  the  lands  lie  resjaectively  at  any 
time  within  six  years  from  the  first  day  of  January,  nineteen  lum- 
dred  and  one,  notwithstanding  the  fact  that  such  specified  times  have 
already  expired,  and  all  such  gi'ants  heretofore  registered  after  the 
expiration  of  such  specified  time  or  times  shall  be  taken  and  treated  as 
if  they  had  been  registered  within  such  specified  time:  Provided,  that 
nothing  herein  contained  shall  be  held  or  have  the  effect  to  divest  any 
rights,  titles  or  equities  in  or  to  the  land  covered  by  such  gTants,  or 
any  of  them,  acquired  by  any  person  or  persons  from  the  state  of 
North  Carolina  by  or  through  any  entity  or  entries,  grant  or  grants, 
made  or  issued  since  such  grants  were  respectively  issued,  or  those 
claiming  through  or  under  such  subsequent  entry  or  entries,  grant  or 
gi'ants. 

1905,  e.  6;  1893,  e.  40;  1901,  e.  175. 


1748  GRANTS— T'///.   Vacated.  Cli.   37 

VIII.     Vacated. 

1748.  Suits  to  vacate  grants,  when  and  where  brought.  When 

any  ])C'rsoii  claiiniiii;'  litli-  \u  lands  under  a  i^rant  <ir  ]iati'nt  from 
the  king  of  Great  JJritain,  any  of  the  hirds  proprietors  of  North 
Carolina,  or  from  the  state  of  North  Carolina,  shall  consider  himself 
aggrieved  by  any  grant  or  ])atent  issued  or  made  since  the  fourth  day 
of  July,  one  thousand  seven  hundred  and  seventy-six,  to  any  other 
person,  against  law  or  obtained  by  false  suggestions,  surprise  or 
fraiid,  the  person  aggrieved  may  bring  a  civil  action  in  the  su])eri<ir 
court  for  the  coimty  in  which  such  land  may  be,  together  with  an 
authenticated  copy  of  said  grant  or  patent,  briefly  stating  the  gi'Ounds 
whereon  such  patent  should  be  repealed  and  vacated,  whereupon  the 
grantee,  patentee,  or  the  person,  owner  or  claimant  under  such  grant 
or  patent  shall  be  required  to  show  cause  why  the  same  shall  not  be 
repealed  and  vacated. 

Code,  s.  278G;  R.  C,  c.  42,  s.  29. 

1749.  Judgment   vacating   grant,   recorded   in   secretary   of 

state's  office,  if,  upon  verdict  or  demurrer,  the  court  believe  that 
the  patent  or  gi'ant  was  made  against  law  or  obtained  by  fraud,  sur- 
prise, or  upon  untrue  suggestions,  they  may  vacate  the  same ;  and 
a  cojiy  of  such  judgment,  after  being  recorded  at  large,  shall  be 
filed  by  the  petitioner  in  the  secretary's  office,  where  it  shall  be 
recorded  in  a  book  kept  for  that  purpose ;  and  the  secretary  shall 
note  in  the  margin  of  the  original  record  of  the  grant  the  entry  of 
the  judgment,  with  a  reference  to  the  record  in  his  office. 
Code,  s.  2787;  R.  C,  c.  42,  s.  39. 

1750.  When  state  will  bring  suit  to  vacate  grants.  An  action 

may  be  brought  by  the  attorney  general,  in  the  name  of  the  state, 
for  the  purpose  of  vacating  or  annulling  letters  patent  granted  by  the 
state,  in  the  following  cases: 

1.  When  he  shall  have  reason  to  believe  that  such  letters  patent 
were  obtained  by  means  of  some  fraudulent  suggestion  or  conceal- 
ment of  a  material  fact,  made  by  the  person  to  whom  the  same  wow 
issued  or  made,  or  with  his  consent  or  knowledge ;  or 

2.  When  he  shall  have  reason  to  believe  that  such  letters  ])atent 
were  issued  through  mistake,  or  in  igniorance  of  a  material  fact;  or 

o.  When  he  shall  have  reason  to  l^lieve  that  the  ])atentec,  or 
those  claiming  \mder  him,  have  done  or  omitted  an  act,  in  violation 
of  the  terms  and  conditions  on  which  the  letters  patent  were  granted, 
or  have  by  any  other  means  forfeited  the  interest  aciiuircd  under 
the  same. 

Code,  s.  2788;  C.  C.  P.,  s.  367. 


1751  GRANTS— /A'.  Phosphak  Beds.  Ch.   ^7 

IX.     PiiospitATE   Beds. 

1751.  Phosphate  rock  under  navigable  waters,  when  entered. 

Any  resident  of  this  state  who  shall  make  affidavit  before  the  clerk 
of  the  superior  conrt  of  any  county  through  which  such  navigable 
stream  may  flow,  that  he  has  discovered  in  any  navigable  stream  or 
waters  of  this  state  any  phosphate  rock  or  phosphate  deposit  therein 
shall  have  authority  and  power  to  enter  under  the  entry  laws  of 
this  state  so  much  of  the  bed  of  any  such  navigable  stream  or 
waters  as  shall  not  exceed  in  any  one  entry  two  miles  in  length 
up  the  middle  of  any  STich  stream  or  water  for  the  purpose  of  dig- 
ging, mining  or  removing  any  such  deposit  or  rock. 
1891,  c.  476. 

1752.  How  grant  obtained;  term;  royalty.  Upon  such  affidavit 

being  hied  with  the  entry-taker,  and  upon  a  survey  and  plot  being 
made  of  such  entry  by  the  covmty  surveyor,  as  is  now  required  by 
law  in  cases  of  entry  of  land,  being  made  and  certified  to  the  secre- 
tary of  state  with  a  copy  of  such  affidavit  and  entry  so  made,  the 
said  secretary  of  state  shall  issue  a  patent  or  grant  to  the  said  person, 
his  heirs  or  assig-ns,  for  a  term  of  twenty-live  years  for  such  land, 
with  the  proviso  and  condition  inserted  therein  that  the  grantee 
therein  shall  pay  to  the  treasurer  of  the  state  at  the  end  of  every 
three  months  a  royalty  of  one  dollar  per  ton  for  each  and  every 
ton  of  the  crude  phosphate  rock  or  deposit  mined,  dug  or  removed. 
1891,  c.  476,  s.  2. 

1753.  Exclusive  right  to  mine;  bond  for  royalty.  Such  gTantee, 

his  heirs  or  assigns,  shall  have  the  exclusive  right  to  mine,  dig 
or  remove  any  such  phosphate  rock  or  deposit  for  the  term  of  twenty- 
five  years  from  the  date  of  said  patent  upon  paying  the  said  royalty 
of  one  dollar  specified  in  said  patent:  Provided,  however,  that  as 
a  condition  precedent  to  the  granting  of  any  such  patent  each  such 
company  or  person  making  any  such  entry  shall  enter  into  bond  with 
sufficient  security  in  the  penal  sum  of  five  thousand  dollars,  condi- 
tioned for  the  making  of  faithful  and  true  returns  to  the  treasurer 
of  the  state  of  the  number  of  tons  of  phosphate  rock  and  phosphate 
dejiosit  so  dug,  mined  or  removed,  at  the  end  of  every  month,  and 
the  i^unctual  jjayment  to  the  said  treasurer  of  the  royalty  of  one 
dollar  jier  ton  upon  each  and  every  ton  of  the  crude  rock,  without 
being  steamed  or  dried,  at  the  end  of  every  three  months,  and  the 
said  bond  and  sureties  shall  be  subject  to  the  approval  now  required 
by  law  for  the  bonds  of  state  officers. 
1891,  c.  476,  s.  3. 


1754  GRANTS— 7X.  Phosphate  Beds.  Ch.   37 

1754.  Navigation  not  obstructed  by  grantee.   Xo  grant  issued 

under  the  jirovisiuiis  of  this  subclia]iter  sliall  etnifer  upon  the  person 
receiving  the  same  the  right  to  obstruct  the  navigation  of  any  such 
stream  or  water,  nor  confer  upon  any  such  person  or  his  assign-^ 
any  other  right  than  that  granted  to  take,  mine  or  dig  phosphate  rock 
or  deposit  tlierefroni. 

1891,  c.  47G,  s.  4. 

1 755.  Fees  for  issuing  grant  for  phosphate  beds.    Xo  fee  or  cost 

shall  be  charged  or  collected  by  the  secretary  of  state  of  any  person 
or  corporation  receiving  any  patent  or  grant  under  this  subchapter, 
excejjt  the  fee  allowed  by  law  to  the  said  secretary  of  state  for  issu- 
ing a  patent  under  the  entry  laws  of  the  state. 
1891,  c.  476,  s.  5. 

1756.  Failure  to  operate  for  two  years  vacates  grant.   Any 

person,  company  or  corporation  who  shall  fail  to  dig,  mine  or  remove 
phosphate  rock  or  deposit  from  any  such  stream  or  water  to  which 
he  or  it  may  be  entitled  under  any  patent  or  grant  issued  under  the 
provisions  of  this  subchapter  for  the  period  of  two  years  from  the  date 
of  said  patent,  or  after  beginning  digging,  mining  or  removing  the 
same,  shall  fail  to  continue  to  so  dig,  mine  or  remove  the  same  for 
the  period  of  two  years,  shall  forfeit  any  and  all  rights  therein 
granted,  and  said  territory  shall  immediately  thereupon  become  sub- 
ject to  entry  under  the  provisions  of  this  subchapter  without  making 
the  affidavit  of  the  discovery  of  any  such  deposits  or  rocks. 
1891.  c.  470,  s.  6. 

1757.  IVIay  be  mined  without  grant,  how.  Any  person  or  corpo- 
ration resident  of  this  state  shall  have  the  right  to  mine,  dig  or 
remove  phosphate  rock  or  deposits  from  any  of  the  navigable  streams 
or  waters  in  this  state  to  which  no  exclusive  patent  or  gi-ant  may 
ha\'e  been  issued,  upon  such  person  or  corporation  first  entering 
into  bond  in  the  penal  sum  of  five  thousand  dollars,  payable  to 
the  treasurer  of  the  state,  for  the  payment  of  the  same  royalty,  in 
the  same  manner  and  under  the  same  regulations  as  are  prescribed 
in  section  one  thousand  seven  hundred  and  fifty-three ;  but  nothing  in 
this  section  shall  be  construed  to  give  to  any  such  person  or  corpora- 
tion any  exclusive  franchise  or  privilege  to  dig,  mine  or  remove  any 
such  phosphate  rock  or  deposit  from  any  stream  or  water  of  this  state. 

1891,  c.  476,  s.  7. 


GUARDIAIS^— /.  Public.  Ch.  38 


CHAPTER    38. 
GUARDIAN. 

Sections. 
I.     Public  guardians.  1758 — 1761 

II.     Appointed  by  parent.  1762 — 1763 

III.  .Turisdiction,  clerk  superior  court,  1766 — 1776 

IV.  Bonds.  1777—1785 
V.     Powers  and  duties,  1786—1797 

VI.  Estates  sold,  1798—1801 

VII.  Returns  and  accounting.  1802—1809 

VIII.  Estate  protected,  when  no  guardian,  1810 — 1815 

IX.  Foreign  guardians,  1816—1818 

I.     Public  Guardians. 

1758.  How  appointed;  tenure.  There  may  be  in  every  county  a 
public  guardian  to  be  apjiointed  by  tlie  clerk  o£  tlie  superior  court 
for  a  term  of  eight  years. 

Code,  s.   1556;   1874-5,  c.  221. 

1759.  Oath  of  office.  The  public  guardian  shall  take  and  sub- 
scribe an  oath  (or  affirmation)  faithfully  and  honestly  to  discharge 
the  duties  imposed  upon  him ;  the  oath  so  taken  and  subscribed  shall 
be  filed  in  the  office  of  the  clerk  of  the  superior  court. 

Code,  s.   1560;    1874-5,  c.  221,  s.  5. 

1760.  When  letters  issued  to.  The  public  guardian  shall  apply 
for  and  obtain  letters  of  guardianship  in  the  following  cases: 

1.  When  a  period  of  si.\  months  has  elapsed  from  the  discovery 
of  any  property  belonging  to  any  minor,  idiot,  lunatic,  insane  jier- 
son  or  inebriate,  without  guardian. 

2.  When  any  person  entitled  to  letters  of  guardianship  shall 
request  in  writing  the  clerk  of  the  superior  court  to  issue  letters  to 
the  public  guardian :  Provided,  it  shall  be  lawful  and  the  duty  of 
the  clerk  of  the  superior  court  to  revoke  said  letters  of  guardianship 
at  any  time  after  issuing  the  same  upon  application  in  writing  by 
any  person  entitled  to  qualify  as  guardian,  setting  forth  a  sufficient 
cause  for  such  revocation. 

Code,  s.  1561;  1874-5,  c.  221,  ss.  6,  7. 

1761.  Powers,  duties,  liabilities,  compensation.  The  powers  and 

duties  of  said  public  guardian  shall  Ix'  the  same  as  other  giiardian.s, 
and  he  shall  be  subject  to.  the  same  liabilities  as  other  guardians 


1761  GUAEDIAN— /.  Public.  Ch.  3S 

under  the  existing  laws;  and  shall  receive  the  same  compensation 
as  other  guardians. 

Code,   s.   1561;    1874-5,  c.  221,  ss.  6,   7. 

II.     Appointed   bt   Parent. 

1762.  Father,  and  if  dead,  mother  may  appoint.  Any  father, 

though  he  he  a  minor,  may,  by  deed  executed  in  his  lifetime  or  hv 
his  last  will  and  testament  in  writing,  dispose  of  the  custody  and 
tuition  of  any  of  his  infant  children,  being  unmarried  and  whether 
born  at  his  death  or  in  ventre  sa  mere,  for  such  time  as  the  children 
may  remain  under  twenty-one  years  of  age,  or  for  any  less  time. 
Or  in  case  such  father  shall  be  dead  and  shall  not  have  exercised 
his  said  right  of  appointment,  then  the  mother,  whether  of  full  age 
or  a  minor,  may  do  so. 

Code,  s.   1562;   E.  C,  c.  54;    1762,  c.  69;    1868-9,  c.   201;    1881,  c.   64. 

1763.  Effect  of  such  appointment.  Every  such  appointment  shall 
be  good  and  effectual  against  any  person  claiming  the  custody  and 
tuition  of  such  child  or  children. 

Code,  s.  1563;  R.  C,  c.  54;   1762,  c.  69,  s.  2;   1868-9,  c.  201,  s.  2. 

1764.  Powers  and  liabilities  of  other  guardians.  Every  guard- 
ian by  deed  or  will  shall  have  the  same  powers  and  rights  and  be  sub- 
ject to  the  5ame  liabilities  and  regailations  as  other  giiardians. 

Code,  s.   1564;   R.  C,  c.  ,54;    1762,  c.  69;    1868-9,  c.  201,  s.  3. 

1765.  Mother  natural  guardian,  father  dead,   in  case  of  the 

death  of  the  father  of  an  infant,  the  mother  of  such  child  surviving 
such  father  shall  immediately  become  the  natural  guardian  of  such 
child  to  the  same  extent  and  in  the  same  manner,  plight  and  condi- 
tion as  the  father  would  be  if  living;  and  the  mother  in  such  ca.s(» 
shall  have  all  the  powers,  rights  and  privileges,  and  be  subject  to  all 
the  duties  and  obligations  of  a  natural  guardian.  But  this  sliall  not 
be  construed  as  abridging  the  powers  of  the  courts  over  minors  and 
their  estates  and  to  the  appointment  of  guardians. 

Code,  s.  1565;   1883,  c.  364. 

III.       JuKISDICTION    OF    Ci.ERK    OF    SUPERIOR    CoURT    OvER. 

1766.  May  appoint,  for  infants,  idiots,  lunatics  and  inebriates. 

The  clerks  of  the  superior  court  wijhin  tlieir  respci'tix'c  counlics  sliall 
have  full  power,  from  time  to  time,  to  take  cdgnizancc  of  all  matters 
concerning  orphans  and  their  estates  and   to   appoint  guardians   in 


1TC6  GUAKDIAX— 777.  Jurisdiction  of  Clerk.  Ch.  38 

all  cases  of  iBfants,  idiots,  kmatics  and  inebriates,  except  where 
otherwise  prescribed  by  law. 

Code,  s.  1566;  K.  C,  c.  54,  s.  2;   1762,  e.  69,  ss.  5,  7;   1868-9,  c.  201,  s.  4. 

Note.     When  wages  of  apprentice  exceed  $100,  see  Apprentices,  s.  189. 

1767.  May  commit  custody  to  one,  estate  to  another.  Instead 

of  granting  general  guardiansliiji  to  nnc  person,  the  clerk  of  the 
superior  court  niay  commit  the  tuition  and  custody  of  the  person  to 
one  and  the  charge  of  his  estate  to  another,  whenever  and  at  any 
time  during  minority,  inebriety,  idiocy  or  lunacy,  it  appears  most 
conducive  to  the  proper  care  of  the  orphan's,  inebriate's,  idiot's  or 
lunatic's  estate,  and  to  his  suitable  maintenance,  nurture  and  edu- 
cation. 

Code,  s.  1567;  R.  C,  c.  54,  s.  3;   1840,  c.  31. 

1768.  May  allow  yearly  sum  for  support  and  education.   In 

such  cases  the  clerk  must  order  what  yearly  sums  of  money  or  other 
provisions  shall  be  allowed  for  the  support  and  education  of  the 
orphan,  or  for  the  maintenance  of  the  idiot,  lunatic  or  inebriate,  and 
must  prescribe  the  time  and  manner  of  paying  the  same ;  but  such 
allowance  may,  upon  application  and  satisfactory  proof  made,  be 
reduced  or  enlarged,  or  otherwise  modified,  as  the  ward's  condition 
in  life  and  the  kind  and  vahie  of  his  estate  may  require. 

Code,  s.   1568;   R.  C,  c.  54,  s.  3;    1840,  c.  31;    1868-9,  c.  201,  s.  6. 

1769.  What  disbursements  and  commissions  allowed.  All  pay- 
ments made  by  the  guardian  of  the  estate  to  the  tutor  of  the  person, 
according  to  any  such  order,  shall  be  deemed  just  disbursements  and 
be  allowed  in  the  settlement  of  his  accounts ;  but  for  the  payment 
thereof  by  the  one  and  the  receipt  thereof  by  the  other  merely,  no 
commissions  shall  be  allowed  to  either,  though  commissions  may  be 
allowed  to  the  tutor  of  the  person  on  his  disbursements  only. 

Code,  s.  1569;  R.  C,  c.  54,  s.  3;  1840,  c.  31,  s.  3;  1868-9,  c.  201,  s.  7. 
Note.     See  s.  1808. 

1770.  Appointed  by,  in  case  of  divorce.  When  parents  are  di- 
vorced and  a  child  is  entitled  to  any  estate,  the  court  granting  the 
divorce  must  certify  that  fact  to  the  clerk  of  the  superior  court,  to  the 
end  that  he  may  appoint  a  fit  and  proper  person  to  take  the  care  and 
management  of  such  estate,  whose  powers  and  duties  shall  be  the 
same  in  all  respects  as  other  guardians,  except  that  a  guardian  so 
appointed  shall  not  have  any  authority  over  the  person  of  such  child, 
unless  the  guardian  be  the  father  or  mother. 

Code,  s.  1571;  R.  C,  c.  54,  s.  4;  1838,  c.  16;   1868-9,  c.  201,  s.  9. 

1771.  May  appoint  when  father  is  alive.  The  clerk  of  the  supe- 
rior court  may   appoint  a   giiardian   of  the   estate   of  any   minor. 


1771  GUAEDIAK— ///.  Jurisdiction  of  Clerk.  Ch.  3S 

although  the  father  of  such  minor  be  living.  And  the  guardian 
so  appointed  shall  be  governed  in  all  respects  bv  the  laws  relative 
to  guardians  of  the  estate  in  other  cases,  but  shall  have  no  authority 
over  the  person  of  such  minor. 

Code,  s.  1572;  K.  C,  e.  54,  ss.  4,  7;  1806,  c.  707;  1868-9,  c.  201,  s.  10. 

1772.  Proceedings  on  application  for.   On  application  to  any 

clerk  of  the  superior  court  for  the  custody  and  guardianship  of  any 
infant,  idiot,  inebriate  or  lunatic,  it  is  the  duty  of  such  clerk  to 
inform  himself  of  the  circumstances  of  the  case  on  the  oath  of  the 
applicant  or  of  any  other  ]5erson ;  and  if  none  of  the  relatives  of 
the  infant,  idiot,  inebriate  or  lunatic  are  present  at  such  application, 
the  clerk  must  assig-n,  or,  for  any  other  good  cause,  he  may  assigii 
a  day  for  the  hearing;  and  he  shall  thereupon  direct  notice  thereof 
to  be  given  to  such  of  the  relatives  and  to  such  other  persons,  if  any, 
as  he  may  deem  it  proper  to  notify.  On  the  hearing  he  shall  ascer- 
tain, on  oath,  the  amount  of  the  jsroperty,  real  and  personal,  of  the 
infant,  idiot,  inebriate  or  lunatic,  and  the  value  of  the  rents  and 
profits  of  the  real  estate,  and  he  may  grant  or  refuse  the  application, 
or  commit  the  guardianship  to  some  other  person,  as  he  may  think 
best  for  the  interest  of  the  infant,  idiot,  inebriate,  or  lunatic. 
Code,  s.  1620;  C.  C.  P.,  s.  474. 

1773.  Must  issue  letters.  The  clerk  of  the  superior  court  must 
issue  to  every  guardian  ajipointed  by  him  a  letter  of  appointment, 
which  shall  be  signed  by  him  and  sealed  with  the  seal  of  his  office. 

Code,  s.  1021;  C.  C.  P.,  s.  475. 

1774.  Removed,  when.  The  clerks  of  the  superior  court  shall 
have  power,  on  information  or  complaint  made,  at  all  times  to  remove 
guardians  and  appoint  successors,  to  make  and  establish  rules  for 
the  better  ordering,  managing  and  securing  infants"  estates,  and  for 
the  better  education  and  maintenance  of  wards ;  and  it  shall  be  their 
duty  to  do  so  in  the  following  cases: 

1.  Where  the  guardian  wastes  or  converts  the  money  or  estate 
of  the  ward  to  his  O'wn  use. 

2.  Where  the  giiardian  in  any  manner  mismanages  the  estate. 

•J.  Where  the  guardian  is  about  or  intends  to  marry  any  ward  in 
disparagement. 

4.  Where  the  guardian  neglects  to  ediicatc  or  maintain  the  ward 
in  a  manner  suitable  to  his  or  her  degree. 

5.  Where  the  gniardian  is  legally  disqualified  to  act  as  a  person 
would  be  to  be  ajipointed  administrator. 

6.  Where  the  g\uTrdian  or  his  sureties  are  likely  to  become  insol- 
\ent  or  noni-esidents  of  the  state. 

Code,  s.  1583;  11.  C,  c.  54,  ss.  2,  13;  1762,  c.  (!■) ;  1SG8!),  c.  201,  s.  20;  C.  C.  P., 
ss.  470,  470. 

542 


1775  GUARDIAN"— 7/7.  Jurisdiction  of  Clerk.  Cli.   38 

1775.  Interlocutory  orders  pending  controversy.   In  all  cases 

where  the  letters  of  a  i^iuirdian  are  revukeil,  the  clerk  of  the  supe- 
rior court  may,  from  time  to  time,  pending  any  controversy  in  respect 
to  such  removal,  make  such  interlocutory  orders  and  decrees  as  will 
tend  to  the  better  securing  the  estate  of  the  ward,  or  other  party 
seeking  relief  by  such  revocation. 
Code,  s.  1007;   1S68-9,  e.  201,  s.  44. 

1776.  Resignation  of;  must  first  account.  Any  guardian  wishing 

to  resign  his  trust  may  apply  in  writing  to  the  superior  court,  setting 
forth  the  circumstances  of  his  case.  If,  at  the  time  of  making  the 
application,  he  also  exhibits  his  final  account  for  settlement,  and  if 
the  clerk  of  the  superior  coiirt  is  satisfied  that  the  guardian  has  been 
faithful  and  has  triily  accounted,  and  if  a  competent  person  can  be 
procured  to  succeed  in  the  guardianship,  the  clerk  of  the  superior 
court  may  accept  the  resignation  of  the  guardian  and  discharge  him 
from  the  trust.  But  the  guardian  so  discharged  and  his  sureties  are 
still  liable  in  relation  to  all  matters  connected  with  the  trust  before 
the  resignation. 

Code,  s.   1608;   1868-9,  c.  201,  s.  45. 

IV.     Bonds. 

1777.  Not  to  receive  property  till  approved.  No  guardian  ap- 
pointed for  an  infant,  idiot,  lunatic,  insane  person,  or  inebriate, 
shall  be  permitted  to  receive  property  of  the  infant,  idiot,  lunatic, 
insane  person  or  inebriate  until  he  shall  have  given  sufficient  security, 
approved  by  a  judge,  or  the  court,  to  acco\int  for  and  apply  the  same 
under  the  direction  of  the  ciuirt. 

Code,  s.  1573;  C.  C.  P.,  s.  355. 

1778.  Given  before  letters  issued;  increased  if  property  sold. 

Every  guardian  of  the  estate,  before  letters  of  ai)pnintment  are 
issued  to  him,  must  give  a  bond  payable  to  the  state,  with  two  or 
more  sufficient  sureties,  to  be  acknowledged  before  and  approved  by 
the  clerk  of  the  superior  court,  and  to  be  jointly  and  severally  bound. 
The  penalty  in  such  bond  must  be  double,  at  least,  the  value  of  all 
personal  property,  and  the  rents  and  profits  issuing  from  the  real 
estate  of  the  infant;  which  value  is  to  be  ascertained  by  the  clerk 
of  the  superior  court  by  the  examination,  on  oath,  of  the  applicant 
for  guardianship,  or  of  any  other  person.  The  bond  must  be  con- 
ditioned that  such  guardian  shall  faithfully  execute  the  trust  reposed 
in  him  as  such,  and  obey  all  lawful  orders  of  the  clerk  or  judge, 
touching  the  guardianship  of  the  estate  committed  to  him.  If,  on 
application  by  the  giiardian,  the  court  or  judge  shall  decree  a  sale 


1778  GUAEDIAX— 71'.  Bonds.  Ch.  38 

for  any  of  the  causes  prescribed  by  law  of  the  ])ropcrty  of  such 
infant,  idiot,  lunatic  or  insane  ]icrson,  before  such  sale  be  confirmed, 
the  guardian  shall  be  required  to  file  a  bond  as  now  required  in 
double  the  amount  of  the  real  ]iroperty  so  sold. 

Code.  s.  1574;  R.  C,  e.  54,  s.  5;  n(i2,  c.  69,  s.  7;  18-25,  c.  1285,  s.  2;  1833,  c.  17; 
1868-9,  c.  201,  s.  11;   1874-5,  c.  214. 

1779.  Recorded  in  clerk's  office;  injured  person  may  sue  on. 

The  lioud  so  taken  shall  be  rcrdnled  in  ihc  drticc  n{  the  clerk  of  the 
superior  court  appointing  the  guardian;  and  any  person  injured  by 
a  breach  of  the  condition  thereof,  may  prosecute  a  suit  thereon,  as 
in  other  actions. 

Code,  s.  1575;  R.  C,  c.  54,  s.  5;   1868-9,  c.  201,  s.  12. 

1780.  One  bond  where  wards  have  common  property.  AVhen  the 

same  person  is  appointed  guardian  tn  two  uv  nuirc  niimn-s,  idiots, 
lunatics  or  insane  persons  possessed  of  one  estate  in  common,  the 
clerk  of  the  superior  court  may  take  one  bond  only  in  such  case, 
upon  which  each  of  the  minors  or  persons  for  whose  benefit  the  bond 
is  given,  or  their  heirs  or  personal  representatives,  may  have  a  sepa- 
rate action. 

Code,  s.  1576;  R.  C,  c.  54,  s.  8;  1822.  c.  1161;  1S68-9,  c.  201,  s.  13. 

1781.  Renewed  every  three  years.  Every  guardian  shall  renew 
his  bond  before  the  clerk  of  the  superior  court  every  three  years, 
during  the  continuance  of  the  guardianship. 

Code,  s.  1581;  R.  C,  c.  54,  s.  10;  1868,  c.  201,  s.  18. 

1782.  Duty  of  clerk  on  failing  to  renew.  The  clerk  of  the  supe- 
rior court  shall  issue  a  citation  against  every  guardian  failing  to 
renew  his  bond,  as  directed  in  the  preceding  section,  rcq\iiring  such 
guardian  to  renew  his  bond  witliin  twenty  days  after  service  of  the 
citation;  and  on  return  of  the  citation  duly  served  and  failure  of 
the  gTiardian  to  comply  therewith,  the  clerk  shall  remove  iiim  and 
appoint  a  successor. 

Code,  s.  1582;  R.  C,  c.  54,  s.  10;  1702,  c.  09,  s.  15;   1868-9,  e.  201,  s.  19. 

1783.  Sureties  relieved.  Any  surety  of  a  guardian,  wlio  is  in 
danger  of  sustaining  loss  by  his  suretyship,  may  file  his  comjilaint 
before  the  clerk  of  the  superior  court  where  the  guardianship  was 
granted,  setting  forth  the  circumstances  of  his  ease  and  demanding 
relief;  and  thereupon  the  guardian  shall  be  re(pnred  to  an.swer  the 
complaint  within  twenty  days  after  s(;rvice  of  the  summons.  If, 
upon  the  hearing,  the  clerk  of  the  sujierior  court  deem  the  siirety 
entitled  to  relief,  the  same  may  be  granted  by  coni]iel]ing  the  gmird- 
ian  to  give  a  new  bond,  or  to  indemnify  the  surety  against  a])])re- 


1783  GUARDIAN— /F.  Bonds.  Ch.   38 

liended  loss,  or  by  the  removal  of  the  guardian  from  his  trust;  and 
in  case  the  guardian  fail  to  give  a  new  bond  or  security  to  indemnify 
when  required  to  do  so  within  reasonable  time,  the  clerk  of  the 
superior  court  must  enter  a  peremptory  order  for  his  removal,  and 
liis  authority  as  guardian  shall  thereupon  cease. 

Code,  s.  1606;  K.  C,  c.  54,  s.  35;  1762,  e.  69,  ss.  21,  22;.  1868-9,  c.  201,  s.  43. 

1784.  Liability  of  clerl<  for  taking  insufficient.  If  any  clerk  of 

the  superior  cimrl  shall  cuuuuit  the  cstatr  (if  an  infant,  idiot,  lunatic, 
insane  person  or  inebriate  to  the  charge  or  guardianship  of  any  per- 
son without  taking  good  and  sufficient  security  for  the  same  as 
directed  by  law,  snch  clerk  shall  be  liable,  on  his  official  bond,  at 
the  suit  of  the  party  aggrieved,  for  all  loss  and  damages  sustained 
for  M-ant  of  security  being  taken ;  but  if  the  sureties  were  good  at 
the  time  of  their  being  accepted,  the  clerk  of  the  superior  conrt  shall 
not  be  liable. 

Code,  s.   1G14;   E.  C,  e.  54,  s.  2;   1762,  c.  69,  ss.  5,  6;   1868-9,  c.  201,  s.  51. 

1785.  Liability  of  clerk  for  other  defaults.  If  any  clerk  of  the 

superior  court  shall  wilfully  or  uogligently  do,  or  omit  to  do,  any 
other  act  prohibited,  or  other  duty  imposed  on  him  by  law,  by  which 
act  or  omission  the  estate  of  any  ward  suffers  damage,  he  shall  be 
liable  therefor  as  in  the  preceding  section  directed. 

Code,  s.   1615;   1868-9,  e.  201,  s.  52. 

V.     PowEKs  AND  Duties. 

1786.  Must  take  charge  of  estate.  Every  guardian  shall  take 
possession,  for  the  use  of  the  ward,  of  all  his  estate,  and  may  bring 
all  necessary  actions  therefor. 

Code,  s.  1588;  R.  C,  c.  54,  s.  21;   1762,  c.  69,  s.  3;   1868-9,  c.  201,  s.  25. 

1787.  Must  sell  perishable  goods  on  order  of  clerk.    Every 

guardian  shall  .sell,  by  order  of  the  clerk  of  the  superior  court,  all 
such  goods  and  chattels  of  his  ward  as  may  be  liable  to  perish  or  be 
the  worse  for  keeping.  Every  such  order  shall  be  entered  in  the 
order  record  of  the  su]ierior  court  and  must  contain  a  descriptive 
list  of  the  property  to  be  sold,  with  the  terms  of  sale. 

Code,  s.   1589;   R.  C,  c.  54,  s.  22;   1762,  c.  69,  s.  10;    1868-9,  c.  201,  s.  26. 

1788.  Sales  and  rentings,  how  made.  All  sales  and  rentings  by 

guardians  shall  lie  pulilii/ly  made,  between  the  hours  of  ten  o'clock 
a.  m.  and  four  o'clock  p.  m.,  after  twenty  days'  notice  posted  at  the 
courthouse  and  four  other  ])ublic  places  in  the  county.  But,  upon 
petition  by  the  guardian,  the  clerk  of  the  superior  court  of  the 
county  in  which  the  land  of  the  ward  is  situated,  or  of  the  county 

Rev.  Vol.  1—31  54,-) 


1788  GUARDIAN"— T\  Powers  and  Duties.  Ch.  38 

wherein  the  guardian  has  qualified,  may  make  an  order,  on  satisfac- 
tory evidence,  ui^on  the  oath  of  at  least  two  disinterested  freeholders 
acquainted  with  the  said  land,  that  the  best  interests  of  the  said 
Avard  will  be  subserved  by  a  jjrivate  renting  of  said  land,  allowing 
the  guardian  to  rent  the  land  privately.  The  terms  of  all  such  rentings 
shall  be  reported  to  said  clerk  of  the  su]ierior  court  and  be  approved 
by  him.  In  cases  where  guardians  have  heretofore  rented  their 
ward's  land  at  private  rentings  in  good  faith  and  for  the  benefit  of 
the  ward's  estate,  they  shall  not  be  liable  to  the  penalty  heretofore 
prescribed  by  law.  The  proceeds  of  all  sales  of  personal  estate  and 
rentings  of  real  property,  except  the  rentings  of  lands  leased  for 
agricultiiral  i^urposes,  when  not  for  cash,  shall  be  secured  by  bond 
and  good  security. 

Code,  s.   1590;   1891,  c.  83;   1901,  c.  97;   R.  C,  c.  54,  9.  26;   1793,  c.  391. 

1789.  May  lease  lands,  when.  The  guardian  may  lease  the 
lands  of  an  infant  for  a  term  not  exceeding  the  end  of  the  current 
year  in  which  the  infant  shall  come  of  age,  or  die  in  nonage.  But 
no  guardian  without  leave  of  the  clerk  of  the  superior  court,  shall 
lease  any  land  of  his  ward  without  impeachment  of  waste,  or  for 
a  term  of  more  than  three  years,  unless  at  a  rent  not  less  than  three 
per  centum  on  the  assessed  taxable  value  of  the  land. 

Code,  s.  1591;  R.  C,  c.  54,  s.  25;  1762,  c.  69,  s.  13;   1794,  c.  413,  s.  2. 

1790.  When  timber  may  be  sold.    In  case  the  land  can  not  be 

rented  for  enough  to  pay  the  taxes  and  other  dues  thereof,  and 
there  is  not  money  sufficient  for  that  jmrpose,  the  guardian,  with 
the  consent  of  the  clerk  of  the  superior  court,  may  anniuilly  dispose 
of,  or  use  so  much  of  the  lightwood,  and  box  or  rent  so  many  pine 
trees,  or  sell  so  much  of  the  timber  on  the  same,  as  may  raise  enough 
to  pay  the  taxes  and  other  duties  thereon  and  no  more. 

Code,  s.  1596;  R.  C,  c.  54,  s.  27;   1762,  e.  09,  s.  14;   18C8-9,  c.  201,  s.  33. 

1791.  Plate  and  jewelry  to  be  kept.  All  plate  and  jewelry  shall 
be  preserved  and  delivered  to  the  ward  at  age,  in  kind,  according  to 
weight   and   quantity. 

Code,  s.  1597;   1895,  c.  74;   1S68-9,  c.  201,  s.  34. 

1792.  Funds  invested  by  fiduciaries.  Guardians,  trustees,  and 
others  acting  in  a  fiduciary  capacity,  lun'ing  surplus  funds  of  their 
wards  and  cestuis  que  trustent  to  loan,  may  invest  in  United  States 
bonds,  or  any  securities  for  which  the  United  States  are  responsible, 
or  in  consolidated  bonds  of  the  state  of  North  Carolina,  and  in  set- 
tlements by  guardians,  trustees  and  others  acting  in  a  fiduciary 
capacity,  such  bonds  or  other  security  of  the  United  States,  and 
such  bonds  of  the  state  of  North  Carolina,  shall  be  deemed  cash  to 


171)2  GUAEDIAN— 7.  Powers  and  Duties.  Ch.  38 

the  amount  actually  paid  for  same,  including  the  premium,  if  any 

paid  for  such  bonds  or  other  securities,  and  may  be  paid  as  such 

by  the  transfer  thereof  to  the  persons  entitled. 

Code,  s.  1594;   1870-1,  e.  197;   1885,  c.  389. 

Note.     For  interest  guardian  notes  bear,  see  s.  19.').3. 

1 793.  Deposit  of  trust  funds,  at  fiduciaries'  risk.  No  provision 

in  any  charter  or  certificate  of  organization  of  any  corporation  per- 
mitting deposits  therein  by  any  guardian,  executor  or  other  trustee 
or  fiduciary,  or  by  any  county,  bonded  or  other  ofiicer,  shall  operate 
or  be  construed  to  relieve  or  discharge  them,  or  either  of  them,  from 
ofiicial  responsibility,  or  to  relieve  them,  or  either  of  them,  or  their 
sureties,  from  liability  on  their  ofiicial  bonds. 
1889,  e.  470. 

1794.  Executor  of  deceased,  pays  money  to  clerl<.  in  all  cases 

where  a  guardian  of  any  minor  child  or  of  an  idiot,  lunatic,  ine- 
briate or  insane  person  shall  die,  it  shall  be  competent  for  the 
executor  or  administrator  of  such  deceased  guardian,  at  any  time 
after  the  grant  of  letters  testamentary  or  of  administration,  to  pay 
into  the  oflSce  of  the  clerk  of  the  superior  court  of  the  county  where 
such  deceased  guardian  was  appointed,  any  moneys  belonging  to 
any  such  minor  child,  idiot,  lunatic,  insane  person  or  inebriate,  and 
any  such  payment  shall  have  the  effect  to  discharge  the  estate  of  said 
deceased  guardian  and  his  sureties  upon  his  guardian  bond  to  the 
extent  of  the  amount  so  paid. 

Code,  s.  1622;   1881,  c.  301,  s.  2. 

1795.  When  liable  for  debts.  Every  guardian  shall  diligently 
endeavor  to  collect,  by  all  lawful  means,  all  bonds,  notes,  obligations 
or  moneys  due  his  ward  when  any  debtor  or  his  sureties  are  likely 
to  become  insolvent,  on  pain  of  being  liable  for  the  same. 

Code,  s.  1593;  R.  C,  c.  54,  s.  23;  1762,  c.  69,  s.  10;  1868-9,  c.  201,  s.  30. 

1 796.  Liable  for  land  sold  for  taxes.  If  any  guardian  suffer  his 
ward's  lands  to  lapse  or  become  forfeited  or  be  sold  for  nonpayment 
of  taxes  or  other  dues,  he  shall  be  liable  to  answer  for  the  full  value 
thereof  to  his  ward. 

Code,  s.   1595;   R.  C,  c.  54,  s.  27;   1762,  c.  69,  s.  14;   1868-9,  c.  201,  s.  32. 

1 797.  Liable  for  costs,  when.  All  fees  and  costs  of  the  superior 
court  for  issuing  orders,  citations,  summonses  or  other  process  against 
guardians  for  their  supposed  defaults,  shall  be  paid  by  the  party 
found  in  default. 

Code,  s.  1611;  1868-9,  c.  201,  s.  48. 

Note.     For  duty  of  guardian  to  pay  owelty,  see  s.  2497. 
547 


1798  GUAEDIAN— 7/.  Estates  Sold.  Ch.  38 

VI.     Estates   Sold. 

1798.  By  special  proceeding;  approved  by  judge.  On  applica- 
tion of  the  guardian  by  petition,  verified  npun  oatli,  to  tlie  superior 
court,  allowing  that  the  interest  of  the  ward  would  be  materially 
promoted  by  the  sale  of  any  part  of  his  estate,  real  or  personal,  the 
proceeding  shall  be  conducted  as  in  other  cases  of  special  proceed- 
ings; and  the  truth  of  the  matter  alleged  in  the  petition  being  ascer- 
tained by  satisfactory  proof,  a  decree  may  thereupon  be  made  that 
a  sale  be  had  by  such  person,  in  such  way  and  on  such  terms  as  may 
be  most  advantageous  to  the  interest  of  the  ward ;  but  no  sale  shall 
be  made  until  approved  by  the  judge  of  the  court,  nor  shall  the 
same  be  valid,  nor  any  conveyance  of  title  made,  lanless  confirmed 
and  directed  by  the  judge,  and  the  proceeds  of  the  sale  shall  be  exclu- 
sively applied  and  secured  to  such  purposes  and  on  such  tnists  as 
the  jiidge  shall  specify. 

Code,  s.   1602;   E.  C.  e.  54,  ss.  32,  33;    1827,  c.  33;    1868-9,  c.  201,  s.  39. 

1799.  Property  and  fund  iieid  on  same  trusts.  Whenever,  in 

consequence  of  any  sale  imder  the  preceding  section,  the  real  or 
personal  pi-operty  of  the  ward  is  saved  from  demands  to  which  in 
the  first  instance  it  may  be  liable,  the  final  decree  shall  declare  and 
set  apart  a  portion  of  the  personal  or  real  estate  thus  saved,  of  value 
equal  to  the  real  and  personal  estate  sold,  as  property  exchanged  for 
that  sold ;  and  in  all  such  cases  of  sale,  whereby  real  is  substituted 
by  persona],  or  personal  by  real  property,  the  beneficial  interest  in 
the  property  acquired  shall  be  enjoyed,  alienated,  devised  or  be- 
queathed, and  shall  descend  and  be  distributed,  as  by  law  the  prop- 
erty sold  might  and  would  have  been,  had  it  not  been  sold,  until 
it  be  reconverted  from  the  character  thus  impressed  upon  it  b}'  some 
act  of  tlie  owner,  and  restored  to  its  character  proper. 

Code,  s.   1603;   R.  C,  e.  54,  s.  33;    1827,  c.  33,  s.  2;    1868-9,  c.  201,  s.  40. 

1800.  Sold  to  pay  ward's  debts.  When  a  guardian  has  notice 
of  a  debt  or  demand  against  the  estate  of  his  ward,  he  may  a])]ily 
by  petition,  setting  forth  the  facts  to  the  clerk  of  the  superior  court 
wliercin  the  guardiansliip  was  gi-anted,  for  an  order  to  sell  so  much 
of  the  personal  or  real  estate  as  may  be  sufficient  to  discharge  such 
debt  or  demand ;  and  the  order  of  the  court  shall  particularly  specify 
what  property  is  to  be  sold  and  the  terms  of  sale;  but  no  real  estate 
shall  be  sold  under  this  section,  in  any  case,  without  the  revision  and 
confirmation  of  the  order  therefor  by  the  judge  of  the  superior  court. 

Code,  s.  1604;  R.  C,  c.  54,  s.  34;   1789,  c.  311,  s.  5;   1868-9,  c.  201,  s.  41. 

1801.  Proceeds  assets  for  creditors;  reached  as  against  ex- 
ecutors.     The  proceeds  of  sale  under  tlio  preceding  section  shall 


1801  GUAEDIAN— y/.  Estates  Sold.  Ch.  38 

be  considered  as  assets  in  the  hands  of  the  guardian  for  the  benefit 
of  creditors,  in  like  manner  as  assets  in  the  hands  of  a  personal  rep- 
resentative ;  and  the  same  proceedings  may  be  had  against  the  guard- 
ian with  respect  to  such  assets  as  might  be  taken  against  an  executor, 
administrator  or  collector  in  similar  cases. 

Code,  s.  1605;  R.  C,  c.  54,  s.  34;   1789,  c.  311,  s.  5;   1868-9,  e.  201,  s.  42. 


Note.     For  coiivcj'ances  by  infant  trustees,  see  s.  1036. 

VII.     Returns  and  Accounting. 

1802.  First,  within  three  months.    Every  guardian,  within  three 

months  after  his  appointment,  shall  exhibit  an  account,  upon  oath, 
of  the  estate  of  his  ward,  to  the  clerk  of  the  superior  court;  but  such 
time  may  be  extended  by  the  clerk  of  the  siiperior  court,  on  good 
cause  shown,  not  exceeding  six  months. 

Code,  s.  1577;   R.  C,  c.  54,  s.  11;   1762,  c.  69,  s.  9;   1868-9,  c.  201,  s.  14. 

1803.  Compelled  by  attachment.  In  cases  of  default  to  exhibit 
the  return  required  by  the  preceding  section,  the  clei'k  of  the  supe- 
rior court  must  issue  an  order  requiring  the  guardian  to  file  such 
return  forthwith,  or  to  show  cause  why  an  attachment  should  not 
issue  against  him.  If,  after  due  service  of  the  order,  the  guardian 
does  not,  on  the  return  day  of  the  order,  file  such  return,  or  obtain 
fiirther  time  to  file  the  same,  the  clerk  of  the  superior  court  shall 
issue  an  attachment  against  him,  and  commit  him  to  the  common 
jail  of  the  county,  till  he  files  such  return. 

Code,  s.  1578;   R.  C,  c.  54,  s.  12;   1762,  c.  69,  s.  15;   1868-9,  c.  201,  s.  15. 

1804.  To  be  made  of  new  assets.  Whenever  further  property 
of  any  kind,  not  included  in  any  previous  return,  comes  to  the  hands 
or  knowledge  of  any  guardian,  he  must  caiise  the  same  to  be  returned 
within  three  months  after  the  possession  or  discovery  thereof;  and 
the  making  of  such  return  of  new  assets,  froni  time  to  time,  may  be 
enforced  in  the  same  manner  as  prescribed  in  the  preceding  section. 

Code,  s.   1579;    1868-9,  c.  201,  s.   16. 

1805.  Annual  accounts.  Every  guardian  shall,  within  twelve 
months  from  the  date  of  his  qualification  or  appointment,  and  annu- 
ally, so  long  as  any  of  the  estate  remains  in  his  control,  file,  in  the 
office  of  the  clerk  of  the  superior  court,  an  inventoi-y  and  account, 
under  oath,  of  the  amount  of  property  received  by  him,  or  invested 
by  him,  and  the  manner  and  natiire  of  such  investment,  and  his 
receipts  and  disbursements  for  the  past  year  in  the  form  of  debit 
and  credit.  He  must  produce  vouchers  for  all  payments.  The  clerk 
of  the  superior  court  may  examine  on  oath  such  accounting  party. 


1805         GUARDIAlSr— y//.  Returns  and  Accounting.         Ch.  38 

or  any  other  person,  concerning  the  receipts,  disbursements  or  any 
other  matter  relating  to  the  estate ;  and  having  carefully  revised  and 
audited  such  account,  if  he  approve  the  same,  he  must  indorse  his 
approval  thereon,  which  shall  he  deemed  prima  facie  evidence  of 
correctness. 

Code,  s.  1617;  R.  C,  c.  54,  ss.  11,  12;  1762,  e.  69,  ss.  9,  15;  1871-2,  c.  46. 

1806.  Compelled  by  attachment  and  removal.  If  any  g-uardian 

omit  to  account,  as  directed  in  the  j^receding  section,  or  renders  aii 
insufficient  and  unsatisfactory  accoimt,  the  clerk  of  the  superior  court 
shall  forthwith  order  such  guardian  to  render  a  full  and  satisfactory 
account,  as  required  by  law,  within  twenty  days  after  ser\'ice  of  the 
order.  Upon  return  of  the  order,  duly  served,  if  such  guardian  fail 
to  appear  or  refuse  to  exhibit  siTch  account,  the  clerk  of  the  superior 
court  may  issue  an  attachment  against  him  for  contempt  and  commit 
him  till  he  exhibits  such  account,  and  may  likewise  remove  him  from 
office. 

Code,  s.  1618;  C.  C.  P.,  s.  479. 

1807.  Final  account.  A  guardian  may  be  required  to  file  such 
account  at  any  time  after  six  months  from  the  ward's  coming  of 
full  age  or  the  cessation  of  the  guardianship ;  but  such  account  may 
he  filed  voluntarily  at  any  time,  and,  whether  the  accounting  be  vol- 
untary or  compulsory,  it  shall  be  audited  and  recorded  by  the  clerk 
of  the  superior  court. 

Code,  s.  1619;  C.  C.  P.,  s.  481. 

1808.  Allowed  reasonable  disbursements  and  expenses.  Every 

guardian  may  charge  in  his  annual  accoTint  all  reasonable  disbiirse- 
ments  and  expenses;  and  if  it  appear  that  he  hath  really  and  bona 
fide  disbursed  more  in  one  year  than  the  profits  of  the  ward's  estate, 
for  his  education  and  maintenance,  the  guardian  shall  be  allowed  and 
paid  for  the  same  out  of  the  profits  of  the  estate  in  any  other  year ; 
but  such  disbursements  must,  in  all  cases,  be  suitable  to  the  degree 
and  circumstances  of  the  estate  of  the  ward. 

Code,  s.  1612;  R.  C,  c.  54,  s.  28;  1762,  c.  69,  ss.  18,  19;  1799,  c.  536,  s.  2; 
1868-9,  c.  201,  3.  49. 

Note.     See  s.  1769. 

1809.  Commissions.  The  superior  court  shall  allow  commissions 
to  the  g-uardian  for  his  time  and  trouble  in  the  management  of  the 
ward's  estate,  in  the  same  manner  and  under  the  same  rules  and 
restrictions  as  allowances  are  made  to  executors^  administrators  and 
collectors. 

Code,  s.  1613;  R.  C,  c.  54,  s.  28;  1762,  c.  69,  ss.  18,  19;   1868-9,  c.  201,  s.  50. 


Note.     For  lialiility  in  permitting  land  sold  for  taxes,  see  s.  2862. 
550 


1810  GUARDIAN— 77/7.   When  no  Gum-dim.  Ch.  38 

VIII.     Estate  Protected  when  no  Guardian. 

1810.  Duty  of  grand  jury  relating  to  orphans;  clerk  to  furnish 

it  list  of  guardians.  The  grand  jury  of  every  county  is  charged  with, 
and  shall  present  to  the  superior  court  the  names  of  all  orphan  chil- 
dren that  have  no  guardian  or  are  not  bound  out  to  some  trade  or 
employment.  They  shall  further  inquire  of  all  abuses,  mismanage- 
ment and  neglect  of  all  such  guardians  as  are  appointed  by  the 
clerk  of  the  superior  court.  The  clerk  of  the  superior  court  shall, 
at  each  term  of  the  superior  conrt,  lay  before  the  grand  jury  a  list 
of  all  the  guardians  acting  in  his  county  or  appointed  by  him. 
Code,  s.  1609;  R.  C,  c.  54,  s.  18;   1762,  c.  69,  s.  17;   1868-9,  c.  201,  s.  46. 

1811.  Solicitor  to  apply  for  receiver,  when.    Whenever  an 

orphan,  having  any  estate,  is  presented  by  a  grand  jury,  for  whom 
no  suitable  person  will  become  guardian,  the  clerk  of  the  superior 
court  must  give  notice  thereof  forthwith  to  the  solicitor  of  the  state 
for  the  judicial  district,  who  shall  apply  in  behalf  of  the  orphan  to 
the  judge  of  the  superior  court  of  the  county  where  such  presentment 
was  made,  to  the  end  that  a  receiver  be  appointed. 

Code,  s.  1610;   R.  C,  c.  54,  s.   19;   1846,  c.  43;   1868-9,  c.  201,  s.  47. 

1812.  Action  brought  by  solicitor.  Whenever  any  guardian  is 
removed,  and  no  person  is  appointed  to  succeed  in  the  guardianship, 
the  clerk  of  the  superior  court  shall  certify  the  name  of  such  guard- 
ian and  his  sureties  to  the  solicitor  of  the  judicial  district,  who 
shall  forthwith  institute  an  action  on  the  bond  of  the  guardian  in 
the  superior  court,  for  securing  the  estate  of  the  ward. 

Code.  s.  1584;   R.  C,  c.  54,  s.  14;    1844,  c.  41;   1868-9,  c.  201,  s.  21. 

1813.  Receiver   appointed.     The  judge  of  the   superior  court, 

either  residing  in  or  presiding  over  the  courts  of  the  district,  before 
whom  such  action  is  brought,  shall  have  power  to  appoint  the  clerk 
of  the  superior  court  or  some  discreet  person  as  a  receiver  to  take 
possession  of  the  ward's  estate,  to  collect  all  moneys  due  to  him, 
to  secure,  lend,  invest  or  apply  the  same  for  the  benefit  and  advantage 
of  the  ward,  under  the  direction  and  subject  to  such  rules  and  orders 
in  every  respect  as  the  said  judge  may  from  time  to  time  make  in 
regard  thereto ;  and  the  accounts  of  such  receiver  shall  be  returned, 
audited  and  settled  as  the  judge  may  dii'ect.  The  receiver  shall  be 
allowed  siich  amounts  for  his  time,  trouble  and  responsibility  as 
seem  to  the  judge  reasonable  and  proper;  and  such  receivership  may 
be  continued  until  a  siiitable  person  can  be  procured  to  take  the 
guardianship. 

Code,  s.   1.585;   R.  C,  c.  54,  s.   15;    1844,  c.  41,  s.  2;    1868-9,  c.  201,  s.   22. 


18U  GUARDIAN— T7//.    When  no  Guardian.  Ch.   38 

1814.  Property  obtained  from  receiver.  When  another  guardian 

is  appointed,  lie  may  ajiply  hy  motion,  (ui  notice,  to  the  judge  of  the 
superior  court  for  an  order  upon  the  receiver  to  pay  over  all  the 
money,  estate  and  effects  of  the  ward;  and  if  no  STich  guardian  is 
appointed,  then  the  ward,  on  coming  of  age,  or  in  case  of  his  death, 
his  executor,  administrator  or  collector,  and  the  heir  or  personal 
representative  of  the  idiot,  lunatic  or  insane  person,  shall  have  the 
like  remedy  against  the  receiver. 

Code,  s.  1587;  R.  C,  c.  54,  s.  17;   1844,  c.  41,  s.  4;   1868-9,  c.  201,  s.  24. 

1815.  Solicitor  shall  prosecute  action.  The  solicitor  shall  prose- 
cute the  action  and  take  all  necessary  orders  therein,  and  for  his 
services  shall  be  allowed  such  reasonable  compensation  as  may  be 
just,  not  to  exceed  ten  dollars;  in  passing  on  the  returns  of  receiv- 
ers, where  the  estate  of  the  infant  does  not  exceed  iive  hundred 
dollars,  not  to  exceed  five  dollars ;  and  where  the  estate  exceeds  five 
hundred  dollars,  not  to  exceed  ten  dollars.  The  amount  in  each  case 
to  be  fixed  by  the  judge. 

Code,  s.  1586;  1895,  c.  14;  R.  C,  c.  54,  s.  16;  1844,  e.  41,  s.  3;  1868-9, 
c.  201.  s.  23. 


Note.     For  law  directing  use  of  estates  less  tlian  twenty  dollars  in  value,  see 
s.  924. 

IX.     Foreign  Guardians. 

1816..  May  have  ward's  estate  removed.    Where  any  ward, 

idiot,  lunatic  or  insane  person,  residing  in  another  state  or  territory, 
or  in  the  District  of  Columbia,  is  entitled  to  any  personal  estate  in 
this  state,  or  jjersonal  property  substituted  for  realty  by  decree  of 
court,  or  to  any  money  arising  from  the  sale  of  real  estate,  whether 
the  same  be  in  the  hands  of  any  guardian  residing  in  this  state,  or 
of  any  executor,  administrator  or  other  person  holding  for  the  wai'd, 
idiot,  lunatic  or  insane  person,  or  if  the  same  (not  being  adversely 
held  and  claimed)  be  not  in  the  lawful  possession  or  control  of  any 
person,  the  guardian  of  the  ward,  idiot,  lunatic  or  insane  person, 
duly  appointed  at  the  place  where  such  ward,  idiot,  lunatic  or  insane 
person  resides,  may  apply  to  have  such  estate  removed  to  the  resi- 
dence of  the  ward,  idiot,  lunatic  or  insane  jierson  by  petition  filed 
before  the  clerk  of  the  superior  court  of  the  county  in  Avhich  the 
property  or  some  portion  thereof  is  situated ;  which  shall  be  pro- 
ceeded with  as  in  other  cases  of  special  proceedings. 

Code,  ss.   1.598,  1601;   R.  C,  c.  54,  s.  29;    1820,  c.   1044;    1842,  c.  38;    1868-9, 
c.  201,  ss.  35.  38;   1874-5,  c.  1G8. 

1817.    What  petition  must  show.    The  petitioner  must  show  to 
the  court  a   copy  of  his   appointment   as  guardian   and  bond   duly 

552 


1817  GUAEDIAJST— /Z.  Foreign   Guardians.  Ch.  38 

authenticated,  and  must  prove  to  the  court  that  the  bond  is  suffi- 
cient, as  well  in  the  ability  of  the  sureties  as  in  the  sum  mentioned 
therein,  to  secure  all  the  estate  of  the  ward  wherever  situated. 

Code,  s.  1599;  R.  C,  c.  54,  s.  30;  1S20,  c.  1044,  s.  2;  1842,  c.  38;  1868-9, 
c.  201,  s.  36. 

1818.  Who  may  be  made  defendants.  Any  person  may  be  made 
a  party  defendant  to  the  proceeding  who  is  specified  in  section  four 
hundred  and  ten. 

Code,  s.   1600;   R.  C,  c.  54,  s.  30;    1868-9,  c.  201,  s.  37. 


Note.     For  rate  of  interest  guardian  notes  to  bear,  see  Interest,  s.  1953. 
For  guardians  of  idiots,  inebriates  and  lunatics,  see  Idiots,  etc.,  ss.  1890-1895. 
For  cross-index  of  appointments  of  guardians,  see  Clerk  Superior  Court,  s.  915. 
For  payment  of  owelty  of  partition  due  by  ward,  see  s.  2497. 


CHAPTEE  39. 
HABEAS  CORPUS. 

Sections. 
1.     Generally,  1819—1820 

II.     The  application,  1821—1826 

III.  The  writ,  1827—1829 

IV.  The  return,  1830—1833 
V.     Obedienc?  compelled.                                                1834 — 1842 

VI.     Proceedings  and  judgment,  184.3 — 1852 

VII.     Custody  of  children,  1853 — 1854 

VIII.     Ad  testificandum,  1855—1861 

I.     Genekally. 

1819.  Cause  of  restraint  of  liberty  enquired  into.  Every  person 

restrained  of  his  liberty  is  entitled  to  a  remedy  to  euqtiire  into  the 
lawfulness  thereof,  and  to  remove  the  same,  if  uulawfttl ;  and  such 
remedy  oug-ht  not  to  be  denied  or  delayed. 
Const.,  Art.  I.,  s.  IS. 


1820.  Habeas  corpus  shall  not  be  suspended. 

I  the  writ  of  habeas  corpus  shall  not  be  suspended. 

Const..  Art.  I.,  s.  21. 


The  privileges 
of  the  writ  of  habea; 
Const.,  Art.  I.,  s.  21. 


IT.      The  Application. 

1821.  Who  may  prosecute  writ.  Every  person  imprisoned  or 
restrained  of  his  liberty  within  this  state,  for  any  criminal  or  sup- 
posed  criminal  matter,   or  on  any  pretense  whatsoever,  except  in 

5.^3 


1821  HABEAS  CORPUS— 77.  The  Application.  Ch.  39 

cases  specified  in  the  succeeding  section,  may  prosecute  a  wi-it  of 
habeas  corpus,  according  to  the  provisions  of  this  chapter,  to  inquire 
into  the  caiise  of  such  imprisonment  or  restraint,  and  if  illegal,  to 
be  delivered  therefrom. 

Code,  s.  1023;   1868-9,  c.  116,  s.  1. 

1822.  When  denied.  Application  to  prosecute  the  writ  shall  be 
denied  in  the  following  cases: 

1.  Where  the  persons  are  committed  or  detained  by  virt\ie  of 
process  issued  by  a  court  of  the  United  States,  or  a  judge  thereof, 
in  cases  where  such  courts  or  judges  have  exclusive  jurisdiction 
under  the  laws  of  the  United  States,  or  shall  have  acquired  exclusive 
jurisdiction  by  the  commencement  of  suits  in  such  court*. 

2.  Where  persons  are  committed  or  detained  by  virtue  of  the  final 
order,  judgment  or  decree  of  a  competent  tribunal  of  civil  or  crimi- 
nal jurisdiction,  or  .by  virtue  of  an  execution  issued  u])on  such  final 
order,  judgment  or  decree. 

3.  Where  any  person  has  wilfully  neglected,  for  the  space  of  two 
whole  terms  after  his  imprisonment,  to  ajipl^y  for  the  writ  to  the 
superior  court  of  the  county  in  which  he  may  be  imprisoned,  such 
person  shall  not  have  a  habeas  corpus  in  vacation  time  for  his 
enlargement. 

4.  Where  no  probalile  ground  for  relief  is  shown  in  the  applica- 
tion. 

Code,  s.   1624;    1868-9,  c.   116,  s.  2. 
Note.     See  s.  1848. 

1823.  By  whom  made.  Application  for  the  writ  may  be  made 
either  by  the  party  for  whose  relief  it  is  intended,  or  by  any  person 
in  his  behalf. 

Code,  s.  1G25;   1868-9,  c.  110,  s.  3. 

1824.  How  and  to  whom.  Application  for  the  writ  shall  be  made 
in  writing,  signed  by  the  applicant — 

1.  To  any  one  of  the  justices  of  the  supreme  court. 

2.  To  any  one  of  the  superior  court  judges,  either  at  term  time 
or  in  vacation. 

Code,  s.  1026;   1868-9,  e.  116,  s.  4. 

1825.  What  it  must  state.  The  application  nnist  state  in  sub- 
stance, as  follows : 

1.  That  the  party,  in  whose  behalf  the  writ  is  aiii)lied  for,  is 
imprisoned  or  restrained  of  his  liberty,  the  jdace  where,  and  the 
officer  or  person  by  whom  he  is  imprisoned  or  restrained,  naming' 
both  parties,  if  their  names  are  known,  or  describing  tlicni  if  tlioy 
are  not  known. 


1825  HABEAS  CORPUS— 77.  The  Applcafion.  Ch.  39 

2.  The  cause  or  pretense  of  such  imprisonment  or  restraint,  ac- 
cording to  the  knowledge  or  belief  of  the  applicant. 

3.  If  the  imprisonment  is  by  virtue  of  any  warrant  or  other  pro- 
cess, a  copy  thereof  shall  be  annexed,  or  it  shall  be  made  to  appear 
that  a  copy  thereof  has  been  demanded  and  refused,  or  that  for  some 
sufficient  reason  a  demand  for  such  copy  could  not  be  made. 

4.  If  the  imprisonment  or  restraint  be  alleged  to  be  illegal,  the 
application  must  state  in  what  the  alleged  illegality  consists;  and 
that  the  legality  of  the  imprisonment  or  restraint  has  not  been 
already  adjudged,  upon  a  prior  writ  of  habeas  corpus,  to  the  knowl- 
edge or  belief  of  the  applicant. 

5.  The  facts  set  forth  in  the  application  must  be  verified  by  the 
oath  of  the  applicant,  or  by  that  of  some  other  credible  witness,  which 
oath  may  be  administered  by  any  person  aiithorized  by  law  to  take 
affidavits. 

Code,  s.  1G27;   1868-9,  c.   116,  s.  5. 

1826.  When  issued  without.  Whenever  the  siiprem.e  or  superior 
court,  or  any  judge  of  either,  shall  have  evidence  from  any  judicial 
I"iroceeding  before  such  court  or  judge,  that  any  person  within  this 
state  is  illegally  imprisoned  or  restrained  of  his  liberty,  it  shall  be 
the  duty  of  said  court  or  judge  to  issue  a  writ  of  habeas  corpus  for 
his  relief,  although  no  application  be  made  for  such  writ. 

Code,  s.  1632;   1868-9,  c.   116,  s.   10. 

III.     The   Writ. 

1827.  When  granted.  Any  court  or  judge  empowered  to  grant 
the  writ,  to  whom  such  applications  may  be  presented,  shall  grant 
the  writ  without  delay,  unless  it  appear  from  the  application  itself 
or  from  the  documents  annexed  that  the  person  applying  or  for 
whose  benefit  it  is  intended  is,  by  this  chapter,  prohibited  from  prose- 
cuting the  writ. 

Code,  a.  1628;   1868-9,  c.  116,  s.  6. 

1828.  Penalty  for  refusal  to  grant.  If  any  judge  authorized  by 
this  chapter  to  grant  writs  of  habeas  corpus  shall  refuse  to  grant  such 
writ  when  legally  applied  for,  every  such  judge  shall  forfeit  to  the 
party  aggTieved  two  thousand  five  hundred  dollars. 

Code,  s.  1631;  1868-9,  c.  116,  s.  9. 

1829.  When  sufficient.  Xo  writ  of  habeas  corpus  shall  be  dis- 
obeyed on  account  of  any  defect  of  form.     It  shall  be  sufficient — 

1.  If  the  person  having  the  custody  of  the  party  imprisoned  or 
restrained  be  designated  either  by  his  name  of  office,  if  he  have  any. 


1829  HABEAS  CORPUS— 77/.  The  ^Yrit.  Ch.  39 

or  by  his  own  name,  or  if  both  such  names  be  unknown  or  uncertain, 
he  may  be  described  by  an  assumed  appellation,  and  any  one  who 
may  be  served  with  the  writ  shall  be  deemed  the  person  to  whom  it  is 
directed,  although  it  may  be  directed  to  him  by  a  wrong  name,  or 
description,  or  to  another  person. 

2.  If  the  person  who  is  directed  to  be  produced  be  designated  by 
name,  or  if  his  name  be  uncertain  or  unknown,  he  may  be  described 
by  an  assumed  appellation  or  in  any  other  w^ay,  so  as  to  designate 
the  person  intended. 

Code,  ss.  1629,  1630;   1868-9,  c.  116,  ss.  7,  8. 

lY.     The  Return. 

1830.  When  returnable.  Writs  of  habeas  corpus  may  be  made 
returnable  at  a  certain  time,  or  forthwith,  as  the  case  may  require. 
If  the  writ  be  returnable  at  a  certain  time,  such  return  shall  be 
made  and  the  party  shall  be  produced  at  the  time  and  place  specified 
therein. 

Code,  s.  1656;  1868-9,  c.  116,  s.  31. 

1831.  What  to  contain;  when  verified.  The  person  or  officer  on 

whom  the  writ  is  served  must  make  a  return  thereto  in  writing,  and, 
except  where  such  person  shall  be  a  sworn  p\iblic  officer  and  shall 
make  his  return  in  his  official  capacity,  it  must  be  verified  by  his 
oath.     The  return  must  state  plainly  and  unequivocally  — 

1.  Whether  he  have  or  have  not  the  party  in  his  custody  or  under 
his  power  or  restraint. 

2.  If  he  have  the  party  in  his  custody  or  power,  or  under  his 
restraint,  the  authority  and  the  cause  of  such  imprisonment  or 
restraint,  setting  forth  the  same  at  large. 

3.  If  the  party  be  detained  by  virtue  of  any  writ,  warrant,  or 
other  written  authority,  a  copy  thereof  shall  be  annexed  to  the  return  ; 
and  the  original  shall  be  produced  and  exhibited  on  the  return  of 
the  writ  to  the  court  or  judge  before  Avhom  the  same  is  returnable. 

4.  If  the  person  or  officer  \i])on  whom  such  writ  is  served  shall 
have  had  the  party  in  his  power  or  custody,  or  \inder  his  restraint, 
at  any  time  prior  or  subsequent  to  the  date  of  the  writ,  but  has  trans- 
ferred such  custody  or  restraint  to  another,  the  return  shall  state 
laarticulai'ly  to  whom,  at  what  time,  for  what  cause  and  by  what 
authority  such  transfer  took  place. 

Code,  s.   1633;   1868-9,  c.  116,  s.  11. 

1832.  Body  produced,  when.  If  the  writ  require  it,  the  officer 
or  person  on  whom  the  same  has  been  served  shall  also  produce  the 
lx)dy  of  the  party  in  his  custody  or  power,  according  to  the  command 


1832  HABEAS   COKPUS— 77.  The  Eeturn.  Ch.   39 

of  the  writ,  except  in  the  case  of  the  sickness  of  snch  ]iarty,  as  here- 
inafter provided. 

Code,  s.  1636;   1S68-9,  c.  116,  s.  14. 

1833.  Served,  how  and  by  whom.  The  writ  of  habeas  corpus 
may  be  served  by  any  qualilied  elector  of  this  state, thereto  authorized 
liy  the  court  or  judge  allowing  the  same.  It  may  be  served  by  deliv- 
I'ving  the  writ,  or  a  copy  thereof,  to  the  person  to  whom  it  is  directed ; 
or,  if  such  person  can  not  be  found,  by  leaving  it,  or  a  copy,  at  the 
jail,  or  other  jilace  in  which  the  party  for  whose  relief  it  is  intended 
is  confined,  with  some  under  officer  or  other  person  of  proper  age; 
or,  if  none  such  can  be  found,  or  if  the  person  attempting  to  serve 
tlie  writ  be  refused  admittance,  by  affixing  a  copy  thereof  in  some 
conspicuous  place  on  the  outside,  either  of  the  dwelling-house  of  the 
[larty  to  whom  the  writ  is  directed,  or  of  the  place  where  the  party 
is  confined  for  whose  relief  it  is  sued  out. 

Code,  s.  1657;   1868-9,  c.  116,  s.  32. 

V.     Obedience   Compelled. 

1834.  Attachment  for  failure  to  obey.  If  the  person  or  officer 

on  whom  any  writ  of  habeas  corpus  shall  have  been  duly  served  shall 
refuse  or  neglect  to  obey  the  same,  by  producing  the  body  of  the 
party  named  or  described  therein,  and  by  making  a  full  and  explicit 
return  thereto,  within  the  time  required,  and  no  sufficient  excuse  be 
shown  for  such  refusal  or  neglect,  it  shall  be  the  duty  of  the  court 
or  judge  before  whom  the  writ  shall  have  been  made  returnable, 
upon  due  proof  of  the  service  thereof,  forthwith  to  issue  an  attach- 
ment against  such  person  or  officer,  directed  to  the  sheriff  of  any 
county  within  this  state,  and  commanding  him  forthwith  to  appre- 
hend such  person  or  officer  and  bring  him  immediately  before  such 
court  or  judge,  and  on  being  so  brought  such  person  or  officer  shall 
be  committed  to  close  custody  in  the  jail  of  the  county  where  such 
court  or  judge  may  be,  without  being  allowed  the  liberties  thereof, 
until  such  person  or  officer  make  return  to  such  writ  and  comply 
with  any  order  that  may  be  made  by  such  court  or  judge  in  rela- 
tion to  the  party  for  whose  relief  the  writ  shall  have  been  issued. 
Code,  s.  1637;   1868-9,  c.  116,  s.  15. 

1835.  Penalty,  judge  refusing  attachment.  If  any  judge  shall 

wilfully  refuse  to  grant  the  writ  of  attachment,  as  provided  for  in 
the  preceding  section,  he  shall  be  liable  to  impeachment,  and  more- 
over shall  forfeit  to  the  party  aggTieved  twenty-five  hundred  dollars. 
Code,  s.   1638;   1870-1,  c.  221,  s.  2. 


1836       HABEAS  CORPUS— F.   Obedience  Compelled.       Ch.   39 

1836.  Sheriff  attached,  writ  to  coroner;  penalty.   If  a  sberitf 

shall  have  neglected  to  return  the  writ  njireeably  to  the  command 
thereof,  the  attachment  against  him  may  be  directed  to  the  coi'oner 
or  to  any  other  person  to  be  designated  therein,  who  shall  have  power 
to  execute  the  same,  and  such  sheriff,  npon  being  brought  up,  may 
be  committed  to  the  jail  of  any  county  other  than  his  own. 

Code,  s.   1639;    1868-9,  e.   116,  s.   16. 

1837.  Precept  to  bring  up  party  detained.  The  court  or  judge, 

by  whom  any  such  attachment  may  be  issued,  may  also  at  the  same 
time,  or  afterwards,  direct  a  precept  to  any  sheriff,  coroner,  or  other 
person  to  be  desig-nated  therein,  commanding  him  to  bring  forthwith, 
before  such  court  or  judge,  the  party,  wherever  to  be  found,  for 
whose  benefit  the  writ  of  habeas  corp\is  has  been  granted. 
Code,  s.  1640;   1868-9,  c.  116,  s.  17. 

1838.  Penalty,  judge  refusing  to  grant  precept.   If  any  judge 

shall  refuse  to  grant  the  precept  provided  for  in  the  preceding  sec- 
tion, he  shall  be  liable  to  impeachment,  and  moreover  shall  forfeit  to 
the  party  aggrieved  twenty-five  hundred  dollars. 

Code,  s.  1641;  1870-1,  c.  221,  s.  3. 

1839.  Penalty,  judge  conniving  at  insufficient  return.   If  any 

judge  shall  grant  the  attachment,  or  the  precept,  and  shall  give  the 
officer  or  other  jierson  charged  with  the  execution  of  the  same  ver- 
bal or  written  instructions  not  to  execute  the  same,  or  to  make 
any  evasive  or  insuflicient  return,  or  any  return  other  than  that 
provided  by  law;  or  shall  connive  at  the  failing  to  make  any 
return  or  any  evasive  or  insufficient  return,  or  any  return  other 
than  that  provided  by  law,  he  shall  be  liable  to  impeachment,  and 
moreover  shall  forfeit  to  the  party  aggTieved  twenty-five  hundred 
dollars. 

Code,  s.   1642;    1870-1,  c.   221,  s.  4. 

1840.  Power  of  county  to  aid  service.    In  the  execution  of  any 

such  attachment,  precept  or  \\rit,  the  sheriff,  coroner,  or  other  per- 
son to  whom  it  may  be  directed,  may  call  to  his  aid  the  power 
of  the  county,  as  in  other  cases. 

Code,  s.   1643;   1868-9,  e.   116,  s.   18. 

1841.  Obedience  to  order  of  discharge,  compelled.  Obedience 

to  a  judgment  nr  (irder  for  the  discharge  "f  a  ]irisiiner  or  per.son 
restrained  of  his  liberty,  ]iursuant  to  the  ])rovisions  of  this  chapter, 
may  be  enforced  by  the  court  or  judge  by  attachment  in  tiie  same 
manner  and  with  the  same  effect  as  for  a  neglect  to  make  return  to 
a  writ  of  habeas  corpus;  and  the  jicrson  found  guilty  of  such  dis- 


1S41       HABEAS  CORPUS— 7.  Obedience  Compelled.       Ch.  39 

<;ibedience  shall  forfeit  to  the  party  aggTieved  two  thousand  five  hun- 
dred dollars,  besides  any  special  damages  which  such  party  may  have 
sustained. 

Code,  s.   1649;    18G8-9,  c.   116,  s.  24. 

1842.  Not  liable  civilly  for  obedience.  No  officer  or  other  person 

shall  be  liable  to  any  civil  action  for  obeying  a  judgment  or  order 
"f  discharge  upon  writ  of  habeas  corpus. 
Code,  s.  1650;   1868-9,  c.  116,  s.  25. 

VI.     Proceedings  and  Judgment. 

1843.  Notice  to  interested  parties.  When  it  appears  from  the 
return  to  the  writ  that  the  party  named  therein  is  in  cu.stody  on  any 
]irocess,  or  by  reason  of  any  claim  of  right,  under  which  any  other 
person  has  an  interest  in  continuing  his  imprisonment  or  restraint, 
no  order  shall  be  made  for  his  discharge  until  it  shall  appear  that 
the  person  so  interested,  or  his  attorney,  if  he  have  one,  shall  have 
had  reasonable  notice  of  the  time  and  place  at  which  such  writ  is 
returnable. 

Code,  s.  1634;   1868-9,  c.  116,  s.   12;    1870-1,  e.  221,  s.   1. 

1844.  Notice  to  solicitor.  When  it  appears  from  the  return  that 
such  party  is  detained  upon  any  criminal  accusation,  the  court  or 
judge  may,  if  he  thinks  proper,  make  no  order  for  the  discharge 
of  such  party  until  sufficient  notice  of  the  time  and  place  at  which 
the  writ  shall  have  been  returned,  or  shall  be  made  returnable,  be 
given  to  the  solicitor  of  the  county  in  which  the  person  prosecuting 
the  writ  is  detained. 

Code,  s.  1635;   1868-9,  c.  116,  s.  13. 

1845.  Witnesses  subpoenaed.      Any  party  to  a  proceeding  on 

a  writ  of  habeas  corpus  niay  ])rocure  the  attendance  of  witnesses 
at  the  hearing,  by  subpa?na,  to  be  issued  by  the  clerk  of  any  supe- 
rior court,  iinder  the  same  rules,  regulations  and  penalties  prescribed 
by  law  in  other  cases. 

Code,  s.  1659;   1868-9,  c.  116,  s.  34. 

1846.  Facts  examined  into;  proofs  heard  summarily.     The 

court  or  judge  before  whom  the  party  is  brought  on  a  writ  of  habeas 
corpus  shall,  immediately  after  the  return  thereof,  examine  into 
the  facts  contained  in  such  return,  and  into  the  cause  of  the  con- 
finement or  restraint  of  such  party,  whether  the  same  shall  have 
been  upon  commitment  for  any  criminal  or  supposed  criminal  mat- 
ter or  not;  and  if  issue  be  taken  upon  the  material  facts  in  the 
return,  or  other  facts  are  alleged  to  show  that  the  imprisonment  or 


1846     IIAREAS  CORPUS— T'/.  Proceedings  and  Judg.     Ch.  3!i 

detention  is  illegal,  or  that  the  party  imprisoned  is  entitled  to  bis 
discharge,  the  court  or  judge  shall  proceed,  in  a  summary  way,  to 
hear  the  allegations  and  proofs  on  both  aides,  and  to  do  what  to 
justice  shall  appertain  in  delivering,  bailing  or  remanding  such 
•  party. 

Code,  s.   1G44;   1SG8-9,  c.   116,  s.   19. 

1847.  Party  discharged,  when.    If  no  legal  cause  be  shown  for 

such  imprisdiaucnt  or  restraint,  or  for  the  continuance  thereof,  the 
court  or  judge  shall  discharge  the  party  from  the  custody  or  restraint 
under  which  he  is  held.  But  if  it  appear  on  the  return  to  the  writ 
that  the  party  is  in  custody  by  virtue  of  civil  process  from  any 
court  legally  constituted,  or  issued  by  any  officer  in  the  course  of 
judicial  proceedings  before  him,  authorized  by  law,  such  party  can 
be  discharged  only  in  one  of  the  following  cases : 

1.  Where  the  jurisdiction  of  such  court  or  officer  has  been 
exceeded,  either  as  to  matter,  j^lace,  sum  or  person. 

2.  Where,  though  the  original  imjjrisonment  was  lawful,  yet  by 
some  act,  omission  or  event,  which  has  taken  place  afterwards,  the 
party  has  become  entitled  to  be  discharged. 

3.  Where  the  process  is  defecti^•e  in  some  matter  of  substance 
required  by  law,  rendering  such  process  void. 

4.  Where  the  process,  though  in  proper  form,  has  been  issued  in 
a  case  not  allowed  by  law. 

5.  Where  the  person,  having  the  custody  of  the  party  under  such 
process,  is  not  the  person  empowered  by  law  to  detain  him. 

6.  Where  the  process  is  not  authorized  by  any  judgment,  order 
or  decree  of  any  court,  nor  by  any  provision  of  law. 

Code,  s.  1645;   1868-9,  e.  116,  s.  20. 

1848.  Party  remanded,  when.  It  shall  be  the  duty  of  the  court 

or  judge  forthwith  to  remand  the  party,  if  it  appear  that  he  is 
detained  in  custody,  either — 

1.  By  virtue  of  process  issued  by  any  court  or  judge  of  the  United 
States,  in  a  case  where  such  court  or  judge  has  exclusive  jiirisdic- 
tion. 

2.  By  virtue  of  the  final  judgment  or  decree  of  any  competent 
court  of  civil  or  criminal  jurisdiction,  or  of  any  execution  issued 
upon  such  judgment  or  decree. 

3.  For  any  contempt  specially  and  plainly  charged  in  the  com- 
mitment by  some  court,  officer  or  body,  having  aiitliority  to  commit 
for  the  contempt  so  charged. 

4.  That  the  time  during  which  such  party  may  bo  legally  detained 
has  not  expired. 

Code,  s.  1646;  1868-9,  c.  116,  s.  21. 
Note.     See  s.  1822. 


1849     HABEAS  COEPUS— F/.  Proceedings  and  Judg.      Ch.  39 

1849.  Party  bailed  or  remanded,  when.  If  it  appear  that  the 

party  has  been  legally  conniiitted  for  any  criminal  olfense,  or  if  it 
appear  by  the  testimoily  oifered  with  the  return  of  the  writ,  or  upon 
the  hearing  thereof,  that  the  party  is  guilty  of  such  an  offense, 
although  the  commitment  be  irreg-ular,  the  court  or  judge  shall 
proceed  to  let  such  party  to  bail,  if  the  case  be  bailable  and  good 
bail  be  offered;  if  not,  the  court  or  judge  shall  forthwith  remand 
such  party  to  the  custody  or  place  him  \mder  the  restraint  from 
which  he  was  taken,  if  the  person  or  officer,  under  whose  custody  or 
restraint  he  was,  be  legally  entitled  thereto ;  if  not  so  entitled,  the 
court  or  judge  shall  commit  such  party  to  the  custody  of  the  officer 
or  person  legally  entitled  thereto. 
Code,  s.  1647;  1868-9,  c.  116,  s.  22. 

1850.  Party  in  execution  not  to  be  discharged  on  habeas  cor- 
pus. When  a  writ  of  habeas  corpus  cum  causa  shall  issue,  and  the 
sheriff  or  other  officer  to  whom  it  is  directed  shall  return  upon  the 
same  that  the  prisoner  is  condemned,  by  judgment  given  against 
him,  and  held  in  custody  by  virtue  of  an  execution  issued  against 
him,  the  prisoner  shall  not  be  let  to  bail,  but  shall  be  presently 
remanded,  where  he  shall  remain  until  discharged  in  due  course  of 
law. 

Code,  s.  937;  R.  C,  c.  31,  s.  Ill;  2  Hen.  V.,  c.  2. 

1851.  Determined  in  absence  of  party,  when.  Whenever,  from 

the  illness  or  infirmity  of  the  person  directed  to  be  produced  by  a 
writ  of  habeas  corpus,  such  person  can  not,  without  danger,  be 
brought  before  the  court  or  judge,  where  the  writ  is  made  returnable, 
the  party  in  whose  custody  he  is  may  state  the  fact  in  his  return  to 
the  writ;  and  if  the  court  or  jiidge  be  satisfied  of  the  truth  of  the 
allegation  and  the  return  be  otherwise  sufficient  the  court  or  judge 
shall  proceed  to  decide  on  such  return  and  to  dispose  of  the  matter 
in  the  same  manner  as  if  the  body  had  been  produced. 
Code,  s.  1648;   1868-9,  c.  116,  s.  23. 

1852.  Penalty  for  committing  for  same  cause.  No  person  who 

has  been  set  at  large  upon  any  writ  of  habeas  corpus  shall  be 
again  imprisoned  or  detained  for  the  same  cause  by  any  person  what- 
soever other  than  by  the  legal  order  or  process  of  the  court  wherein 
he  shall  be  bound  by  recognizance  to  appear  or  of  any  other  court 
having  jurisdiction  in  the  case,  imder  the  penalty  of  two  thousand 
five  hundred  dollars  to  the  party  aggrieved  thereby. 

Code,  s.  1651:   1868-9,  c.  116,  s.  26. 

Note.     See  also,  ss.  3581,  3582,  3583. 


Eer.  Vol.  1—32 


1853     HABEAS  COEPUS— 777.   Custody  of  Children.        Ch.  39 
VII.     Custody  of  Children. 

1853.  Awarded  by  judge;  modification  of  order.  "When  a  con- 
test shall  arise  on  a  writ  uf  habeas  corpus  between  any  husband 
and  wife,  who  are  living  in  a  state  of  separation,  without  being 
divorced,  in  respect  to  the  custody  of  their  children,  the  court  or 
judge,  on  the  return  of  such  writ,  may  award  the  charge  or  custody 
of  the  child  or  children  so  brought  before  it  either  to  the  husband 
or  to  the  wife,  for  such  time,  under  such  regiilations  and  restric- 
tions, and  with  such  provisions  and  directions  as  will,  in  the  opin- 
ion of  such  court  or  judge,  best  promote  the  interest  and  welfare  of 
the  children.  At  any  time  after  the  making  of  such  orders  the  court 
or  judge  may,  on  good  cause  shown,  annul,  vary  or  modify  the 
same. 

Code,  s.  1C61;  1858-9,  c.  53;  1808-9,  c.  116,  s.  36. 

Note.     For  consequence  of  divorce  on  right  to  custody  of  children,  see  9.  1570. 

For  effect  of  abandonment,  see  s.  180. 

1854.  Appeal  to  supreme  court,  in  all  cases  of  habeas  corpus, 
where  a  contest  shall  arise  in  respect  to  the  custody  of  minor  children, 
either  party  may  appeal  to  the  supreme  coitrt  from  the  final  judg- 
ment. 

Code,  s.   1662;    1858-9,  c.  53,   s.   2. 

VIII.     Ad  Testificandum. 

1 855.  Courts  of  record  may  issue.  Every  court  of  record  shall 
have  power,  upon  the  application  of  any  party  to  any  suit  or  proceed- 
ing, civil  or  criminal,  pending  in  such  court,  to  issue  a  writ  of  habeas 
corpus,  for  the  purpose  of  bringing  before  the  said  court  any  prisoner 
who  may  be  detained  in  any  jail  or  prison  within  the  state,  for  any 
cause,  except  such  prisoner  be  under  sentence  for  a  capital  felony,  to 
be  examined  as  a  witness  in  such  suit  or  proceeding,  in  behalf  of  the 
party  making  the  application. 

Code,  s.  1663;  1868-9,  c.  116,  s.  37. 

1856.  Issued  by  justices  and  clerks,  when.  Such  writ  of  habeas 

cor])us  may  be  issued  by  any  justice  of  the  ]icace  or  clerk  of  the  supe- 
rior court  upon  application  as  provided  in  the  preceding  section, 
to  bring  any  person  confined  in  the  jail  or  prison  of  the  same  county 
where  such  justice  or  clerk  may  reside,  to  be  examined  as  a  witness 
before  such  justice  or  clerk.  And  in  cases  where  the  testimony  of 
any  prisoner  is  needed  in  a  proceeding  before  a  justice  of  the  peace, 
or  a  clerk,  and  such  person  be  confined  in  a  county  in  which  such 
justice  or  clerk  does  not  reside,  application  for  habeas  corpus  to  tes- 
tify may  be  made  to  any  judge  of  the  supreme  or  superior  court. 
Code,  s.  1664;   1868-9,  e.  116,  s.  38. 


1S57       HABEAS  COEPUS— F7/7.  Ad  Testificandum.       Ch.   39 

1857.  Application,  what  to  contain.  The  application  for  the 
writ  shall  be  made  by  the  party  to  the  suit  or  proceeding  in  ■which 
the  writ  is  required,  or  by  his  agent  or  attorney.  It  must  be  verified 
by  the  applicant,  and  shall  state — 

1.  The  title  and  nature  of  the  suit  or  proceeding  in  regard  to 
\vliich  the  testimony  of  such  prisoner  is  desired. 

2.  That  the  testimony  of  such  prisoner  is  material  and  necessary 
in  such  party  on  the  trial  or  hearing  of  such  suit  or  proceeding,  as 
lie  is  advised  by  counsel  and  verily  believes. 

Code,  s.  1665;   1868-9,  c.   116,  s.  39. 

1858.  How  and  by  whom  served.  The  writ  of  habeas  corpus 
ill  testify  shall  be  served  by  the  same  jjerson,  and  in  like  manner  in 
iill  respects,  and  enforced  by  the  court  or  officer  issuing  the  same  as 
prescribed  in  this  chapter  for  the  service  and  enforcement  of  the 
writ  of  habeas  corpus  cum  causa. 

Code,  s.  1666;   1868-9,  c.  116,  s.  40. 

1859.  Applicant  to  pay  expenses  and  give  bond.  The  service 

I  if  the  writ  shall  not  be  complete,  however,  unless  the  applicant  for 
tlie  same  shall  tender  to  the  person  in  whose  custody  the  prisoner 
may  be,  if  such  person  be  a  sheriff,  coroner,  constable  or  marshal, 
Ihe  fees  and  expenses  allowed  by  law  for  bringing  such  prisoner,  nor 
unless  he  shall  also  give  bond,  with  sufficient  security,  to  such  sheriff, 
i-oroner,  constable  or  marshal,  as  the  case  may  be,  conditioned  that 
:such  applicant  will  pay  the  charges  of  carrying  back  such  prisoner. 
Code,  s.  1667;   1868-9,  c.  116,  s.  41. 

1860.  Duty  of  officer;  penalty.  It  shall  be  the  duty  of  the  officer 
I  LI  whom  the  writ  is  delivered  or  upon  whom  it  is  served,  whether 
such  writ  be  directed  to  him  or  not,  upon  payment  or  tender  of  the 
i/harges  allowed  by  law,  and  the  delivery  or  tender  of  the  bond 
herein  prescribed,  to  obey  and  return  such  writ  according  to  the 
exigency  thereof  upon  pain,  on  refusal  or  neglect,  to  forfeit  to  the 
]iarty  on  whose  application  the  same  shall  have  been  issued  the  sum 
of  five  hundred  dollars. 

Code,  s.   1CG8:    1868-9,  c.   116,  s.  42. 

1861.  Prisoner  remanded.  After  having  testified  the  prisoner 
shall  be  remanded  to  the  prison  from  which  be  was  taken. 

Code,  s.   1069;   1868-9,  c.  116,  s.  4.3. 


Note.     For  costs  of  habeas  corpus,  see  s.  1268. 


1862  HUNTING— 7.  Audubon  Society.  Cli.  40 


CHAPTER  40. 
HUNTING. 

Sections. 
I.     Audubon  society,  1862—1867 

II.     Game  wardens,  1868 — 1870 

III.  Bird  and  game  fund,  1871 

IV.  Nonresident  hunters,  1872 — 1874 
V.     Game  birds,  1875—1880 

VI.     Close  season,  1881—1889 

I.     Audubon  Society. 

1862.  Incorporated.  J.  Y.  Joyner,  T.  Gilbert.  Pearson,  R.  H. 
Lewis,  A.  H.  Eoyden,  H.  H.  Brimley,  P.  D.  Gold,  Jr.,  J.  F.  Jor- 
dan and  R.  N.  Wilson  are  hereby  created  a  body  politic  and  corpo- 
rate under  the  name  and  style  of  the  Audiibon  Society  of  North 
Carolina,  and  by  that  name  and  style  they  and  their  associates  and 
successors  shall  have  perj)etual  succession,  with  power  to  take  and 
hold,  either  by  gift,  grant,  purchase,  devise,  bequest  or  otherwise, 
any  real  or  personal  estate,  not  exceeding  fifty  thousand  dollars  in 
value,  for  the  general  use  and  advancement  of  the  purposes  of  the 
said  corporation,  or  for  any  special  purpose,  consistent  with  the 
charter ;  and  such  property  shall  be  exempt  from  taxation ;  to  make 
rules  and  by-laws;  to  have  and  to  use  a  common  seal,  and  to  change 
the  same  at  pleasure ;  and  to  do  and  perform  all  such  acts  and  things 
as  are  or  may  become  necessary  for  the  advancement  and  furtherance^ 
of  the  corporation. 

1903  (Pr.),  c.  337. 

1 863.  Officers  of.  The  officers  of  said  corporation  shall  be  a  presi- 
dent, vice-president,  secretary  and  treasurer,  and  such  other  officers 
as  may  be  fixed  by  the  by-laws. 

1903   (Pr.),  e.  337,  s.  2. 

1864.  Objects  for  which  created.  The  objects  for  which  the  cor- 
poration is  formed  are  to  promote  among  the  citizens  of  North  Caro- 
lina a  better  appreciation  of  the  value  of  song  and  insectivorous 
birds  to  man  and  the  state ;  to  encourage  parents  and  teachers  to 
give  instruction  to  children  on  the  subject;  to  stimulate  public  sen- 
timent against  tlic  destruction  of  wild  birds  and  tlieir  eggs;  to  secure 
the  enactment  and  enforcement  of  proper  and  necessary  laws  for  the 
protection  and  preservation  of  birds  and  game  of  the  state;  to  pro- 


1864  HUNTING—/.  Audubon  Society.  Ch.  40 

vide  for  the  naming  of  special  oificers  and  investing  them  with  nec- 
essary power,  who  shall  work  under  the  direction  and  control  of 
the  Audubon  Society  of  North  Carolina,  looking  to  the  rigid  enforce- 
ment of  the  game  and  bird  protective  laws  of  the  state ;  to  distribute 
literature  bearing  on  these  topics  among  the  members  of  the  society 
and  other  persons,  and  to  raise  and  provide  funds  for  defraying  the 
necessary  expenses  of  the  society  in  the  accomplishment  of  the  pur- 
poses herein  named. 
1903  (Pr.),  c.  337,  s.  3. 

1865.  Hunters'  license;  form  of,  prescribed  by.  The  Audubon 

Society  of  North  Carolina  shall  prescribe  the  form  of  license  for 
nonresident  hunters,  and  shall  furnish  to  the  clerks  of  the  superior 
courts  all  licenses  and  other  blanks  required  under  the  game  laws, 
and  shall  also  furnish  to  the  clerks  of  the  superior  courts  a  bound 
book,  for  the  purpose  of  keeping  a  record  of  all  hunters'  licenses  that 
may  be  issued. 

1903  (Pr.),  c.  337,  s.  10. 

1866.  Grants  certificates  to  take  birds  or  eggs.  The  Audubon 

Society  of  North  Carolina  may  issue  a  certificate  to  any  properly 
accredited  persons  of  the  age  of  twelve  years  and  upward,  permit- 
ting the  holder  thereof  to  collect  birds,  their  nests  or  eggs  for  strictly 
scientific  purposes;  said  certificate  shall  be  in  force  only  during 
the  calendar  year  in  which  issued,  and  shall  not  be  transferable. 
In  order  to  obtain  such  certificates  the  applicant  for  same  must  pre- 
sent to  the  persons  having  authority  to  gi-ant  such  certificates  written 
testimonials  from  two  well-known  scientific  men,  certifying  to  the 
good  character  and  fitness  of  said  applicant  to  be  intrusted  with 
such  privilege,  and  miist  pay  the  said  society  one  dollar  to  defray 
the  necessary  expenses  attending  the  granting  of  such  certificate. 
On  satisfactory  proof  that  the  holder  of  such  certificate  has  killed 
any  bird  or  taken  the  nests  or  eggs  of  any  birds  other  than  for  scien- 
tific purposes,  his  certificate  shall  become  void,  and  he  shall  be  fur- 
ther subject  for  each  oifense  to  the  penalty  provided  for  such  viola- 
tion of  the  law. 

1903,  (Pr.),  c.  337,  s.  5. 

1867.  Governor  appoints  treasurer  of  society  and  game  war- 
dens. The  governor,  upon  the  recommendation  of  the  Audubon  So- 
ciety of  North  Carolina,  shall,  from  time  to  time  appoint  bird  and 
game  wardens,  and  the  treasurer  of  the  society,  whose  terms  of  ofiice, 
unless  otherwise  provided  for,  shall  be  during  good  behavior  or  until 
their  successors  are  appointed.  The  governor  shall  issue  to  the 
treasurer  of  the  Audubon  Society,  and  to  each  person  appointed  as 
warden,  a  commission,   and  shall  transmit  such  commission  to  the 


1867  liUXTIXG— 7.  Audubon  Society.  Ch.  40 

clerk's  office  of  the  superior  court  for  the  county  from  which  tlic 
prospective  treasurer  or  bird  and  game  warden  is  appointed;  and 
no  tax  or  fee  shall  be  charged  or  collected  for  said  commission.  Any 
of  the  said  wardens  may  be  removed  by  the  governor  upoia  proof 
satisfactory '  to  him  that  they  are  not  fit  persons  for  said  position. 
The  compensation  of  said  wardens  shall  be  fixed  and  paid  by  the 
said  society. 

1903   (Pr.),  e.  337,  s.  12. 

II.     Gajie  Waedens. 

1868.  Oath  of;  bond;  badge;  act  as  constables.  Every  person 

appointed  as  warden  shall,  before  entering  upon  the  duties  of  his 
office,  take  and  subscribe  before  the  clerks  of  the  superior  coiirts  of 
the  county  in  which  he  resides  an  oath  to  perform  the  duties  of  said 
office,  together  with  the  other  oaths  prescribed  for  police  officers,  and 
execute  a  bond  in  the  sum  of  one  hundred  dollars  for  the  faithful 
discharge  of  his  duties,  and  the  said  oath  and  bond  shall  be  recorded 
bj'  the  clerk  in  his  office,  and  the  wardens  so  qualified  shall  possess 
and  exercise  all  the  powers  and  authority  held  and  exercised  by  the 
constable  at  common  law  and  under  statutes  of  this  state.  The  clerk 
shall  not  charge  more  than  fifty  cents  for  taking  and  recording  said 
oath.  The  bird  and  game  wardens,  when  acting  in  their  official 
capacity,  shall  wear  in  plain  view  a  metallic  shield  with  the  words 
"Bird  and  Game  Warden"  inscribed  thereon. 
1903   (Pr.),  c.  337,  s.  15. 

1869.  Powers.  Duly  appointed  and  qualified  game  and  bird 
wardens  shall,  upon  making  an  affidavit  before  a  justice  of  tlic 
peace  or  any  court  of  the  state  that  there  exists  reasonable  gi'ounds 
to  believe  that  any  game  or  birds  are  in  the  possession  of  any  common 
carrier  in  violation  of  the  law,  be  entitled  to  a  search  warrant  and 
to  open,  enter  and  examine  all  cars,  warehouses  and  receptacles  of 
common  carriers  in  the  state,  where  they  have  reason  to  believe  any 
game  or  birds  that  have  been  taken  or  are  held  in  violation  of  the 
law  are  to  be  found,  and  to  seize  such  game  or  birds.  It  shall  be  the 
duty  of  said  game  and  bird  wardens  to  prosecute  all  persons  or  cor- 
porations having  in  their  possession  any  bird  or  game  contrary  to 
the  bird  and  game  laws  of  this  state.  It  .shall  be  their  duty  to  see 
that  the  bird  and  game  laws  are  enforced  and  to  obtain  infoi'mation 
as  to  all  violation  of  said  bird  and  game  laws:  Provided,  that  in 
Currituck  county  it  shall  be  the  duty  of  said  wardens  to  also  see 
to  the  enforcement  of  all  laws  relating  to  fishing  in  said  coimty. 

1903   (Pr.),  c.  337,  s.  13. 


IS 70  HUNTING — //.  Game  Wardens.  Ch.  40 

1870.  Birds  seized  by,  sold.  Any  bird  or  animal  caught,  taken, 
killed,  shijiped,  or  received  for  shipment,  had  in  possession  or  under 
control  b}'  any  person  or  corporation  contrary  to  the  provisions  of 
law,  which  may  come  into  the  possession  of  the  bird  and  game  war- 
den, shall  be  sold  at  auction,  and  the  bird  and  game  warden  dispos- 
ing of  the  same  shall  issue  a  certificate  to  the  purchaser  certifying 
that  the  said  birds  or  animals  were  legally  obtained  and  possessed, 
and  any  one  so  acquiring  said  birds  or  animals  can  have  the  right 
to  use  them  as  if  the  same  had  been  sold,  killed  or  possessed  in  accord- 
ance with  the  law.  The  money  received  from  the  sale  of  such  con- 
fiscated birds  or  game  shall  be  forwarded  by  the  game  warden  to  the 
treasurer  of  the  state  and  be  placed  to  the  account  of  the  Bird  and 
Game  Fund. 

1903  (Pr.).  c.  337,  s.  14. 

III.  Bird  and  Game  Fund. 

1871.  How  paid  out.    The  funds  received  by  the  treasurer  of 

the  state  from  the  license  tax  on  nonresident  hunters  shall  constitute 
a  fund  known  as  the  Bird  and  Game  Fund,  which  fund  shall  be 
l)aid  out  by  the  treasiirer  of  the  state  on  the  order  of  the  treasurer 
of  the  Audubon  Society  of  North  Carolina,  who  shall  make  an 
annual  report  to  the  governor  of  the  receipts  and  expenditures  of 
the  society  for  the  year. 
1903  (Pr.),  c.  337,  s.  10. 

IV.  NONEESIDENT    HUNTEES. 

1872.  Procure  license,  effect  of.  Any  nonresident  who  desires  to 
hunt  birds  or  animals  in  any  part  of  the  state  shall  make  application 
to  the  clerk  of  the  superior  court  of  any  county,  who  shall  issue  such 
license  upon  the  payment  of  a  tax  of  ten  dollars  and  the  clerk's  fee. 
Tlie  license  shall  expire  on  the  termination  of  the  hunting  season  as 
fixed  for  the  several  counties.  The  license  shall  be  of  such  form  as  the 
Audubon  Society  of  North  Carolina  may  prescribe,  and  shall  enti- 
tle the  owner  to  hunt  anywhere  in  the  state  except  upon  private 
jn-operty,  which  he  shall  not  do  without  the  written  consent  of  the 
o\\Tier.  The  license  may  be  revoked  by  the  Audubon  Society  \ipon 
proof  that  the  holder  has  hunted  in  violation  of  the  law.  No  license 
shall  be  granted  to  any  person  whose  license  has  been  revoked,  for 
a  period  of  one  year  thereafter.  Such  license  shall  not  authorize 
the  holder  to  hunt  in  any  county  at  any  time  or  in  any  manner  other 
than  is  provided  by  law  for  hunting  in  such  county. 

1903   (Pr.),  e.  337,  ss.  10,  17. 


1873  HUNTING— /F.  Nonresident  Hunters.  Ch.  40 

1873.  May  take  quail  out  of  state.  Any  person  holding  a  hunter's 
license  to  hunt  in  North  Carolina  shall  be  permitted  to  take  out  of  the 
state  fifty  partridges  or  qnail,  fifty  beach  birds  or  snipe,  twelve  grouse, 
or  two  wild  turkeys  in  a  season. 

1903  (Pr.),  c.  337.  s.  11. 

1874.  License,  issued  by  Clerl<.  The  clerk  of  the  superior  court 
shall  issue  hunters'  licenses  as  provided  for  by  law,  and  shall  keep 
in  a  bound  book  a  record  of  each  license  issued,  and  shall  make  a 
report  on  the  first  day  of  December  of  each  year  and  at  the  close  of 
the  hunting  season  for  their  respective  counties  to  the  Audubon 
Society,  on  forms  provided  by  said  society,  and  shall  at  the  same 
time  transmit  all  funds  received  for  such  license  to  the  treasurer  of 
the  state. 

1903  (Pr.),  c.  337,  s.  10. 


Note.     For  form  of  license,  see  s.  1865. 

v.     Game  Birds. 

1 875.  What  are.  Under  the  laws  of  this  state,  the  following  only 
shall  be  considered  game  birds :  Loons,  and  grebes,  swans,  geese, 
brant ;  river,  fish  and  sea  ducks,  rails,  coots,  marsh-hens  and  galli- 
nules,  plovers,  shore  and  surf  birds,  snipe,  woodcock,  sandpipers,  yel- 
low legs,  chewink  or  tohee  and  curlews,  and  the  wild  turkey,  grouse, 
partridge,  pheasant,  quail,  dove,  robin  and  meadow  lark. 

1903   (Pr.),  c.  337,  s.  4. 

1876.  Birds  l<ept  as  pets,  or  for  breeding.  It  shall  be  lawful 

to  keep  any  wild  bird  in  a  cage  as  a  domestic  pet,  or  for  the  pur- 
poses of  breeding,  raising  and  domesticating. 
1903  (Pr.),  c.  337,  ss.  6,  7. 

1877.  License  tax  on  clubhouses,  Dare  county.  Every  club- 
house, shooting  lodge,  or  other  place  of  resort  for  sportsmen,  situated 
in  that  part  of  Dare  county  lying  south  of  a  line  passing  east  and 
west,  through  the  extreme  northern  end  of  Roanoke  island,  shall  pay 
a  license  tax  of  twenty-five  dollars  a  year,  which  said  license  shall 
entitle  the  members  and  guests  of  each  club,  lodge  or  resort  to  shoot 
wild  fowl  afloat  within  four  miles  of  said  clubhovise  or  lodge  with- 
out further  taxation. 

1899,  c.  133,  s.  2. 

1878.  Nonresidents  shooting  from  blinds  or  batteries  in  Dare 

county,  south  of  Roanoke  island.    Nonresidents  not  exceeding  two 
at  the  same  time  may  shoot  wild  fowl  in  the  waters  of  that  part  of 

568 


1878  HUNTING— F.  Game  Birds.  Ch.  40 

Dare  county  lying  south  of  a  line  passing  east  and  west  through  the 
I'Xtreme  northern  end  of  Eoanoke  island,  from  a  blind,  battery,  box, 
(ir  float,  where  such  blind,  battery,  box,  or  float  is  the  property  of  a 
resident  of  Dare  county  and  a  license  tax  of  five  dollars  per  annum 
has  been  paid  on  that  blind,  battery,  box  or  float. 
1899,  c.  133,  s.  3;   1901,  c.  157. 

1879.  License  tax  on  nonresidents  in  Dare  county.  Every  non- 
resident of  this  state  shall,  before  shooting  any  wild  fowl  in  the 
waters  of  that  part  of  Dare  county  lying  north  of  a  line  passing  east 
and  west  through  the  northern  end  of  Eoanoke  island,  from  any 
Mind,  battery,  box,  float  or  raft  pay  a  license  tax  of  twenty-five 
dollars  a  year. 

1897,  c.  415;   1899,  c.   133. 

1880.  License  taxes  for  hunting  wild  fowl  in  Dare  county.  All 

license  taxes  imposed  for  hunting  wild  fowl  in  Dare  county,  or  for 
Iddges,  clubhouses  or  resorts  for  sportsmen,  or  upon  boxes,  batteries, 
'>v  floats  shall  be  paid  to  the  clerk  of  the  superior  court,  who  shall 
issue  the  license.  All  such  license  taxes  shall  be  by  the  clerk  of  the 
superior  court  paid  over  to  the  treasurer  of  the  county  for  the  benefit 
<if  the  school  fund. 

1897,  c.  415;    1899,  c.   133. 

VI.     Close  Se.^son. 

1881.  Deer.  The  close  season  of  each  year  during  which  deer  shall 
not  be  hunted  with  gun,  chased  with  dogs,  killed,  trapped  or  de- 
stroyed shall,  as  to  the  several  counties  or  parts  of  counties,  be  as 
follows  : 

Pender  and  all  counties  lying  wholly  west  of  the  Wilmington  and 
Weldon  Railroad,  except  as  hereinafter  specifically  provided,  between 
the  first  day  of  February  and  the  first  day  of  October. 

Bertie,  between  the  first  day  of  February  and  the  first  day  of 

AuglTSt. 

Caiwer's  and  White  Creek  to-wnships,  Bladen  county,  from  the  thir- 
tieth day  of  ISTovember  to  the  first  day  of  ISTovember. 

Brunswick,  Halifax,  Xew  Hanover  and  Warren,  between  the  first 
'lay  of  January. and  the  first  day  of  September. 

Burke  and  Richmond,  between  the  first  day  of  January  and  the 
first  day  of  October. 

Caswell,  until  the  first  day  of  October,  one  thousand  nine  hundred 
and  seven,  and  thereafter  between  the  first  day  of  February  and  the 
first  day  of  October. 

Carteret,  between  the  first  day  of  February  and  the  first  day  of 
September. 


1881  HUNTIXG— T7.  Close  Season.  Ch.  40 

Columbus,  within  one-half  mile  of  Lake  Waccamaw,  between  the 
first  day  of  January  and  the  first  day  of  October. 

Currituck,  on  the  north  side  of  Poplar  Branch  township,  between 
the  first  day  of  March  and  the  twentieth  daj'  of  September. 

Dare,  between  the  first  day  of  March  and  the  fifteenth  day  of 
October. 

Craven  and  Jones,  between  the  first  day  of  February  and  the  first 
day  of  September. 

McDowell,  until  the  first  da^'  of  October,  one  thousand  nine  hun- 
dred and  seven,  and  thereafter  between  the  first  day  of  February  and 
the  first  day  of  October. 

Mitchell,  between  the  first  day  of  January  and  the  first  day  of 
October,  except  Grassy  Creek  and  Snow  Creek  townships,  there  be- 
tween the  fifteenth  day  of  November  and  the  fifteenth  day  of  October 
next  ensuing. 

Montgomery,  until  the  first  day  of  October,  one  thousand  nine  hun- 
dred and  eleven,  and  thereafter  between  the  first  day  of  February  and 
the  first  day  of  October. 

Xew  Hanover,  between  the  first  day  of  January  and  the  first  day 
of  September. 

Northampton,  between  the  fifteenth  day  of  February  and  the  first 
day  of  ISToveraber. 

Onslow,  in  waters  of  New  river  or  within  one  hundred  yards 
thei'eof,  all  the  year. 

Person,  Granville  and  Vance,  between  the  fifteenth  day  of  January 
and  the  first  day  of  September,  except  that  any  person  may  kill  them 
on  his  own  premises  at  any  season  of  the  year  when  found  destroying 
his  crops. 

Pamlico,  between  the  first  day  of  February  and  the  fifteenth  day 
of  July. 

Randolph,  until  the  first  day  of  October,  one  thousand  nine  hundred 
and  eight,  and  thereafter  between  the  first  day  of  February  and  the 
first  day  of  October. 

Robeson,  between  the  first  day  of  January  and  the  first  day  of 
November. 

Tyrrell,  between  the  first  day  of  February  and  the  fifteenth  day  of 
October. 

AVilkes,  until  the  first  day  of  October,  one  thousand  nine  hundred 
and  eight,  and  thereafter  between  the  first  day  of  February  and  the 
first  day  of  October. 

Yancey,  from  the  thirtieth  day  of  November  to  the  first  day  of 
October. 

CckIc,  s.  2832;  1885,  ec.  21,  48;  1887,  c.  7.5;  1889,  cc.  5,  149,  210,  ,145,  489,  531, 
538;  1891,  e.  234;  1893,  cc.  107,  232,  3.52,  3,58,  470,  442.  s.  2;  1895,  cc.  62;  1897, 
cc.  59,  81,  82,  283,  404;  1899,  121;  1901,  cc.  05,  125,  153,  372,  573,  001;  1903,  cc. 
128,  196,  30.3,  694;  1905,  cc.  4,  39,  47,  99,  101,  137,  270,  387,  405,  409. 


1S82  HUNTING— F/.   Close  Season.  Ch.  40 

1882.  Squirrel.  The  close  season,  or  time  in  each  year  during 
\\hicli  no  squirrel  shall  be  hunted,  killed,  or  in  any  way  captured, 
shall  be,  as  to  the  counties  hereinafter  stated,  as  follows: 

Beaufort,  Chowan,  Cleveland,  Gates,  Mecklenburg,  Perquimans 
and  Pitt,  from  the  first  day  of  March  to  the  first  day  of  November. 

Bertie  and  Martin,  from  the 'first  day  of  March  to  the  fifteenth  day 
of  October. 

Craven  and  Jones,  from  the  first  day  of  March  to  the  first  day  of 
October. 

Franklin,  from  the  first  day  of  March  to  the  first  day  of  September. 

Greene,  from  the  first  day  of  February  to  the  first  day  of  Sep- 
tember. 

Pasquotank,  Pamlico  and  Tyrrell,  from  the  first  day  of  March  to 
the  first  day  of  October. 

Pender  and  Montgomery,  from  the  first  day  of  April  to  the  first 
day  of  September. 

Wake  and  Dare,  from  the  first  day  of  March  to  the  first  day  of 
November. 

1895,  c.  443;  1897,  c.  454;  1889,  c.  343;  1901,  c.  676;  1903,  cc.  103.  118.  196,  440, 
542;  1905,  cc.  4,  101,  130,  137,  143,  99,  77,  158,  284,  393. 

1883.  Opossum.  The  close  season,  or  time  in  each  year  during 
which  no  opossum  shall  be  shot,  killed,  hiTnted  or  in  any  way  captured 
shall  be,  as  to  the  counties  of  Alamance,  Caswell,  Chatham,  Durham, 
Franklin,  Graham,  Guilford,  Halifax,  Mecklenburg,  Moore,  Orange, 
Pamlico,  Wake  and  Warren,  from  the  first  day  of  February  to  the 
first  day  of  October. 

Greene,  between  the  first  day  of  Febniary  and  the  first  day  of 
September. 

Lincoln  and  Harnett,  between  the  first  day  of  January  and  the  first 
day  of  October. 

1891,  c.  .542;  1893,  ee.  21,  59,  160;  1893.  c.  371;  1895.  c.  84;  1901,  c.  67G;  1891, 
c.  545;  1903,  c.  542;  1905,  cc.  315,  393. 

1884.  Quail  or  partridges.  The  close  season,  or  time  in  each 
year  during  which  quail  and  partridges  shall  not  he  .shot,  killed, 
wounded,  or  in  any  manner  himted,  taken  or  captured,  .shall  be  from 
the  first  day  of  March  to  the  first  day  of  November,  except  as  to  those 
counties  for  which  a  different  time  is  hereinafter  stated,  as  follows: 

Alexander,  from  the  fifteenth  day  of  January  to  the  first  day  of 
December. 

Buncombe,  from  the  first  day  of  February  to  the  first  day  of  De- 
cember ;  and  in  Leicester  to^vnship,  until  the  second  day  of  March, 
one  thousand  nine  hundred  and  eight,  and  thereafter  from  the  first 
day  of  February  to  the  first  da.y  of  December. 


1884  HUNTING— TT.  Close  Seaso?i.  Ch.  40 

Cherokee,  Davidson,  Duplin,  Edgecombe,  Montgomery,  Pasquo- 
tank, Perquimans,  Eandolph  and  Wilson,  from  the  first  day  of  March 
to  the  fifteenth  day  of  November. 

Cabarrus,  Clay,  Davie  and  Rowan,  from  the  first  day  of  March  to 
the  first  day  of  December. 

Dare,  Tyn-ell  and  Vance,  from  the  first  day  of  !March  to  the 
fifteenth  day  of  October. 

Gaston  and  Mecklenburg,  from  the  tenth  day  of  January  to  the 
first  day  of  December;  and  in  Cherryville,  Crowder's  Mountain  and 
Gastonia  townships,  Gaston  county,  for  five  years  from  the  fourth  day 
of  March,  one  thousand  nine  hundred  and  five. 

Henderson,  from  the  first  day  of  April  to  the  fifteenth  day  of 
November. 

Hyde,  from  the  twentieth  day  of  March  to  the  fifteenth  day  of 
October. 

Iredell,  Forsyth  and  Catawba,  from  the  fifteenth  day  of  February 
to  the  fifteenth  day  of  November. 

Cleveland,  Lincoln  and  Surry,  from  the  first  day  of  February  to 
the  first  day  of  December. 

Nash,  from  the  first  day  of  February  to  the  first  day  of  November. 

Northampton,  from  the  fifteenth  day  of  February  to  the  first  day 
of  November. 

Burke,  from  the  first  day  of  February  to  the  first  day  of  November. 

Union,  from  the  fifteenth  day  of  January  to  tlie  fifteenth  day  of 
December. 

Swain,  from  the  first  day  of  January  to  the  twentieth  day  of  No- 
vember. 

Cove  Creek  township,  Watauga  county,  all  the  year. 

Franklinville  township,  Randolph  county,  from  the  first  day  of 
January  to  the  thirtieth  day  of  November,  both  inclusive. 

Lanesboro  township,  Anson  county,  from  the  twentieth  day  of 
January  to  the  twentieth  day  of  November. 

Columbus,  Graham,  Jones  and  Onslow  have  no  close  season. 

Code,  s.  2834;  1885,  cc.  204,  395;  1891,  cc.  79,  294:  1893,  cc.  19.  118,  3.39,  361; 
1895,  ce.  109,  209;  1897,  cc.  74,  146,  266,  282,  283,  293,  423;  1899,  c.  157;  1901, 
cc.  .344,  355,  359,  415,  437,  679;  1903,  cc.  147,  255,  281,  .304;  1905,  ce.  4,  77,  24, 
50,  137,  99,  252,  272,  305,  322,  343,  313,  309,  200,  377,  379,  385,  409,  413,  185. 

1 885.  Wild  turkey.  The  close  season,  or  time  in  each  year  during 
M'hich  no  wild  turkey  shall  be  shot,  killed,  Avounded,  or  in  any  man- 
ner hunted,  taken  or  captured,  shall  be  from  the  first  day  of  March 
to  the  first  day  of  November,  except  as  to  those  counties  as  to  which 
a  different  time  is  hereinafter  stated,  as  follows : 

Cabarrus,  from  the  first  day  of  March  to  the  first  day  of  December. 


1885  HUNTING— F7.  Close  Season.  Ch.  40 

Cherokee,  Davidson  and  Wilson,  from  the  first  day  of  March  to 
the  fifteenth  day  of  November. 

Clay,  Randolph  and  Rowan,  from  the  first  day  of  February  to  the 
first  day  of  December. 

Davie,  until  the  first  day  of  March,  one  thousand  nine  hundred 
and  eight,  and  thereafter  from  the  first  day  of  February  to  the  first 
day  of  December. 

Henderson,  from  the  first  day  of  April  to  the  fifteenth  day  of 
November. 

Northampton,  from  the  fifteenth  day  of  February  to  the  first  day 
of  November. 

Pamlico,  from  the  first  day  of  March  to  the  first  day  of  October. 

Pender,  from  the  first  day  of  February  to  the  first  day  of  October. 

Richmond,  from  the  first  day  of  January  to  the  first  day  of  October. 
■  Union,  from  the  fifteenth  day  of  March  to  the  fifteenth  day  of 
October. 

Buncombe,  from  the  first  day  of  February  to  the  first  day  of  De- 
cember. 

Lanesboro  township,  Anson  county,  from  the  twentieth  day  of 
January  to  the  twentieth  day  of  November. 

Carteret,  Columbus,  Dare,  Graham,  Jones,  Onslow,  Stanly,  Swain 
and  Tyrrell  have  no  close  season  for  wild  turkeys. 

Code  s.  2834;  1885,  ec.  204,  395,  396,  398,  399;  1887,  c.  82;  1891,  ec.  79.  294; 
1893.  cc.  118,  373;  1895.  ec.  109,  442;  1897,  cc.  74,  85,  146,  266,  284,  558;  1899, 
c.  152;  1901,  ec.  133,  344,  355,  359,  361,  383,  415,  437,  469,  551,  676;  1903,  cc.  94, 
147,  255,  280,  281,  286,  304,  345,  363,  463,  659;  1905,  cc.  4,  77,  101,  137,  193,  402. 

1886.  Dove,  robin  and  lark.  The  close  season,  or  time  in  each 
year  during  which  no  dove,  robin  or  lark  shall  be  shot,  killed,  wounded 
or  in  any  manner  hunted,  taken  or  captured,  shall  be  from  the  first 
day  of  March  to  the  first  day  of  November,  except  as  to  those  coun- 
ties as  to  which  a  different  time  is  hereinafter  stated,  as  follows : 

Cabarrus  and  Cherokee,  from  tbe  first  day  of  March  to  the  fifteenth 
day  of  November. 

Davidson  and  Richmond,  from  the  first  day  of  April  to  the  fifteenth 
day  of  October. 

Davie,  from  the  first  day  of  March  to  the  first  day  of  December. 

Edgecombe,  from  the  first  day  of  March  to  the  fifteenth  day  of 
November. 

Halifax  and  Warren,  as  to  doves,  from  the  first  day  of  February  to 
the  first  day  of  August. 

Henderson,  from  the  first  day  of  April  to  the  fifteenth  day  of 
November. 

Mecklenburg,  from  the  first  day  of  February  to  the  fifteenth  day 
of  November. 


HUNTING— T'7.   Close  Season.  Cli.  40 

Northampton,  from  the  fifteenth  day  of  February  to  the  first  day 
of  November. 

Rowan,  from  the  first  day  of  March  to  the  first  day  of  December. 

Union,  from  the  fifteenth  day  of  January  to  the  fifteenth  day  of 
December. 

Vance,  from  the  fifteenth  day  of  March  to  the  fifteenth  day  of 
October. 

Buncombe,  as  to  doves,  from  the  first  day  of  Febniary  to  the  first 
day  of  December. 

Lanesboro  township,  Anson  county,  as  to  doves,  from  the  twentieth 
day  of  January  to  the  twentieth  day  of  November. 

Carteret,  Columbus,  Duplin,  Graham,  Onslow,  IMoore,  Swain  and 
Wilson  have  no  close  season. 

Code,  s.  2834;  1885,  cc.  201.  204,  395;  1889,  c.  32;  1891,  cc.  79,  232,  294;  1893, 
cc.  118,  2.'!9;  1895,  c.  109;  1897.  ec.  146.  284;  1901,  cc.  133,  344.  355,  359,  415,  437; 
1903,  ce.  147,  255,  280,  304;  1905,  cc.  4,  77.  313,  343. 

1887.  Pheasant.  The  dose  season,  or  time  in  each  year  during 
which  no  pheasant  shall  be  shot,  killed,  wounded  or  in  any  manner 
captured  or  taken,  shall  be  as  follows : 

Buncombe  county,  from  the  first  day  of  February  to  the  fifteenth 
day  of  December. 

Burke  county,  from  the  first  day  of  February  to  the  first  day  of 
November. 

Cherokee  county,  from  the  first  day  of  March  to  the  fifteenth  day 
of  November. 

Clay  county,  from  the  first  day  of  March  to  the  first  day  of  Decem- 
ber. 

Henderson  county,  from  the  first  day  of  April  to  the  first  day  of 
November. 

Macon  count}',  from  the  first  day  of  March  to  the  first  day  of  No- 
vember. 

Randolph  county,  from  the  fifteenth  day  of  December  to  the  four- 
teenth day  of  November  next,  for  a  period  of  five  years  from  Feb- 
ruary, one  thousand  nine  hundred  and  five. 

Swain  covmty,  from  the  first  day  of  January  to  the  twentieth  day 
of  November. 

Rowan  county,  from  the  first  day  of  February  to  the  first  day  of 
December. 

1901,  c.  437;   1903.  cc.  281,  304,  353,  463;  1905.  cc.  173.  271.  313,  711. 

1888.  Woodcock.  Tlie  close  season,  or  time  in  each  year  during 
which  no  woodcock  shall  be  hunted,  killed  or  in  any  way  taken  or 
captured,  shall  be  as  follows: 

Craven  and  Jones,  from  the  first  day  of  February  to  the  first  day 
of  November. 

574 


1888  HUISTTIXG— T7.  Close  Season.  Ch.  40 

Edgecombe,  from  the  first  day  of  March  to  the  first  day  of  Xovera- 
ber. 

Brunswick  and  !N"ew  Hanover,  from  the  first  day  of  January  to 
the  first  day  of  September. 

Cherokee,  from  the  first  day  of  March  to  the  first  day  of  November. 

Henderson,  all  the  year. 

Randolph,  from  the  first  day  of  March  to  the  first  day  of  November. 

Rowan,  from  the  first  day  of  February  to  the  first  day  of  December. 

1901,  c.  437;  190.3,  ce.  304,  353;  1897,  c.  146;  1905,  cc.  77,  183,  313,  409. 

1889.  Snipe  and  other  game  or  shore  birds.  The  close  season, 

or  time  in  each  year  during  which  no  snipe,  marsh  hen,  curlew  and 
other  shore  birds  and  game  birds  shall  be  hunted,  killed  or  in  any 
way  taken,  shall  be  as  follows: 

Lanesboro  township,  Anson  county,  as  to  snipe  and  other  game 
birds  from  the  twentieth  day  of  January  to  the  twentieth  day  of  No- 
vember. 

Edgecombe,  any  game  bird,  not  otherwise  regulated,  from  the  first 
day  of  March  to  the  fifteenth  day  of  November. 

Grau\-ille,  any  game  bird  from  the  first  day  of  March  to  the  first 
day  of  November. 

Craven  and  Jones,  wild  duck  and  other  water  fowl,  from  the  first 
day  of  March  to  the  first  day  of  November. 

Brunswick  and  New  Hanover,  snipe  and  wild  ducks  of  all  kinds 
from  the  first  day  of  March  to  the  first  day  of  September. 

Halifax  and  Warren  as  to  snipe,  between  May  the  first  and  the 
first  day  of  February. 

Bimcombe  as  to  grouse,  from  the  first  day  of  February  to  the  first 
day  of  December. 

Henderson,  all  the  year,  except  snipe,  as  to  which  there  is  no  close 
season. 

Cherokee,  from  the  first  day  of  March  to  the  fifteenth  day  of  No- 
vember. 

1887,  e.  82;  1901,  e.  437;  1903,  cc.  174,  353;  1905,  ce.  183,  313,  409,  413,  77. 


1890       IDIOTS,  INEBRIATES,  ETC.— 7.   Guardian.       Cli.  41 


CHAPTER  41. 
IDIOTS,  INEBRIATES  AND  LUNATICS. 

Sections. 
I.     Guardian  of,  1800—189.5 

II.     Sales  of  estates,  189G— 1898 

III.     Surplus  income,  1899 — 190S 

I.       GtTAEDIAN    OF. 

1890.  Inquisition;  guardian  appointed.  Any  person,  in  behalf 

of  one  who  is  deemed  an  idiot,  inebriate,  or  lunatic,  or  incompetent 
from  want  of  understanding  to  manage  his  own  affairs  by  I'eason 
of  the  excessive  u.se  of  intoxicating  drinks,  or  other  cause,  may  file 
a  petition  before  the  clerk  of  the  superior  court  of  the  county  where 
such  supposed  idiot,  inebriate  or  lunatic  resides,  setting  forth  the 
facts,  duly  verified  by  the  oath  of  the  petitioner;  whereupon  such 
clerk  shall  issue  an  order,  upon  notice  to  the  supposed  idiot,  inebri- 
ate or  lunatic,  to  the  sheriff  of  the  county,  commanding  him  to  sum- 
mon a  jury  of  twelve  men  to  inquire  into  the  state  of  such  supposed 
idiot,  inebriate  or  lunatic.  The  jury  shall  make  return  of  their 
proceedings  under  their  hands  to  the  clerk,  who  shall  file  and  record 
the  same ;  and  he  shall  proceed  to  appoint  a  gtiardian  of  any  person 
so  found  to  be  an  idiot,  inebriate,  lunatic  or  incompetent  person  by 
inquisition  of  a  jury,  as  in.  cases  of  orphans. 

Code,  s.  1670;  C.  C.  P.,  s.  473. 

Note.     See  Guardian,  s.  1768. 

1891.  Guardian  appointed  on  certificate  from  hospital  for  in- 
sane. If  any  person  be  confined  in  any  hospital  for  insane  persons, 
the  certificate  of  the  superintendent  of  such  hospital  declaring  such 
person  to  be  of  insane  mind  and  memory,  which  certificate  shall  be 
sworn  to  and  subscribed  before  the  clerk  of  the  stiperior  court  of 
the  county  in  which  such  hospital  is  situated,  and  certified  under 
the  seal  of  court,  shall  be  sufficient  evidence  to  authorize  the  clerk 
to  appoint  a  gtiardian  for  such  idiot,  lunatic  or  insane  person. 

Code,  s.  1673;   1860-1,  c.  22. 

1892.  Inebriates  defined.  Any  person  who  habitually  whether 
continuously  or  periodically,  indulges  in  the  use  of  intoxicating 
liquors,  narcotics  or  drugs  to  such  an  extent  as  to  stupefy  his  mind 
and  to  render  him  incompetent  to  transact  ordinary  business  with 


1S92       IDIOTS,  INEBRIATES,  ETC.—/.   Guardian.       Ch.  41 

safety  to  his  estate,  or  who  shall  render  himself,  by  reason  of  the 
use  of  intoxicating  liquors,  narcotics  or  drugs,  dangerous  to  person 
(ir  property,  or  who  shall,  by  the  frequent  use  of  liquor,  narcotics  or 
drugs,  render  himself  cruel  and  intolerable  to  his  family,  or  shall 
fail  from  such  cause  to  provide  his  family  with  reasonable  necessi- 
ties of  life,  shall  be  deemed  an  inebriate:  Provided,  the  habit  of  so 
indulging  in  such  use  shall  have  been  at  the  time  of  inquisition  of 
:it  least  one  year's  standing. 

Code,  s.  1671;   1891,  c.  15,  s.  7;   1903,  c.  543;   1879,  c.  329. 

Note.     For  rules  for  admission  into  hospitals,  see  Hospitals  for  Insane. 

1893.  Reformation   and   restoration   to   sanity  or  sobriety. 

Whenever  an  insane  person  or  inebriate  shall  beconio  of  sound  mind 
and  memory,  or  shall  become  competent  to  manage  his  property,  he 
shall  be  authorized  to  manage,  sell  and  control  all  his  property  in 
as  full  and  ample  a  manner  as  he  could  do  before  he  became  insane 
or  inebriate,  and  a  petition  in  behalf  of  such  person  may  be  filed 
before  the  clerk  o:^  the  superior  court  of  the  county  of  his  residence, 
setting  forth  the  facts  duly  verified  by  the  oath  of  the  petitioner, 
whereupon  the  clerk  shall  issue  an  order,  upon  notice  to  the  person 
alleged  to  be  no  longer  insane  or  inebriate,  to  the  sherifF  of  the 
county,  commanding  him  to  summon  a  jury  of  six  freeholders  to 
inquire  into  the  sanity  of  the  said  alleged  sane  person,  formerly  a 
lunatic,  or  the  sobriety  of  such  alleged  restored  person,  formerly  an 
inebriate.  The  jury  shall  make  return  of  their  proceedings  under 
their  hands  to  the  clerk,  who  shall  file  and  record  the  same,  and  if 
the  jury  find  that  the  person  whose  mental  or  physical  condition 
inquired  of  is  sane  and  of  soimd  mind  and  memory,  or  is  no  longer 
an  inebriate,  as  the  case  may  be,  the  said  person  shall  be  authorized 
to  manage  his  aifairs,  make  contracts  and  sell  his  property,  both 
real  and  personal,  as  if  he  had  never  been  insane  or  inebriate. 
Code,  s.  1672;   1901,  c.  191;  1903,  c.  80;   1879,  c.  324,  s.  4. 

1894.  Estates  without  guardian  managed  by  clerk.  Whenever 

any   person   is   declared   to   be   of  nonsane   mind    or   inebriate,    and 
for  whom  no  suitable  person  will  act  as  guardian,  the  clerk  shall 
secure  the  estate  of  such  person  according  to  the  law  relating  to 
orphans  whose  g-uardians  have  been   removed. 
Code,  s.  1676;  E.  C,  c.  57,  s.  6;  1846,  o.  43,  s.  1. 

1895.  Allowance  to  abandoned  feme  covert  lunatic.  Whenever 

any  feme  covert  lunatic  shall  be  abandoned  by  her  husband,  she 
may,  by  her  guardian,  or  next  friend,  in  case  there  be  no  guardian, 
apply  to  the  clerk  of  the  superior  court  for  support  and  maintenance, 

Rev.  Vol.  1—33  .577 


1895       IDIOTS,  INEBKIATES,  ETC.— 7.  Guardian.       Ch.  41 

which  the  clerk  may  decree  as  in  cases  of  alimony,  out  of  any  prop- 
erty or  estate  of  her  husband. 
Code,  s.  1686;   1858-9,  c.  52,  s.  1. 


Note.     See  Divorce  and  Alimony. 

Deemed  to  have  pleaded  statutes  of  limitation,  see  s.  361. 


II.      Sales  of  Estates. 


1896.  Clerk  may  order  sale  or  renting.  Whenever  it  shall  ap- 
pear to  any  clerk  of  the  superior  court  by  report  of  the  guardian  of 
any  idiot,  inebriate  or  lunatic,  that  his  personal  estate  has  been 
exhausted,  or  is  insufficient  for  his  support,  and  that  he  is  likely 
to  become  chargeable  on  the  county,  the  clerk  may  make  an  order 
for  the  sale  or  renting  of  his  personal  or  real  estate,  or  any  part 
thereof,  in  such  manner  and  upon  such  terms  as  he  may  deem 
advisable.  Such  order  shall  specify  particularly  the  property  thus 
to  be  disposed  of,  with  the  terms  of  renting  or  sale,  and  shall  be 
entered  at  length  on  the  records  of  the  court ;  and  all  sales  and  rent- 
ings  made  under  this  section  shall  be  valid  to  convey  the  interest 
and  estate  directed  to  be  sold,  and  the  title  thereof  shall  be  conveyed 
by  such  person  as  the  clerk  may  appoint  on  confirming  the  sale ;  or 
the  clerk  may  direct  the  guardian  to  file  his  petition  for  such  pur- 
pose. 

Code,  s.  1674;  R.  C,  c.  57,  s.  4;   1801,  c.  589. 

1897.  How  and  for  what  purpose  sold;  parties;  disposition  of 

proceeds.  Whenever  it  shall  appear  to  the  clerk,  upon  the  petition 
of  the  giiardian  of  any  idiot,  inebriate  or  lunatic,  that  a  sale  of  any 
part  of  his  real  or  personal  estate  is  necessary  for  his  maintenance, 
or  for  the  discharge  of  debts  imavoidably  incurred  for  his  mainte- 
nance, or  whenever  the  clerk  shall  be  satisfied  that  the  interest 
of  the  idiot,  inebriate  or  lunatic  would  be  materially  and  essen- 
tially promoted  by  the  sale  of  any  part  of  such  estate ;  or  whenever 
any  part  of  his  real  estate  is  required  for  public  purposes,  the  clerk 
may  order  a  sale  thereof  to  be  made  by  such  person,  in  such  way 
and  on  such  terms  as  he  shall  adjudge:  Provided,  that  the  clerk,  if 
it  be  deemed  proper,  may  direct  to  be  made  parties  to  such  petition 
the  next  of  kin  or  presumptive  heirs  of  such  nonsane  person  or  ine- 
briate. And  if  on  the  hearing  the  clerk  shall  order  such  sale,  tlic 
same  shall  be  made  and  the  proceeds  applied  and  .secured,  and  shall 
descend  and  be  distributed  in  like  manner  as  is  provided  for  the  sale 
of  infants'  estates  decreed  in  like  cases  to  be  sold  on  application  of 
their  guardians,  as  directed  in  tlie  cliapter  entitled  (inardi.in. 
Code,  s.  1675;  T!.  C,  c.  57,  s.  5. 


1898         IDIOTS,   INEBEIATES,   ETC.— 77.  Sales.         Ch.  41 

1898.  Land  of  wife  of  lunatic,  how  sold.  Waeve  the  wife  of  a 

lunatic  owns  real  estate  in  her  own  right  the  sale  of  which  will  jDro- 
mote  her  interest,  a  sale  of  the  same  may  be  made  upon  the  order 
of  the  clerk  of  the  superior  court  of  the  county  where  the  land 
lies,  upon  the  petition  by  the  wife  of  said  lunatic  and  the  guard- 
ian of  the  lunatic  husband,  and  the  proceeds  of  said  sale  shall  be 
paid  to  the  wife  of  said  lunatic. 
Code,  s.  1687;   1881,  e.  361. 

III.     Surplus  Income. 

1899.  Of  mother  used  for  children's  support.  When  a  father 

dies  leaving  his  surviving  niin(_iv  chiklri'u  and  a  widow  who  is  the 
mother  of  such  children,  but  leaving  no  sufficient  estate  for  the  sup- 
port and  maintenance  and  education  of  such  minor  children,  and  the 
mother  shall  be  or  become  insane  and  be  so  declared  according  to 
law,  and  such  insanity  shall  continue  for  twelve  months  thereafter, 
and  she  shall  have  an  estate  which  shall  be  placed  in  the  hands  of  a 
guardian  or  other  person,  as  provided  by  law,  the  estate  of  such  insane 
mother  shall  in  such  cases  as  are  provided  for  in  the  succeeding  sec- 
tion be  made  liable  for  the  support,  maintenance  and  education  of 
the  class  of  persons  mentioned  in  said  section  to  the  same  extent,  in 
the  same  manner  and  under  the  same  rules  and  regiilations  as  applies 
to  estates  of  fathers  thereunder. 
1905,  e.  546. 

1900.  When  advanced  to  next  of  kin.  Whenever  any  nonsane 
person,  of  full  age,  and  not  having  made  a  valid  will,  shall  have 
children  or  grandchildren  (such  grandchildren  being  the  issue  of 
a  deceased  child),  and  shall  be  possessed  of  an  estate,  real  or  per- 
sonal, whose  annual  income  shall  be  more  than  sufficient  abundantly 
and  amply  to  support  himself,  and  to  support,  maintain  and  edu- 
cate the  members  of  his  family,  with  all  the  necessaries  and  suita- 
ble comforts  of  life,  it  may  be  lawful  for  the  clerk  of  the  superior 
court  for  the  county  in  which  such  person  shall  have  his  residence 
to  order  from  time  to  time,  and  so  often  as  may  be  jiidged  expedient, 
that  fit  and  proper  advancements  be  made,  out  of  the  surplus  of  such 
income,  to  any  such  child,  or  grandchild,  not  being  a  member  of  his 
family  and  entitled  to  be  supported,  educated  and  maintained  out 
of  the  estate  of  such  person. 

Code,  s.  1677;  R.  C,  c.  57,  s.  9. 

1901.  For  what  purpose  and  to  whom  advanced.  Such  ad- 
vancements shall  be  ordered  only  for  the  better  i)roniotion  in  life 
of  such  as  are  of  age,  or  married,  and  for  the  maintenance,  support 
and  education  of  such  as  are  under  the  age  of  twenty-one  years  and 


1901  IDIOTS,  ETC.— 7/7.  Surplus  Income.  Ch.  41 

unmarried;  and  in  all  cases  the  sums  ordered  shall  be  paid  to  such 
persons  as,  in  the  opinion  of  the  clerk,  will  most  effectually  execute 
the  purpose  of  the  advancement;  and  in  case  the  child,  or  grand- 
child, be  a  feme  covert,  the  sum  advanced  shall  be  paid  or  secured 
to  her  for  her  sole  and  separate  use. 
Code,  s.  1078;  R.  C,  c.  57,  s.  10.  * 

1902.  Distributees,  parties.  In  every  application  for  such  ad- 
vancements, the  guardian  of  the  nonsane  person,  and  all  such  other 
persons,  shall  be  parties,  as  wo\ild  at  that  time  be  entitled  to  a  dis- 
tributive share  of  his  estate,  if  he  were  then  dead. 

Code,  s.  1679;  R.  C,  c.  57,  s.  11. 

1903.  Advancements,  equal;  accounted  for,  when.  The  clerk, 

in  ordering  such  advancements,  shall,  as  far  as  practicable,  so  order 
the  same,  as  that,  on  the  death  of  the  nonsane  person,  his  estate 
shall  be  distributed  among  his  distributees  in  the  same  equal  man- 
ner as  if  the  advancements  had  been  made  by  the  person  himself; 
and  on  his  death,  every  sum  advanced  to  a  child,  or  grandchild,  shall 
be  an  advancement,  and  shall  bear  interest  from  the  time  it  may  be 
received. 

Code,  s.  1680;  R.  C,  c.  57,  s.  12. 

1904.  Clerk  may  select  those  to  advance.  When  the  surplus 

aforesaid  shall  not  be  sufficient  to  make  distribution  among  all  the 
parties,  the  clerk  may  select  and  decree  advancements  to  such  of 
them  as  may  most  need  the  same,  and  may  apportion  the  sum  decreed 
in  such  amounts  as  shall  be  expedient  and  proper. 
Code,  s.  1681;  R.  C,  c.  57,  s.  13. 

1905.  Secured  against  waste.  It  shall  be  the  duty  of  the  clerk 
to  withhold  advancements  from  s\ich  persons  as  will  probably  waste 
them,  or  so  to  secure  the  same  when  they  may  have  families,  that  it 
may  be  applied  to  their  support  and  comfort,  but  any  sum  so 
advanced  shall  be  regarded  as  an  advancement  to  s\ich  persons. 

Codo,  s.  lGS-2;  R.  C,  c.  57,  s.  14. 

1906.  Appeal;  removal  to  superior  court.  Any  person  made  a 

party  may  appeal  from  any  order  of  the  clerk ;  or  may,  when  the 
pleadings  are  finished,  require  that  all  further  proceedings  shall  be 
had  in  the  superior  court. 
Code,  s.  1683;  R.  C,  e.  57,  s.  15. 

1907.  Advancements  only  when  insanity  permanent.  No  such 

application  shall  be  allowed  under  this  chai>tcr  but  in  cases  of  such 
pennanent  and  continued  insanity,  as  that  the  nonsane  person  shall 


1907  IDIOTS,  ETC.— 777.  Surplus  Income.  Ch.  41 

be  judged  by  tbe  clerk  to  be  incapable,  notwithstanding  any  lucid 
intervals,  to  make  advancements  with  prudence  and  discretion. 

Code,  s.  1G84;  R.  C,  c.  57,  s.  16. 

1908.  Decree  suspended  when  sane.  Upon  such  insane  person 

being  restored  to  sanity,  every  order  made  for  advancements  shall 
cease  to  be  further  executed,  and  his  estate  shall  be  discharged  of 
the  same. 

Code,  s.  1685;  R.  C,  e.  57,  s.  17. 


Note.     For  powers,  duties  and  liabilities  of  guardian,  see  ss.  1786-1797. 
Sue  by  guardian  or  next  friend,  see  ss.  405-407. 


CHAPTER  42. 
INNKEEPERS. 

(Sections  1909—1914.) 

1909.  Must  furnish  accommodations.  Every  innkeeper  shall  at 
all  times  provide  suitable  food,  rooms,  beds  and  bedding  for  strangers 
and  travelers  whom  he  may  accept  as  gTiests  in  his  inn  or  hotel. 

1903,   c.   563. 

1910.  Liability  for  loss  of  baggage.  Innlteepers  shall  not  be 
liable  for  loss,  damage  or  destruction  of  the  baggage  or  property  of 
their  guests  except  in  case  such  loss,  damage,  or  destruction  results 
from  the  failure  of  the  innkeeper  to  exercise  ordinary,  proper  and 
reasonable  care  in  the  custody  of  such  baggage  and  property,  and  in 
case  of  such  loss,  damage  or  destruction  resulting  from  tlie  negligence 
and  want  of  care  of  the  said  innkeeper  he  shall  be  liable  to  the 
owner  of  the  said  baggage  and  profierty  to  an  amount  not  exceeding- 
one  hundred  dollars :  Provided,  however,  any  guest  may  at  any  time 
before  a  loss,  damage  or  destruction  of  his  property  notify  the  inn- 
keeper in  writing  that  his  property  exceeds  in  value  the  said  sum 
of  one  hundred  dollars,  and  shall  upon  demand  of  the  innkeeper 
furnish  him  a  list  or  schedule  of  the  same,  with  the  value  thereof, 
in  which  case  the  innkeeper  shall  be  liable  for  the  loss,  damage  or 
destruction  of  said  property  because  of  any  negligence  on  his  part 
for  the  full  value  of  the  same :  Provided  further,  that  proof  of  the 
loss  of  any  such  baggage,  except  in  case  of  damage  or  destruction 
by  fire,  shall  be  prima  facie  evidence  of  the  negligence  of  said  hotel 
or  innkeeper. 

1903,  c.  56.3,  s.  2. 

581 


1911  INNKEEPERS.  Cb.  42 

1911.  Safe-keeping  of  valuables,  it  shall  be  tbe  duty  of  inn- 
keepers, upon  the  recpicst  of  any  guest,  to  receive  from  said  guest 
and  safely  keep  money,  jewelry  and  valuables  to  an  amount  not 
exceeding  five  hundred  dollars ;  and  no  innkeeper  shall  be  required 
to  receive  and  take  care  of  any  money,  jewelry  or  other  valuables 
to  a  greater  amount  than  five  Imndred  dollars:  Provided,  the  receipt 
given  by  said  innkeeper  to  said  guest  shall  have  plainly  printed 
upon  it  a  copy  of  this  section.  No  innkeeper  shall  be  liable  for 
the  loss,  damage  or  destruction  of  any  money  or  jewels  not  so  de- 
posited. 

190.%  c.  563,  s.  3. 

1912.  Loss  by  fire.  No  innkeeper  shall  be  liable  for  loss,  dam- 
age or  destruction  of  any  baggage  or  property  caused  by  fire  not 
resulting  from  the  negligence  of  the  innkecjier  or  by  any  other 
force  over  which  the  innkeeper  had  no  control :  Provided,  that  nothing 
herein  contained  shall  enlarge  the  limit  of  the  amount  to  which  the 
innlvceper  shall  be  liable  as  provided  in  preceding  sections. 

1903,  c.  563,  s.  4. 

1913.  Copies  of  this  chapter  posted.  Every  innkeeper  shall 
keep  posted  in  every  room  of  his  house  occupied  by  guests,  and  in 
the  office,  a  j^rinted  copy  of  this  chapter  and  of  all  regulations  relat- 
ing to  the  conduct  of  guests.  This  chapter  shall  not  apply  to  inn- 
keepers, or  their  guests,  where  the  innkeeper  fails  to  keep  such  notices 
posted. 

1903,  c.  563,  ss.  5,  6. 

1914.  Negligence  of  guest.  Any  innkeeper  against  whom  claim 
is  made  for  loss  sustained  by  a  guest  may  show  that  such  loss  resulted 
from  the  negligence  of  such  guest  or  of  his  failure  to  comply  with 
the  reasonable  and  proper  regulations  of  the  inn. 

1903,  c.  563,  s.  7. 


Note.     For  lien  of  innkeepers  on  baggage  and  other  property,  see  Liens,  s.  2037. 


1915     INSOLVENT  DEBTORS— 7.   Criminal  Actions.     Ch.  43 


CHAPTER  43. 
INSOLVENT  DEBTORS. 

I.  Criminal  actions. 

II.  Civil  actions — under  arrest, 

III.  Civil  actions — not  under  arrest, 

IV.  General  provisions, 
V.  Under  sentence, 


Sections. 
1915—1919 
1920—1929 
1930—1934 
1935—1942 
1943—1949 


I.     Ckiminal  Actions. 

1915.  Who  may  be  discharged  from  prison.  The  following  per- 
sons may  be  discharged  from  imprisonment  upon  complying  with 
this  chapter: 

1.  Every  putative  father  of  a  bastard  committed  for  a  failure  to 
give  bond,  or  to  pay  any  sum  of  money  ordered  to  be  paid  for  its 
maintenance. 

2.  Every  person  committed  for  the  fine  and  costs  of  any  criminal 
prosecution. 

Code,  s.  2967;  R.  C,  c.  59,  s.  I;  1773,  e.  100,  s.  1;  1808,  e.  746,  s.  2;  1810, 
c.  797,  c.  802;  1830,  c.  33;  1838,  e.  23;  1840,  cc.  33,  34;  1852,  c.  49;  1868-9, 
c.   162,  s.  20. 

1916.  When  petition  filed,  on  whom  served.  Every  such  person, 

having  remained  in  prison  for  twenty  days,  may  apply  by  petition 
to  the  court,  where  the  judgTiient  against  him  was  entered,  praying 
to  be  brought  before  such  court  at  a  time  and  place  to  be  named 
in  the  petition,  and  to  be  discharged  upon  taking  the  oath  hereinafter 
prescribed.  The  applicant  shall  cause  ten  days'  notice  of  the  time 
and  place  of  filing  the  petition  to  be  served  on  the  sheriff  or  other 
officer  b}'  whom  he  was  committed.  In  cases  of  conviction  before 
a  justice  of  the  peace  the  clerk  of  the  superior  court  of  the  county 
where  the  convicted  person  confined  for  costs  is,  may  administer  the 
oath  and  discharge  the  prisoner. 

Code,  ss.  2968,  2969;  1891,  c.  195;  R.  C,  c.  59,  s.  1;  1773,  c.  100,  s.  1;  1808, 
c.  746,  s.  2;  1810,  c.  797,  c  802;  1830,  c.  33;  1838,  c.  23;  1840,  cc.  33,  34;  1852, 
c.  49;  1868-9,  c.  162,  s.  28;  1874-5,  c.  11;  1868-9,  c.  162,  s.  27;  1873-4,  c.  90. 

1917.  Warrant  issued  for  prisoner.  The  clerk  of  the  superior 

court,  or  justice  of  the  jieaec  before  whom  such  petition  is  pre- 
sented, shall  forthwith  issue  a  warrant  to  the  sheriff,  or  keeper  of 
the  prison,   requiring  him   to   bring   the   jn-isoner  before  the  court. 


1917     INSOLVENT  DEETOES— 7.   Criminal  Actions.     Ch.  43 


at  the  time  and  place  named  for  the  hearing  of  the  case,  wliich  war- 
rant every  such  sheriff  or  keeper  shall  obey. 

Code,  s.  2970;  R.  C,  c.  59,  s.  1;  1773,  c.  100,  s.  1;  1808,  c.  746,  s.  2;  1810, 
cc.  797.  802;  1830,  c.  33;  1838(  c.  23;  1840,  ec.  33,  34;  1852,  c.  49;  1808-9, 
c.  162,  s.  29. 

1918.  Proceeding  on  application.  At  the  hearing  of  the  petition, 
if  the  prisoner  have  no  visible  estate,  and  take  and  subscribe  the 
oath  or  affirmation  jirescribed  in  the  succeeding  section,  the  clerk 
of  the  superior  court,  or  justice  of  the  peace  before  whom  he  is 
brought,  shall  administer  said  oath  or  affirmation  to  him,  and  dis- 
charge him  from  imprisonment;  of  which  an  entry  shall  be  made 
in  the  docket  of  the  court,  and,  where  the  proceeding  is  before  a 
justice  of  the  peace,  the  justice  shall  return  the  petition  and  orders 
thereon  into  the  office  of  the  clerk  of  the  superior  court  to  be  filed. 

Code,  s.  2971;  R.  C,  c.  59,  s.  1;  1773,  c.  100,  s.  1;  1808,  c.  746,  s.  2;  1810, 
c.  797,  0.  802;  1830,  c.  33;  1838,  c.  23;  1840,  ec.  33,  34;  1852,  c.  49;  1868-9, 
e.  162,  s.  30. 

1918a.   Oath  to  be  taken.   The  oath  referred  to  in  the  preceding 

section  shall  be  as  follows: 

I,   ,  do  solemnly  swear    (or  affirm)    that  I  have  not  the 

worth  of  fifty  dollars  in  any  worldly  substance,  in  debts,  money  or  otherwise 
whatsoever,  and  that  I  have  not  at  any  time  since  my  imprisonment  or  before, 
directly  or  indirectly,  sold  or  assigned,  or  otherwise  disposed  of,  or  made  over 
in  trust  for  myself  or  my  family,  any  part  of  my  real  or  personal  estate,  whereby 
to  have  or  expect  any  benefit,  or  to  defraud  any  of  my  creditors;  so  help  me, 
God. 

Code,  s.  2972;  R.  C.  c.  59,  s.  1:  1773,  c.  100,  s.  1;  1808,  c.  746,  s.  2;  1810, 
c.  797,  c.  802;  1830,  c.  33;  1838,  c.  23;  1840,  cc.  33,  34;  1852,  c.  49;  1868-9, 
c.  162,  s.  31;  1881,  c.  76. 

1919.  Who  may  suggest  fraud.  The  chairman  of  the  board  of 
connnissioners,  and  every  officer  interested  in  the  fee  bill  taxed 
against  such  prisoner,  may  oppose  bis  taking  the  oath  prescribed  in 
the  preceding  section,  and  file  particulars  of  the  suggestion  in  writing, 
in  the  court  where  the  same  shall  stand  for  trial  as  prescribed  in  this 
chapter  in  other  cases  of  fraud  or  concealment. 

Code,  s.  2973;  1868-9,  c.  162,  s.  32. 

II.     Civil  Actions — Under  Areest. 

1920.  Who  entitled.  The  following  persons  are  entitled  to  the 
benefit  of  this  chapter  : 

1.  Every  person  taken  or  charged  on  any  order  of  arrest  for  default 
of  bail,  or  on  surrender  of  bail  in  any  action. 

2.  Every  person  taken  or  charged  in  execution  of  arrest  for  any 
debt  or  danuigcs  rendered  in  any  action  whatever. 

Code,  s.  2951 ;  1868-9,  c.  162,  s.  10. 

584 


1921        INSOLVENT  DEBTOES— 17.   Under  Arrest.        Ch.  43 

1921.  When  petition  may  be  filed.  Every  person  taken  or 
charged  as  in  tlie  preceding  section  specified,  may,  at  any  time  after 
his  arrest  or  imprisonment,  petition  the  court  from  which  the  pro- 
cess issued  on  which  he  is  arrested  or  imprisoned,  for  his  discharge 
therefrom,  on  his  compliance  with  this  chapter. 

Code,  s.  2952;  R.  C,  c.  59,  s.  3;  1868-9,  e.  162,  s.  11. 

1922.  The  petition;  verification.  The  petition  shall  set  forth 

the  cause  of  the  imprisonment,  with  the  writ  or  process  and  com- 
plaint on  which  the  same  is  founded,  and  shall  have  annexed  to  it 
a  just  and  true  account  of  all  his  estate,  real  and  personal,  and  of 
all  charges  affecting  such  estate,  as  they  exist  at  the  time  of  filing 
his  petition,  together  with  all  deeds,  securities,  books  or  writings 
whatever  relating  to  the  estate  and  the  charges  thereon;  and  also 
what  property,  real  and  personal,  the  petitioner  claims  as  exempt 
from  sale  under  execution,  and  shall  have  annexed  to  it  an  oath 
or  affirmation,  subscribed  by  the  petitioner  and  taken  before  any 
person  authorized  by  law  to  administer  oaths,  to  the  effect  following : 

I,  ,  the  within  named  petitioner,  do  swear   (or  affirm.)  that 

the  within  petition  and  account  of  my  estate,  and  of  the  charges  tliereon,  are, 
in  all  respects,  just  and  true;  and  that  1  have  not  at  any  time  or  in  any  manner 
disposed  of  or  made  over  any  part  of  my  property,  with  a  view  to  the  future 
benefit  of  myself  or  my  family,  or  with  an  intent  to  injure  or  defraud  any  of 
my  creditors;  so  help  me,  God. 

Code,  ss.  2953,  2954;  R.  C,  c.  59,  s.  3;    1868-9,  c.  162,  ss.  12,  13. 

1923.  What  notice  given,  and  to  whom.  Twenty  days'  notice  of 

the  time  and  place  at  which  the  petition  will  be  filed,  together  with 
a  copy  of  such  petition  and  the  account  annexed  thereto,  shall  be 
personally  served  by  such  debtor  on  the  creditor  or  creditors  at 
whose  suit  he  is  arrested  or  imprisoned,  and  such  other  creditors  as 
the  debtor  may  choose,  or  their  personal  representatives  or  attor- 
neys ;  and  if  the  person  to  be  notified  reside  out  of  the  state,  and  have 
no  agent  or  attorney  in  the  state,  the  notice  may  be  served  on  the 
officer  having  the  claim  to  collect,  or  by  two  weekly  publications  in 
any  newspaper  in  the  state. 

Code,  s.  2955;   R.  C,  c.  59,  ss.  3,  20;   1773,  c.   100,  s.  8;    1868-9,  c.   162,  s.   14. 

1924.  Who  may  suggest  fraud.  Every  creditor  upon  whom  the 
notice  directed  in  the  preceding  section  is  served  may  suggest  fraud 
upon  the  hearing  of  the  petition,  and  the  issues  made  up  respecting 
the  fraud  shall  stand  for  trial  as  in  other  cases. 

Code,  s.  2956;  R.  C,  c.  59,  s.  13;  1822,  c.  1131,  s.  4;  1835,  e.  12;  1S68-9, 
c.  162,  s.  15. 

1925.  When  no  fraud  suggested,  debtor  discharged.  If  no  cred- 
itor suggest  f valid  or  upprise  the  clischarge  of  the  debtor,  the  justice 

585 


1925        INSOLVENT  DEBTOES— 77.  Under  Arrest.        Ch.  43 

of  the  peace  or  the  clerk  of  the  superior  court  before  whom  the  peti- 
tion is  heard,  shall  forthwith  discharge  the  debtor,  and,  if  he  siir- 
render  any  estate  for  the  benefit  of  his  creditors,  shall  appoint  a 
trustee  of  such  estate.  The  order  of  discharge  and  appointment 
shall  be  entered  in  the  docket  of  the  court,  and  if  granted  by  a  jus- 
tice of  the  peace  a  copy  thereof  shall  be  certified  by  him  to  the  clerk 
of  the  superior  court,  where  the  same  shall  be  recorded,  and  filed. 

Code,  s.  2957;  R.  C,  c.  59,  s.  1;  1773,  c.  100;  180S,  c.  746,  s.  2;  1810,  c.  797, 
c.  802;   1830,  c.  33;   1838,  c.  23;  1840,  ce.  33,  34;   1852,  e.  49;   1868-9,  c.  162,  s.  16. 

1926.  Cause  continued,  when.  Whenever  it  appears  to  the  court 
that  any  debtor,  who  may  have  given  bond  for  his  appearance  under 
this  chapter,  is  prevented  from  attending  court  by  sickness  or  other 
sufiicient  cause,  the  case  shall  be  continued  to  another  day,  or  to 
the  next  term,  when  the  same  proceedings  shall  be  had  as  if  the 
debtor  had  appeared  according  to  the  condition  of  his  bond,  and  in 
the  event  of  his  death  in  the  meantime,  his  bond  shall  be  discharged. 

Code,  s.  2959;  R.  C,  c.  59,  s.  10;  1822,  c.  1131,  s.  1;  1868-9,  c.  162,  s.  18. 

1927.  Issue  of  fraud,  how  debtor  discharged.  After  an  issue  of 

fraud  or  concealment  is   made   up,   the   debtor  shall   not   discharge 
himself  as  to  the  creditors  in  that  issue,  except  by  trial  and  verdict 
in  the  same,  or  by  a  discharge  by  consent. 
Code,  s.  2962;  R.  C,  e.  59,  s.  17;   1868-9,  c.  162,  s.  21. 

1928.  Fraud  found;  imprisoned,  how.  If,  on  the  trial,  the  jury 

find  that  there  is  any  fraud  or  concealment,  the  judgment  shall  be 
that  the  debtor  be  imprisoned  until  a  full  and  fair  disclosure  and 
account  of  all  his  money,  property  or  effects  be  made  by  the  debtor. 
Code,  s.  2961;  R.  C,  c.  59,  s.  14;  1822,  c.  1131,  s.  4;  1835,  c.  12;  1868-9. 
c.   162,  s.  20. 

1929.  Effect  of  order  of  discharge.  Tlie  order  of  discharge  un- 
der this  chapter,  whether  granted  upon  a  nonsuggestion  of  fraud, 
upon  the  finding  of  a  jury  in  favor  of  the  debtor,  or  otherwise,  shall 
be  in  like  tei-ms  and  have  like  effect  as  prescribed  in  section  one  thou- 
sand nine  hundred  and  thirty-three ;  except  that  the  body  of  such 
debtor  shall  be  free  from  arrest  or  imprisonment  at  the  suit  of  every 
creditor,  and  as  to  him  only,  to  whom  tlie  notice  rcipiircd  may  have 
been  given ;  and  the  notices,  or  copies  thereof,  shall  in  all  cases  be  filed 
in  the  oftice  of  the  superior  court  clerk. 

Code,  s.  2960;  R.  C,  c.  59,  s.  11;  1822,  c.  1131,  s.  4;  1835,  c.  12;  1868-9, 
c.  162,  s.  19. 


1930  INSOLVENT  DEBTOES— ///.  Not  Under  Arrest.   Ch.  43 
III.     Civil  Actions — Not  Undek  Aeeest. 

1930.  May  file  petition;  what  to  contain;  liovy  verified.  Every 

insolvent  debtor  may  present  a  petition  in  tlie  superior  court,  praying 
that  his  estate  may  be  assigned  for  the  benefit  of  all  his  creditors, 
and  that  his  person  may  thereafter  be  exempt  from  arrest  or  impris- 
onment, on  account  of  any  judgment  previously  rendered,  or  of  any 
debts  previously  contracted.  On  presenting  such  petition,  every 
insolvent  shall  deliver  therev^ith  a  schedule  containing  an  account 
of  his  creditors  and  an  inventory  of  his  estate,  which  said  inventory 
shall  contain — 

1.  A  full  and  true  account  of  his  creditors,  with  the  place  of  resi- 
dence of  each,  if  known,  and  the  sum  owing  to  each  creditor,  whether 
on  written  security,  on  account  or  otherwise. 

2.  A  full  and  true  inventory  of  his  estate,  real  and  personal,  with 
the  incumbrances  existing  thereon,  and  all  books,  vouchers  and  secu- 
rities relating  thereto. 

3.  A  full  and  true  inventory  of  all  property,  real  and  personal, 
claimed  by  him  as  exempt  from  sale  under  execution. 

He  shall  annex  to  his  petition  and  schedule  the  following  affidavit, 
which  must  be  taken  and  subscribed  by  him  before  the  clerk  of  the 
superior  court,  and  must  be  certified  by  such  officer : 

I,    ,  do  swear    (or  affirm)    that  the  account  of  my  creditors, 

with  the  places  of  their  residence,  and  the  inventory  of  my  estate,  wliich  are 
herewith  delivered,  are  in  all  respects  just  and  true;  that  I  have  not  at  any 
time  or  in  any  manner  disposed  of  or  made  over  any  part  of  my  estate  for  the 
future  benefit  of  myself  or  my  family,  or  in  order  to  defraud  any  of  my  credi- 
tors; and  that  I  have  not  paid,  secured  to  be  paid,  or  in  any  way  compounded 
with  any  of  my  creditors,  with  a  view  that  they,  or  any  of  them,  should  abstain 
or  desist  from  opposing  my  discharge;  so  help  me,  God. 

Code,  ss.  2942,  2943,  2944;   1868-9,  c.  162,  ss.  1,  2,  3. 

1931.  Duty  of  clerk  on  receiving   petition.  On  receiving  the 

petition,  schedule  and  affidavit,  the  clerk  of  the  superior  court  shall 
make  an  order  requiring  all  the  creditors  of  such  insolvent  to  show 
cause  before  said  officer,  within  thirty  days  after  publication  of  the 
order,  why  the  prayer  of  the  petitioner  should  not  be  granted,  and 
shall  post  a  notice  of  the  contents  of  the  order  at  the  courthouse 
door  and  three  other  public  places  in  the  county  where  the  applica- 
tion is  made  for  four  successive  weeks;  or,  in  lieu  thereof,  shall  pub- 
lish the  same  for  three  successive  weeks  in  any  newspaper  published 
in  said  county,  or  in  an  adjoining  county. 

Code,  ss.  2945,  2946;   1868-9,  c.   162,  ss.  4,  5. 

1932.  Discharged,  when.  If  no  creditor  oppose  the  discharge  of 
the  insolvent,  the  clerk  of  the  superior  court  before  whom  the  hear- 


1932   INSOLVENT  DEBTOES— ///.  Not  Under  Arrest.   Ch.  43 

ing  of  the  petition  is  had  shall  enter  an  order  of  discharge  and 
appoint  a  trustee  of  all  the  estate  of  such  insolvent. 
Code,  s.  2947;    1868-9,  c.  162,  s.  6. 

1933.  Order  of  discharge,  terms  and  effect.  The  order  of  dis- 
charge shall  declare  that  the  person  of  such  insolvent  shall  forever 
thereafter  be  exempted  from  arrest  or  imprisonment  on  account  of 
any  judgTnent,  or  by  reason  of  any  debt  due  at  the  time  of  such  order, 
or  contracted  for  before  that  time,  though  payable  afterwards.  But 
no  debt,  demand,  judgment  or  decree  against  any  insolvent,  dis- 
charged under  this  chapter,  shall  be  affected  or  impaired  by  such 
discharge,  but  the  same  shall  remain  valid  and  effectual  against 
all  the  property  of  such  insolvent  acquired  after  his  discharge  and 
the  appointment  of  a  trustee ;  and  the  lien  of  any  judgment  or  decree 
upon  the  property  of  such  insolvent  shall  not  be  in  any  manner 
affected  by  such  discharge. 

Code,  s.  2950;   1868-9,  c.  162,  s.  9. 

1934.  Creditor  may  suggest  fraud.  Every  creditor  opposing  the 

discharge  of  the  insolvent  may  suggest  fraud  and  set  forth  the  par- 
ticulars thereof  in  writing,  verified  by  his  oath ;  but  the  insolvent 
shall  not  be  compelled  to  answer  the  suggestions  of  fraud  in  more 
than  one  case,  though  as  many  creditors  as  choose  may  make  them- 
selves parties  to  the  issues  in  such  cases. 
Code,  s.  2948;   1868-9,  c.  162,  s.  7. 

IV.     General  Peovisions. 

1935.  Issue  of  fraud  made  up,  cause  docketed  for  trial.  In 

every  case  under  this  chapter  where  an  issue  of  fra\ul  is  made  up, 
the  case  shall  be  entered  in  the  trial  docket  of  tlic  superior  court, 
and  stand  for  trial  as  other  causes;  and  upon  a  finding  by  the  jury 
in  favor  of  the  petitioner  the  judge  shall  discharge  the  debtor;  if 
the  finding  be  against  the  petitioner  he  shall  be  committed  to  jail 
until  he  make  full  disclosure. 
Code,  s.  2949;  1868-9,  e.  162,  s.  8. 

1936.  Debtor  may  give  bond.  Every  debtor  entitled  to  the  pro- 
visions of  this  clia]iter  may,  at  the  time  of  filing  his  application  for 
a  discharge  or  at  any  time  afterwards,  tender  to  the  sheriff  or 
other  officer  having  his  body  in  charge,  a  bond,  with  suflicient  surety, 
in  double  the  amount  of  the  sum  due  any  creditor  or  creditors  at 
whose  suit  he  was  taken  or  charged,  conditioned  for  the  ajipearance 
of  such  debtor  before  the  court  where  his  petition  is  filed,  at  the 
hearing  thereof,  and  to  stand  to  and  abide  by  the  final  order  or  decree 


1936     INSOLVENT  DEBTORS— 77.   Gen.  Provisions.     Ch.  43 

of  the  court  in  the  case.     If  such  bond  be  satisfactory  to  the  sherifl, 
he  shall  forthwith  release  such  debtor  from  custody. 
Code,  s.  2958;  R.  C,  c.  59,  s.  27;  1868-9,  c.  162,  s.  17. 

1937.  Surety  may  surrender  principal.  The  surety  in  any  bond 

conditioned  for  the  appearance  of  any  person  under  this  chapter, 
may  surrender  the  principal,  or  such  principal  may  surrender  him- 
self, in  discharge  of  the  bond,  to  the  sheriff  or  other  officer  of  any 
court  where  such  principal  is  bound  to  appear,  in  the  manner  pro- 
vided in  the  chapter  entitled  Civil  Procedure,  subchapter  Arrest  and 
Bail. 

Code,  s.  2963;  R.  C,  c.  59,  s.  23;   1793,  c.  100,  s.  7;   1793,  e.  380,  s.   1;   1822, 
e.  1131,  s.  3;   1868-9,  c.  162,  s.  22. 

1938.  When  creditor  liable  for  jail  fees.  When  any  debtor  is 

actually  confined  within  the  walls  of  a  prison,  on  an  order  of  arrest 
in  default  of  bail  or  otherwise,  the  jailer  must  furnish  him  with 
necessary  food  during  his  confinement,  if  the  prisoner  require  it, 
for  which  the  jailer  shall  have  the  same  fees  as  for  keeping  other 
prisoners.  If  the  debtor  be  unable  to  discharge  such  fees,  the  jailer 
may  recover  them  from  the  party  at  whose  instance  the  debtor  was 
confined.  And  at  any  time  after  the  Arrest,  the  sheriff  or  jailer 
may  give  notice  thereof  to  the  plaintiff,  his  agent  or  attorney,  and 
demand  security  of  him  for  the  prison  fees  that  accrue  after  such 
notice,  and  if  the  plaintiff  fail  to  give  such  security  then  the  sheriff 
may  discharge  the  debtor  out  of  custody. 

Code,  s.  2965;  R.  C,  c.  69,  s.  5;  1773,  c.  100,  ss.  8,  9;  1821,  c.  1103;  1868-9, 
c.  162,  s.  24. 

1939.  Persons  removing  debtors  to  defraud  creditors,  liable  as 

debtor.  If  any  person  shall  remove  or  shall  aid  and  assist  in  remov- 
ing any  debtor  out  of  any  county  in  which  he  shall  have  resided  for 
the  space  of  six  months,  or  more,  with  the  intent,  by  such  removing, 
aiding  or  assisting,  to  delay,  hinder  or  defraud  the  creditors,  or  any 
of  them,  of  such  debtor,  the  person  so  removing,  aiding  or  assisting 
therein,  and  his  executors  or  administrators,  shall  be  liable  to  pay  all 
the  debts  which  the  debtor  removed  may  justly  owe  in  the  county 
from  which  he  was  so  removed ;  and  the  same  may  be  recovered  by 
the  creditors,  their  executors  or  administrators,  by  a  civil  action. 

Code,  g.  1551;  R.  C,  c.  50,  s.  14;  1820,  c.  1063. 

1940.  False  swearing;  penalty.  If  any  insolvent  or  imprisoned 
debtor  take  any  oath  prescribed  in  this  chapter  falsely  and  corruptly, 
and  upon  indictment  for  perjury  be  convicted  thereof,  he  shall  suffer 
all  the  pains  of  perjury,  and  he  shall  never  after  have  any  of  the 

589 


1940     INSOLVENT  DEBTORS— /F.   Gen.  Provisions.     Ch.  43 

benefits  of  this  chapter,  but  may  be  sued  and  imprisoned  as  though 
he  had  never  been  discharged. 

Code,  s.  2964;  R.  C,  c.  59,  s.  25;  1793,  c.  100,  s.  10;  1868-9,  c.  162,  s.  23. 

Note.     For  additional  penalty,  see  s.  3615. 

1941.  General  power  of  trustees.  Any  trustee  appointed  under 

this  chapter,  in  the  several  cases  therein  contemplated,  is  hereby 
declared  a  trustee  of  the  estate  of  the  debtor,  in  respect  to  whose  prop- 
erty such  trustee  is  apj^ointed  for  the  benefit  of  creditors,  and  is 
invested  from  the  time  of  appointment  with  all  the  powers  and 
authorities,  and  subject  to  the  control,  obligations  and  responsibili- 
ties prescribed  by  law  in  relation  to  personal  representatives  over 
the  estates  of  deceased  persons;  but  all  debts  shall  be  paid  by  the 
trustees  pro  rata. 

Code,  s.  2977;  R.  C,  c.  59,  ss.  21,  22;  1773,  c.  100,  ss.  5,  6;  1827,  c.  44;  1830,  c. 
26,  s.  2;    1868-9,  c.  162,  s.  44. 

1942.  Who  may  take  jail  bounds.  Any  imprisoned  debtor  may 
take  the  benefit  of  the  prison  boimds  by  giving  security,  as  required 
by  law,  except  as  follows: 

1.  A  debtor  against  whom  an  issue  of  fraud  is  found. 

2.  Any  debtor  who,  for  other  cause,  is  adjudged  to  be  imprisoned 
until  he  make  a  full  and  fair  disclosure  or  account  of  his  property. 

Code,  s.  2966;  R.  C,  c.  59,  s.  27;   1818,  c.  964;   1868-9,  c.  162,  s.  25. 

V.     Under  Sentence. 

1943.  Confined  in  jail  or  penitentiary,  who  may  apply  for 

trustee.  Whenever  any  debtor  is  imprisoned  in  the  penitentiary  for 
any  term  whatever,  or  in  a  county  jail  for  any  term  more  than  twelve 
months,  application  by  petition  may  be  made  by  any  creditor,  the 
debtor,  or  by  his  wife,  or  any  of  his  relatives,  for  the  appointment  of 
a  trustee  to  take  charge  of  the  estate  of  such  debtor. 
Code,  s.  2974;   1868-9,  c.  162,  s.  40. 

1944.  To  whom  application  made  when  trustee  appointed.  The 

application  must  be  made  to  the  s\iperior  court  of  the  county  where 
the  debtor  was  convicted ;  and  upon  producing  a  copy  of  the  sen- 
tence of  such  debtor,  duly  certified  by  the  clerk  of  the  court, 
together  with  an  affidavit  of  the  applicant  that  such  debtor  is  act- 
ually imprisoned  under  such  sentence,  and  is  indebted  in  any  sum 
whatever,  the  clerk  of  the  court  or  the  judge  thereof  may  imme- 
diately ajipoint  a  trustee  of  the  estate  of  such  debtor. 
Code,  s.  2975;  1868-9,  c.  162,  ss.  41,  42. 


1495      INSOLVENT  DEBTORS— F.   Under  Sentence.      Ch.  43 

1945.  Duty  of  trustee.  Every  trustee  is  required  to  pay  the 
debts  of  the  imprisoned  debtor  in  the  manner  directed  in  section 
numbered  one  tliousand  nine  hundred  and  forty-one ;  and  after  paying 
such  debts,  the  trustee  shall  apply  the  surplus,  from  time  to  time,  to 
the  support  of  the  wife  and  children  of  such  debtor,  under  the  direc- 
tion of  the  superior  court;  and  Avhenever  such  imprisoned  debtor  is 
lawfully  discharged  from  his  imprisonment,  the  trustee  so  appointed 
-hall  deliver  up  to  him  all  the  estate,  real  and  personal,  of  such 
'k'btor,  after  retaining  a  suiScient  sum  to  satisfy  the  expenses  in- 
'iirred  in  the  execution  of  the  trust  and  lawful  commissions  therefor. 

Code,  s.  2976;    1868-9,  e.  162,  s.  43. 

1946.  Trustee  to  make  returns.  Such  trustee  shall  make  his 
returns  and  have  his  accounts  audited  and  settled  by  the  clerk  of  the 
superior  court  of  the  county  where  the  proceeding  was  had,  in  like 
manner  as  provided  for  personal  representatives. 

Code,  s.  2978;  1868-9,  c.  162,  s.  45. 

1947.  Oath  of  trustee.  Before  proceeding  to  the  discharge  of 
his  duty,  such  trustee  shall  take  and  subscribe  an  oath,  well  and  truly 
to  execute  his  trust  according  to  his  best  skill  and  understanding; 
which  oath  m\ist  be  filed  with  the  clerk  of  the  superior  court. 

Code,  s.  2979;   1868-9,  e.  162,  s.  46. 

1948.  May  appoint  several  trustees.   The  court  shall  have 

power,  when  deemed   necessary,   to  appoint  more  than  one  person 
trustee  under  this  chapter;  but  in  reference  to  the  rights,  authorities 
and  duties  conferred  herein,  all  such  trustees  shall  be  deemed  one 
person  in  law. 
Code,  s.  2980;  1S68-9,  c.  162,  s.  47. 

1949.  Court  may  remove  trustee  and  appoint  successor.  In 

case  of  the  death,  removal,  resignation  or  other  disability  of  a  trus- 
tee, the  court  making  the  appointment  may  from  time  to  time  sup- 
ply the  vacancy;  and  all  proceedings  may  be  contimied  by  the  suc- 
cessor in  office  in  like  manner  as  in  the  first  instance. 
Code,  s.  2981 ;  1868-9,  c.  162,  s.  48. 


591 


1950  INTEEEST.  Ch.  44 


CHAPTEK  44. 
INTEREST. 

(Sections  1950—1956.) 

1950.  Rate  of,  six  per  cent.  The  legal  rate  of  interest  shall  be 
six  per  centiun  per  annum  for  such  time  as  interest  may  accrue,  and 
no  more. 

Code,  s.  3385;  1895,  c.  69;  1876-7,  c.  91. 

1951.  Penalty  for  usury;  corporate  bonds  sold  below  par.  The 

taking,  receiving,  reserving  or  charging  a  greater  rate  of  interest 
than  six  per  centum  per  annum,  either  before  or  after  the  interest 
may  accrue,  Avhen  knowingly  done,  shall  be  a  forfeiture  of  the  entire 
interest  which  the  note  or  other  evidence  of  debt  carries  with  it, 
or  which  has  been  agreed  to  be  paid  thereon.  And  in  case  a  greater 
rate  of  interest  has  been  paid,  the  person  or  his  legal  representatives 
or  corporation  by  whom  it  has  been  paid,  may  recover  back  twice 
the  amount  of  interest  paid,  in  an  action  in  the  nature  of  action  for 
debt:  Provided,  that  in  any  action  brought  in  any  court  of  compe- 
tent jurisdiction  to  recover  upon  any  such  note  or  other  evidence  of 
debt,  it  shall  be  lawful  for  the  party  against  whom  the  action  is 
brought  to  plead  as  a  counterclaim  the  penalty  above  provided  for, 
to-wit,  twice  the  amount  of  interest  paid  as  aforesaid,  and  also  the 
forfeiture  of  the  entire  interest:  Provided  further,  that  nothing- 
contained  in  the  foregoing  section  shall  be  held  or  construed  to  pro- 
hibit private  corporations  from  paying  a  commission  on  or  for  the 
sale  of  their  coupon  bonds,  nor  from  selling  such  bonds  for  less  than 
the  par  value  thereof.  This  section  shall  not  apply  to  contracts  exe- 
cuted prior  to  February  twenty-first,  one  thousand  eight  hundred 
and  ninety-five. 

Code,  s.  3836;  1895,  c.  69;  1903,  c.  154;  1876-7,  c.  91. 

Note.     For  limitation  of  actions,  see  Civil  Procedure,  s.  396. 

For  damages  against  officers  for  money  unlawfully  detained,  see  s.  284. 

For  special  usury  statute  for  New  Hanover  and  Guilford  counties,  see  1905,  c. 
819. 

1952.  Time  from  which  it  runs.  Interest  is  due  and  payable  on 
instrinnents,  as  follows : 

1.  Where  the  instrument  provides  for  the  payment  of  interest 
without  specifying  the  date  from  which  interest  is  to  run,  the  interest 
runs  from  the  date  of  the  instrument,  and  if  the  instrument  is 
undated,  from  the  issue  thereof. 


1!)52  IjSTTEEEST.  Ch.  4i 

2.  All  bonds,  bills,  notes,  bills  of  exchange,  liquidated  and  settled 
:iceounts,  shall  bear  interest  from  the  time  they  become  due,  pro- 
vided such  liquidated  and  settled  accounts  be  signed  by  the  debtor, 
unless  it  be  sjDecially  expressed  that  interest  is  not  to  accnie  until  a 
time  mentioned  in  the  said  writings  or  securities. 

3.  All  bills,  bonds,  or  notes  payable  on  demand,  shall  be  held  and 
deemed  to  be  due  when  demandable  by  the  creditor,  and  shall  bear 
interest  from  the  time  they  are  demandable,  unless  otherwise  ex- 
pressed. 

4.  All  securities  for  the  payment  or  delivery  of  specific  articles 
shall  bear  interest  as  moneyed  contracts;  and  the  articles  shall 
be  rated  by  the  jury  at  the  time  they  become  due. 

5.  Bills  of  exchange  which  shall  be  drawn  or  indorsed  in  the 
state,  and  have  been  protested,  shall  carry  intei'est,  not  from  the  date 
thereof,  but  from  the  time  of  payment  therein  mentioned. 

Code,  ss.  44,  45,  46,  47;  1899,  c.  73.3,  s.  17,  sub-s.  2;  E.  C,  c.  13;  1786,  c.  248; 
1828,  c.  2. 

1953.  Guardian  notes  bear  compound.  Guardians  shall  have 

power  to  lend  any  portion  of  the  estate  of  their  wards  upon  bond 
with  sufficient  seciirity,  to  be  repaid  with  interest  annually,  and  all  the 
bonds,  notes  or  other  obligations  which  he  shall  take  'as  giiardian, 
shall  bear  compound  interest,  for  which  he  must  account,  and  he  may 
assign  the  same  to  the  ward  on  settlement  with  him. 

Code,  s.  1.592;  E.  C,  c.  54,  s.  23;   1762,  c.  69;   1816,  c.  92.5;   1868-9.  o.  201,  s.  29. 

1954.  Contracts,  except  penal  bonds  and  judgments  to  bear; 

jury  to  distinguish  principal  from.  All  sums  of  money  due  by  con- 
tract of  any  kind  whatsuever,  excepting  money  due  on  penal  Iwuds, 
shall  bear  interest,  and  when  a  jury  shall  render  a  verdict  therefor 
they  shall  distinguish  the  principal  from  the  sum  allowed  as  inter- 
est; and  the  principal  sum  due  on  all  such  contracts  shall  bear  inter- 
est from  the  time  of  rendering  judgment  thereon  until  it  be  paid 
and  satisfied.  In  like  manner,  the  amount  of  any  judgment  or 
decree,  except  the  costs,  rendered  or  adjudged  in  any  kind  of  action, 
though  not  on  contract,  shall  bear  interest  till  paid,  and  the  judg- 
ment and  decree  of  the  court  shall  be  rendered  according  to  this 
section. 

Code,  s.  .530;  E.  C,  c.  31,  s.  90;  1786,  c.  2.53;  1789,  c.  314,  s.  4;  1807,  e,  721. 

1955.  After  verdict  or  report,  computed  by  clerk.  When  the 

judgment  is  tVir  tlie  recovery  of  money,  interest  from  the  time  of 
the  verdict  or  report  until  judgment  be  finally  entered  shall  be  com- 
puted by  the  clerk  and  added  to  the  costs  of  the  party  entitled 
thereto. 
Code,  s.  .529. 

Eev.  Vol.  T— 34  .mS 


1956  INTEREST.  Cli.  44 

1956.  Judgment  by  default  final,  clerk  ascertains.  Whenever 

a  suit  shall  bo  instituted  on  a  siniilc  ImiuiI,  a  cDVL'uant  for  the  payment 
of  money,  bill  of  exchange,  promissory  note,  or  a  signed  account, 
and  the  defendant  shall  not  plead  to  issue  thereon,  upon  judgment, 
the  clerk  of  the  court  sliall  ascertain  the  interest  duo  by  law,  without 
a  writ  of  inquiry,  and  the  amount  shall  be  included  in  the  final  judg- 
ment of  the  court  as  damages,  which  judgment  shall  be  rendered 
therein  in  the  manner  prescribed  by  section  one  thousand  nine  hun- 
dred and  fifty-four. 

Code,  s.  531;  R.  C,  c.  31,  s.  !)1  ;   1797,  c.  475. 


CHAPTER  45. 
JURORS. 

Sections. 
I.     How  selected,  1957—1963 

II.     Petit  juiors  and  tulesincn,  1964— 106S 

III.  Grand  juiors,  1969— 197-J 

IV.  Special  venire,  1973—1975 
V.     General  provisions,  1976 — 19S1 

I.     How   Selected. 

1957.  List  made  by  county  commissioners.   The  board  of 

count}'  commissioners  for  the  several  counties  at  their  regular  meet- 
ing on  the  first  Monday  in  June,  iu  the  year  nineteen  hundred  and 
five  and  every  two  years  thereafter,  shall  cause  their  clerks  to  lay 
before  them  the  tax  returns  of  the  preceding  year  for  their  county, 
from  which  they  shall  jiroceed  to  select  the  names  of  all  such  persons 
as  have  paid  all  the  taxes  assessed  against  them  for  the  ])reced- 
ing  year  and  are  of  good  moral  character  and  of  suflicient  intelli- 
gence. A  list  of  the  names  thvis  selected  shall  be  made  out  by  the 
clerk  of  the  board  of  commissioners  and  .shall  constitiito  ihe  jury  list, 
and  shall  be  preserved  as  such. 

1899,  c.  729;  Code,  ss.  1722,  1723;  1897,  cc.  117,  5.39;  1889,  c.  5.59;  1806,  c.  694. 

1958.  Names  put  in  boxes.  The  commissioners  at  their  regular 
meeting  on  the  first  ^louday  in  July  in  the  year  nineteen  hundred 
and  five,  and  every  two  years  thereafter,  shall  cause  the  names  on 
their  jury  list  to  be  co]iied  on  small  scrolls  of  pajier  of  equal  size 
and  put  into  a  box  procured  for  that  ])ur])oso,  which  must  have  two 
divisions  marked  No.  1   and  Xo.  2,  respectively,  and  two  hicks,  the 


195S  JUEORS— 7.  How  Sehded.  C'h.  -i.j 

key  of  one  to  be  kept  by  the  sheriff  of  the  couuty,  the  other  by  the 
chairman  of  the  board  of  commissioners,  and  the  box  by  the  clerk 
of  the  board. 

Code,  s.  1726;   1868-9,  c.  9.  s.  5. 

Note.     For  manner  of  drawing  jury  in  Guilford,  see  1905.  c.  613. 

1959.  Drawn  from  box,  how.  At  least  twenty  days  before  each 
regnlar  or  sjiucial  term  of  the  superior  court,  the  board  of  commis- 
sioners of  the  county  shall  cause  to  be  drawn  from  the  jury  box  out 
of  the  partition  marked  No.  1  by  a  child  not  more  than  ten  years  of 
age,  thirty-six  scrolls  (in  Cumberland  county  the  commissioners  may, 
in  their  discretion,  cause  to  be  drawn  from  the  jury  box  an  addi- 
tional twelve  scrolls),  except  when  the  term  of  court  is  for  (he  trial 
of  civil  cases  exclusively,  when  they  need  not  draw  more  than  twenty- 
four  scrolls,  and  the  persons  whose  names  are  inscribed  on  said 
scrolls  shall  serve  as  jurors  at  the  term  of  the  superior  court  to  be 
held  for  the  county  ensuing  such  drawing,  and  for  which  they  are 
drawn,  and  the  scrolls  so  drawn  to  make  the  jury  shall  be  pTit 
into  the  partition  marked  No.  2.  The  said  commissioners  shall 
at  the  same  time  and  in  the  same  manner  draw  the  names  of  eigh- 
teen persons  who  shall  be  summoned  to  appear  and  serve  during 
the  second  week  (except  in  the  counties  of  Iredell  and  Rowan,  where 
twenty-four  jurors  shall  be  drawn,  and  except  in  Hertford  county, 
where  fifteen  extra  jurors  shall  be  drawn),  and  a  like  number  for 
each  succeeding  week  of  the  term  of  said  court,  unless  the  judge 
thereof  shall  sooner  discharge  all  -jurors  from  further  service ;  and 
the  trial  jury  which  has  served  during  each  week,  shall  be  discharged 
by  the  judge  at  the  close  of  said  week,  unless  the  said  jury  shall  be 
then  actually  engaged  in  the  trial  of  a  case,  and  then  they  shall  not  be 
discharged  until  the  trial  is  determined.  The  said  commissioners 
may,  at  the  same  time  and  in  the  same  manner,  draw  the  names  of 
eighteen  other  persons,  who  shall  serve  as  petit  jurors  for  the  week 
for  which  they  are  drawn  and  summoned. 

Code,  ss.  1727.  1731:  1889,  c.  5.59:  1897,  c.  117;  1868-9,  c.  175;  1868-9,  c.  9,  s.  6 ; 
1806.  c.  694;  1901.  r.  G36 ;  1901,  c,  28,  s.  3:  1903,  c.  11;  1905.  cc.  38,  76,  s.  4;  190.".. 
c.  285. 

1960.  Jurors  with  suits  pending.  If  any  of  the  jurors  drawn 
liave  a  suit  ])ending  and  at  issue  in  the  superior  court,  the  scrolls 
with  their  names  must  be  returned  into  partition  No.  1  of  the  jury 
box. 

Code,  s.  1728;   1868-9,  c.  9.  s.  7;   1806,  c,  694. 

1961.  When  disqualified  persons  are  drawn.  If  any  of  the  per- 
sons drawn  to  serve  as  jurors  be  dead,  removed  out  of  the  county, 
or   otherwise   disqualified   to   serve   as   jurors,    the   scrolls   with   the 

595 


10C.1  JUKOES— /.  IIou-  Selected.  ■     Ch.   -t:. 

uaines  of  such  persons  nnist  be  destroyed,  and  in  such  cases  otlier 
jsersons  shall  be  drawn  in  their  stead. 

Code,  s.  1729;  18S9,  c.  559;  1897,  c.  117,  s.  5;  180G,  c.  694. 

1962.  How  drawing  to  continue.  The  drawing  out  of  partition 
marked  Xo.  1  and  putting  the  scrolls  drawn  into  partition  Xo.  2 
shall  continue  until  all  the  scrolls  in  partition  No.  1  are  drawn 
out,  when  all  the  scrolls  shall  be  returned  into  partition  Xo.  1  and 
drawn  out  again  as  herein  directed. 

Code,  s.  1730;   1868-9,  c.  9,  s.  9;   1806,  c.  6.  s.  94. 

1963.  When  commissioners  fail  to  draw  jury.  If  the  commis 

sioners  for  any  cause  fail  to  draw  a  jury  for  any  term  of  the  supe- 
rior court,  regular  or  special,  the  sheriff  of  the  county  and  the  clerk 
of  the  commissioners  in  the  presence  of,  and  assisted  by  two  justices 
of  the  peace  of  the  county,  shall  draw  such  jury  in  the  manner  above 
prescribed ;  and  if  a  special  term  shall  continue  for  more  than  two 
weeks,  then  for  the  weeks  exceeding  two,  a  jury  or  juries  may  be 
drawn  as  in  this  section  provided. 

Code,  s.   17.32;   1868-9,  c.  9,  s.  11. 

II.      Petit  Jueoks  and  Talesmen. 

1964.  Peremptory  challenges.  The  clerk,  before  a  jury  shall  be 
ini]ianeled  t(i  try  the  issues  in  any  civil  suit,  shall  read  over  the 
names  of  the  jury  upon  the  panel  in  the  presence  and  hearing  of 
the  parties  or  their  counsel ;  and  the  parties,  or  their  counsel  for 
them,  may  challenge  peremptorily  four  jurors  upon  the  said  panel, 
without  showing  any  cause  therefor,  which  shall  be  allowed  by  the 
court. 

Code,  9.  406;  R.  C,  c.  31,  s.  35;   1796,  c.  452,  s.  2;   1812,  c.  833. 

1965.  Peremptory  challenges  apportioned  between  defendants. 

When  there  are  two  or  more  defendants  in  a  civil  action  the  jtidge 
presiding  at  the  trial,  if  it  appears  to  the  court  that  there  are  divers 
and  antagonistic  interests  between  the  defendants,  may  in  his  discre 
tion  apportion  among  the  defendants  the  challenges  now  allowed  In- 
law to  defendants,  or  he  may  increase  the  number  of  challenges  to  ni>t 
exceeding  four  to  each  defendant  or  class  of  defendant.s  representing 
the  same  interest:  Provided,  in  either  event  the  same  number  of 
challenges  shall  be  allowed  each  defendant  or  class  of  defendants 
representing  the  same  interest:  Provided  further,  that  the  decision 
of  the  judge  as  to  the  nature  of  the  interests  and  number  of  chal- 
lenges shall  be  final. 
1905,  c.  357. 

59G 


l-.icti  JUEOES— 77.  Petit  and  Talesmen.  Cb.  45 

1966.  Sworn;  judge  decides  competency.  The  clerk  shall,  at 

I  lie  beginning  of  the  court,  swear  such  of  the  petit  jury  as  are  of  the 
"liginal  panel,  to  try  all  civil  cases;  and  if  there  should  not  be  enough 
'if  the  original  panel,  the  talesmen  shall  be  sworn;  and  the  petit 
jurors  of  the  original  panel,  as  well  as  talesmen,  shall  be  sworn  as 
prescribed  in  the  chapter  entitled  Oaths:  Provided,  that  nothing 
herein  shall  be  construed  to  disallow  the  usual  challenges  in  law  to 
rhe  whole  jury  so  sworn  or  to  any  of  them;  and  if  by  reason  of  such 
'hallenge,  any  juror  shall  be  withdrawn,  his  place  on  the  jury  shall 
lie  supplied  by  any  of  the  original  venire,  or  from  the  bystanders 
'pialified  to  serve  as  jurors,  and  the  judge  or  other  presiding  officer 
ii|'  the  court  shall  decide  all  questions  as  to  the  competency  of  jurors 
m  lioth  civil  and  criminal  actions. 

lode,  s.  405;  R.  C,  c.  31,  s.  34;   1790,  c.  321;   1822,  c.  1133,  s.  1. 

1967.  Tales  jurors  summoned;  qualifications.  That  there  may 

not  be  a  defect  of  jurors,  the  sheriff  shall  by  order  of  court  smumon, 
from  day  to  day,  of  the  b^'standers,  other  jurors,  being  freeholders, 
within  the  county  where  the  court  is  held,  to  serve  on  the  petit  jury, 
and  on  any  day  the  court  may  discharge  those  who  have  served  the 
]-)receding  day.  It  shall  be  a  disqualification  and  gi'ound  of  chal- 
lenge to  any  tales  juror  that  such  juror  has  acted  in  the  same  court 
as  grand,  petit  or  tales  juror  within  two  years  next  preceding  such 
term  of  the  court. 

Code,  s.  1733;  R.  C,  31.  s.  29;  1779,  e.  156,  s.  69. 

1968.  Judge  to  appoint  one  to  summon  tales  jurors,  sheriff 

interested.  In  the  trial  of  any  action  before  a  jury  where  the  sheriif 
of  the  county  in  which  the  case  is  to  be  tried  is  a  party  to  or 
has  any  interest  in  the  action,  or  when  the  presiding  judge  shall 
find  upon  investigation  that  the  sheriff  of  the  county  is  not  a  suitable 
person,  on  account  of  indirect  interest  in  or  relative  to  the  cause  of 
action,  to  be  entrusted  with  the  summoning  of  the  tales  jurors  in 
any  particular  case  pending,  such  judge  shall  appoint  some  suitable 
person  to  s\immon  the  jurors  in  place  of  the  sheriff. 
1889,  e.  441. 

III.     Grand  Jurors. 

1969.  How  drawn.  The  judges  of  the  superior  court,  at  the 
terms  of  their  coiirts,  except  those  terras  which  are  for  the  trial  of 
civil  cases  exclusively,  and  special  terms  for  which  no  grand  jury 
has  been  ordered,  shall  direct  the  names  of  all  persons  returned  as 
jurors  to  he  written  on  scrolls  of  paper  and  put  into  a  box  or  hat 
and  drawn  out  by  a  child  under  ten  years  of  age;  whereof  the  first 

597 


1969  JURORS—///.    Grand  Jurors.  Ch.   4". 

eighteen  drawn  shall  be  a  grand  jury  for  the  court :  and  the  residue 
shall  serve  as  petit  jurors  for  the  court. 

Code,  s.  404;  E.  C,  c.  31,  s.  33;  1779,  c.  157,  s.  11. 

Note.     For  special  terms,  see  s.  1515. 

1970.  Exceptions  to,  when  taken.  All  exceptions  to  grand  ju- 
rors for  and  on  account  of  their  disqualifications  shall  be  taken 
before  the  jury  is  sworn  and  impaneled  to  try  the  issue,  by  motion 
to  quash  the  indictment,  and  if  not  so  taken  the  same  shall  be  deemed 
to  have  been  waived. 

Code,  s.   1741. 

1971.  Foreman  may  administer  oaths.  The  foreman  of  every 

grand  jury  duly  sworn  and  impaneled  in  any  of  the  courts  shall 
have  power  to  administer  oaths  and  aflirmations  to  persons  to  be 
examined  before  it  as  witnesses:  Provided,  that  the  said  foreman 
shall  not  administer  such  oath  or  affirmation  to  any  persons  except 
those  whose  names  are  endorsed  on  the  bill  of  indictment  by  the 
officer  prosecuting  in  behalf  of  the  state,  or  by  direction  of  the  court : 
Provided  further,  that  the  foreman  of  the  grand  jury  shall  mark 
on  the  bill  the  names  of  the  witnesses  sworn  and  examined  before  the 
j^ry. 
Code,  s.  1742;   1879,  c.  12. 

1972.  Must  visit  jail  and  county  home.   Every  grand  jury,  while 

the  court  is  in  session,  shall  visit  the  county  home  for  the  aged  and 
infirm,  the  workhouse,  if  there  is  one,  and  the  jail,  examine  the  same, 
and  especially  the  apartments  in  which  inmates  and  prisoners  shall 
be  confined  ;  and  they  shall  report  to  the  court  the  condition  thereof 
and  of  the  inmates  and  prisoners  confined  therein,  and  also  the  man- 
ner in  which  the  jailer  or  superintendent  has  discharged  his  duties. 
Cotlc,  s.  785;  R.  C,  c.  30,  s.  3:  1816,  c.  nil,  s.  3. 


Note.  For  duty  of  grand  jury  in  rc])ortin<;  infants  without  f;uardian.  see 
s.  1810. 

IV.     Special  Venire. 

1973.  Ordered;  summoned.  Whenever  a  judge  of  the  superior 
court  shall  deem  it  lu'cessary  to  a  fair  and  imjiartial  trial  of  any 
person  charged  with  a  capital  offense,  he  may  issue  to  the  sheriff 
of  the  county  in  which  the  trial  may  be,  a  special  writ  of  veiiire 
facias,  commanding  him  to  summon  such  number  of  the  freeholders 
of  said  county  as  the  judge  may  deem  suflicient  (such  number  being 
designated  in  the  writ),  to  appear  on  some  specified  day  of  the  term 
as  jurors  of  said  court;  and  the  sheriff  shall  forthwith  execute  the 


Ill 73  JURORS— ZF.  Special  Venire.  Cli.  45 

writ  and  return  it  to  tlie  clerk  of  the  court  on  the  day  when  the 
same  shall  be  returnable,  with  the  names  of  the  jurors  summoned. 
Code,  s.  1738;  R.  C,  e.  35,  s.  30;  1830,  e.  27. 

1974.  Drawn  from  box,  when.  Whenever  a  judge  shall  deem  a 
special  venire  necessary,  he  may,  at  his  discretion,  issue  an  order  to 
the  clerk  of  the  board  of  commissioners  for  the  county,  commanding 
him  to  bring  into  open  court  forthwith  the  jury  boxes  of  the  county, 
and  he  shall  cause  the  number  of  scrolls  as  designated  by  him  to  be 
drawn  from  box  No.  1  by  a  child  under  ten  years  of  age.  And  the 
names  so  drawn  (being  freeholders)  shall  constitute  the  special  ve- 
nire, and  the  clerk  of  the  superior  court  shall  insert  their  names  in 
the  writ  of  venire,  and  deliver  the  same  to  the  sheriff  of  the  county, 
and  the  persons  named  in  the  writ  and  no  others  shall  be  summoned 
by  the  said  sheriff.  If  the  special  venire  is  exhausted  before  the  jury 
is  chosen,  the  judge  in  his  discretion  may  order  another  special  venire 
to  be  drawn  and  summoned  in  like  manner  as  the  first,  until  the 
jury  has  been  chosen.  The  scrolls,  containing  the  names  of  the 
persons  drawn  as  jurors  from  box  l\o.  1  shall,  after  tke  jury  is 
chosen,  be  placed  in  box  ISTo.  2 ;  and  if  box  Ko.  1  is  exhausted  before 
the  jury  is  chosen,  the  drawing  shall  be  completed  from  box  No.  2, 
after  the  same  shall  have  been  well  shaken.  In  the  counties  of  Dur- 
ham and  Rockingham  whenever  a  special  venire  is  ordered,  the 
jurors  shall  be  drawn  as  herein  provided. 

Code,  s.  1739;   1897,  c.  364. 

1975.  Penalty  on  sheriff  not  executing;  on  jurors  not  attending. 

If  any  sheriff  shall  fail  duly  to  execute  and  return  such  writ  of 
venire  facias,  he  shall  be  fined  by  the  court  not  exceeding  one  hun- 
dred dollars;  and  all  jurors  so  summoned  shall  attend  until  dis- 
charged by  the  court,  under  the  same  rules  and  penalties  as  are  pre- 
scribed for  other  jurors. 

Code,  s.  1740;  R.  C,  c.  35.  s.  31;   1830,  c.  27,  s.  2. 

V.     General  PEovISIo^^s. 

1976.  Summoned  and  must  attend  until  discharged.  The  clerk 

of  the  board  of  county  commissioners  shall,  within  five  days  from  the 
drawing,  deliver  the  list  of  the  jurors  drawn  for  the  superior  court 
to  the  sheriff  of  the  county,  who  shall  summon  the  persons  therein 
named  to  attend  as  jurors  at  such  court,  which  s\immons  shall  be 
served,  personally,  or  by  leaving  a  copy  thereof  at  the  house  of  the 
juror,  at  least  five  days  before  the  sitting  of  the  court  to  which  he 


197Ci  JUEORS— T'.   General  Provisions.  C'li.  io 

may  be  summoned ;  and  jurors  shall  apj)ear  and  give  their  attend- 
ance until  diily  dischaiged. 

Code,  s.  1733;  1868-9,  e.  9,  s.  12;  R.  C,  c.  31,  s.  29;  1779,  c.  157,  ss.  4,  6. 

1977.  Penalty  for  nonattendance,  regular  and  tales.    Every 

person  on  the  original  venire  summoned  to  appear  as  a  juror,  who 
shall  fail  to  give  his  attendance  until  duly  discliargcd,  shall  forfeit 
and  pay  for  the  use  of  the  county  the  sum  of  twenty  dollars,  to  be 
imposed  by  the  court:  Provided,  that  each  delinquent  juryman  shall 
have  until  the  next  succeeding  term  to  make  his  excuse  for  his  non- 
attendance,  and,  if  he  shall  render  an  excuse  deemed  sufficient  by 
the  court,  he  shall  be  discharged  without  costs.  And  every  person 
summoned  of  the  bystanders,  who  shall  not  appear  and  serve  during 
the  day  as  a  juror,  shall  be  fined  in  the  sum  of  two  dollars,  unless  he 
can  show  sufficient  cause  to  the  court;  and  the  clerk  shall  forthwith 
issue  an  execution  against  the  estate  of  the  delinquent  tales  juror 
for  such  amercement  and  costs. 

Code,  ss.  1734,  405;  R.  C,  c.  31.  s.  30;  1779.  c.  157,  s.  4;  1783,  o.  180;  1800. 
c.  694. 

1978.  Furnished  with  accommodations.  When  any  jury,  im- 
paneled to  try  any  cause,  shall  be  put  in  charge  of  an  officer  of 
the  court,  the  said  officer  shall  furnish  said  jury  with  such  accom- 
modation as  the  court  may  order,  and  the  same  shall  be  paid  for 
by  the  party  cast  or  by  the  county,  imder  the  order  and  in  the  dis- 
cretion of  the  judge  of  said  court. 

Code,  s.  1736;  1876-7,  c.  173;  1889,  c.  44. 

1979.  Exempt  from  civil  arrest.  Xo  sheriff  or  other  officer  shall 
arrest  imder  civil  process  any  juror  during  his  attendance  on  or 
going  to  and  returning  from  any  court  of  record.  All  such  service 
shall  be  void,  and  the  defendant  on  motion  shall  be  discharged. 

Code,  s,  1735;  R.  C,  c.  31.  s.  31;   1779,  c.  157,  s.  10. 

1980.  Exemptions  from  jury  duty.  Xo  practicing  physician, 
licensed  druggist,  telegraph  operator  who  is  in  the  regular  employ 
of  any  telegraph  company  or  railroad  company,  train  dispatcher 
who  has  the  actual  handling  of  either  freight  or  passenger  trains, 
regularly  licensed  pilot,  regular  minister  of  the  gospel,  officer  or 
employee  of  a  state  hospital  for  the  insane,  or  active  member  of  a 
fire  company,  shall  be  required  to  serve  as  a  juror. 

Code,  as.  1723,  2269;  1901,  c.  118;  1897,  c.  32;  1889,  c.  255;  1885,  c.  289. 

1981.  Clerk  to  keep  record  of  jurors.  The  dork  of  the  su]).- 

ri(ir  court  shall  record   alphaljetically   in   a   buok   kept  for  the   ])ur- 

600 


r.isl  JURORS — V.   General  Provisions.  Ch.  45 

pi'sc  the  names  of  all  grand   and  petit  jurors  and  talesmen   who 
-hall  serve  in  his  court,  with  the  term  at  which  they  serve. 

1893,  c.  52,  s.  3. 

]S!"0TE.     See  Clerk  Superior  Court. 


XoTE.     For  compensation  of  jurors,  see  s.  2798. 

For  list  of  guardians  furnished  grand  jury,  see  Guardian, 

For  arguments  to  jury,  see  Attorneys,  s.  216. 

For  jurors  in  justices'  courts,  see  s.  1428  et  seq. 

For  province  of,  in  divorce,  see  s.  1564. 

For  right  of  trial  by  jury,  see  ss.  527,  533,  2005. 

For  waiver  of  trial  by  jury,  see  s.  540. 

For  verdicts  by  jurors,  see  ss.  550,  553. 


CHAPTER  46. 
LANDLORD  AND  TENANT. 


Sections. 


I.  The  relation.  1982—1985 

II.  The  lessor.  1986—1989 

III.  The  lessee,  1990—1992 

IV.  Agricultural  tenancies,  1993—2000 
V.  Summary  ejectment,  2001 — 2010 

VI.  Forms,   "  2011 

I.        TilE    RiCL.VTION. 

1982.  Lessors  and  lessees,  not  partners.  Xo  lessor  of  prop- 
erty, merely  by  reason  that  he  is  to  receive  as  rent  or  compensation 
for  its  use  a  share  of  the  proceeds  or  net  profits  of  the  business  in 
which  it  is  employed,  or  any  other  uncertain  consideration,  shall  be 
held  a  partner  of  the  lessee. 

Code,  s.  1744;  1868-9,  c.  156,  s.  3. 

1983.  Forfeiture  without  demand  for  rent,   when.  Whenever 

any  half  year's  rent  or  more  shall  be  in  arrear  from  any  tenant  to 
liis  landlord,  and  the  landlord  has  a  subsisting  right  to  re-enter 
for  the  nonpayment  of  such  rent,  he  may  bring  an  action  for  the 
recovery  of  the  demised  premises,  and  the  service  of  the  summons 
therein  shall  be  deemed  equivalent  to  a  demand  of  the  rent  in 
arrear  and  a  re-entry  on  the  demised  premises,  and  if,  on  the  trial 
of  the  caiise,  it  shall  appear  that  the  landlord  had  a  right  to  re-enter 
the  plaintiff  shall  have  judgment  to  recover  the  demised  premises 
and  his  costs. 
Code,  1745;  1868-9,  c.  156,  s.  156. 


19S4  LAXDLOED,    ETC.—/.   The   Bclnfion.  Cli.   4tl 

1984.  Length  of  notice  to  quit.  A  tenancy  from  year  to  year 
may  be  terminated  by  a  notice  to  qnit  given  one  month  or  more 
before  the  end  of  the  current  year  of  the  tenancy;  a  tenancy  from 
month  to  month  by  a  like  notice  of  seven  days;  a  tenancy  from 
week  to  week,  of  two  days. 

Code,  s.  1750;  1891,  c.  227;  1868-9,  c.  156,  s.  9. 

1985.  Agreement  to  repair,  how  construed.  An  agreement  in 

a  lease  to  repair  a  demised  house  sliall  not  be  construed  to  bind 
the  contracting  party  to  rebuild  or  repair  in  case  the  house  shall 
be  destroyed  or  damaged  to  more  than  one-half  its  value,  by  acci- 
dental fire  not  occurring  from  the  want  of  ordinary  diligence  on 
his  part. 

Code,  s.  1752;   1868-9,  c.  156,  s.  11. 

II.     The   Lessok. 

1986.  Recovers  for  use,  when.  Whenever  any  person  shall  oc- 
cupy land  of  another  by  the  permission  of  s\ich  other,  without  any 
express  agreement  for  rent,  or  upon  a  parol  lease  which  is  void, 
the  landlord  may  recover  a  reasonable  compensation  for  such  occu- 
pation, and  if  by  such  parol  lease  a  certain  rent  was  reserved,  such 
reservation  may  be  received  as  evidence  of  tlic  value  of  the  occu- 
pation. 

Code,  s.  1746;  1868-9,  c.  1.56,  s.  5. 

1987.  Rent  apportioned,  estate  terminated.  If  a  lease  of  land, 

in  which  rent  is  reserved,  payable  at  the  end  of  the  year  or  other 
certain  period  of  time,  be  determined  by  the  death  of  any  person 
during  one  of  the  periods  in  which  the  rent  was  growing  due,  the 
lessor  or  his  personal  representative  may  recover  a  part  of  the 
rent  which  becomes  due  after  the  death,  proportionate  to  the  part 
of  the  period  elapsed  before  the  death,  subject  to  all  just  allow- 
ances; and  if  any  security  shall  have  been  given  for  such  rent  it 
shall  be  apportioned  in  like  manner. 
Code,  s.  1747;  1868-9,  c.  156,  s.  6. 

1988.  Rents  and  charges  apportioned  to  successive  owners. 

In  all  cases  where  rents,  rent  charges,  annuities,  |)ensi(ins,  divi- 
dends, or  any  other  payments  of  any  description,  are  made  payable 
at  fixe(l  periods  to  successive  o'wmers  under  any  instrument,  or 
by  any  will,  and  where  the  right  of  any  owner  to  receive  pa^Tiiont 
is  terminable  by  a  death  or  other  uncertain  event,  and  where  such 
riglit  sliall  so  terminate  during  a  period  in  wliich  a  payment  is 
growing  due,   tlic  jiayment  becoming  due  next  after  sncli   (cniiina- 


1988  LANDLORD,  ETC.— 77.   The  Lessor.  Ch.  4G 

ting  event,  shall  be  apportioned  among-  the  successive  owners  accord- 
ing to  the  parts  of  snch  periods  elapsing  before  and  after  the  termi- 
nating event. 

Code,  s.  1748;   1868-9,  c.  156,  s.  7. 

1989.  Grantees  of  reversion,  same  rights  and  liabilities  as 

grantors.  The  grantee  in  every  conveyance  of  reversion  in  lands, 
tenements  or  hereditaments,  shall  have  the  like  advantages  and 
remedies  by  action  or  entry  against  the  holders  of  particular  estates 
in  snch  real  property,  and  their  assigns,  for  nonpayment  of  rent, 
and  for  the  nonperformance  of  other  conditions  and  agreements  con- 
tained in  the  instruments  by  the  tenants  of  such  particular  estates^ 
as  the  grantor  or  lessor  or  his  heirs  might  have ;  and  the  holders 
of  such  particular  estates,  and  their  assigns,  shall  have  the  like 
advantages  and  remedies  against  the  grantee  of  the  reversion,  or 
any  part  thereof,  for  any  conditions  and  agreements  contained  in 
such  instruments,  as  they  might  have  had  against  the  grantor  or 
bis  lessors  or  his  heirs. 

Code.  s.   1765;   IVl  Hen.  VIII.,  c.  U;    1868-9,  c.   156,  s.   18. 

III.     The  Lessee. 

1990.  Holds  to  end  of  farming  year.  Where  any  lease  for  years 
of  any  land  let  for  farming  on  which  a  rent  is  reserved  shall  deter- 
mine during  a  current  year  of  the  tenancy,  by  the  happening  of  any 
uncertain  event  determining  the  estate  of  the  lessor,  the  tenant  in 
lieu  of  emblements  shall  continue  his  occupation  to  the  end  of  such 
current  year,  and  shall  then  give  up  such  possession  to  the  succeed- 
ing owner  of  the  land,  and  shall  pay  to  such  succeeding  owner  a 
part  of  the  rent  accrued  since  the  last  payment  became  due,  propor- 
tionate to  the  part  of  the  period  of  payment  elapsing  after  the  termi- 
nation of  the  estate  of  the  lessor,  to  the  giving  up  such  possession, 
and  the  tenant  in  such  case  shall  be  entitled  to  a  reasonable  compen- 
sation for  the  tillage  and  seed  of  any  crop  not  gathered  at  the  expi- 
ration of  such  current  year  from  the  person  succeeding  to  the  pos- 
session. 

Code,  s.   1749;    1868-9,  e.   156,  s.  8. 

1991.  Not  liable  for  accidental  damage.  A  tenant  for  life,  or 

years,  or  for  a  less  term,  shall  not  be  liable  for  damage  occurring 
on  the  demised  premises  accidentally,  and  notwithstanding  reasona- 
ble diligence  on  his  part;  unless  he  so  contract. 

Code,  s.   1751;    1868-9.  c.   156,  s.   10. 

1992.  May  surrender,  building  destroyed  or  damaged.  Tf  a  de- 

mi.scd  house,  or  other  building,   be   destroyed   during  tlic   term,   or 


1992  LANDLORD,  ETC.—///.  The  Lessee.  Ch.  40 

so  much  damaged  that  it  can  not  be  made  reasonably  fit  for  the  pur- 
pose for  which  it  was  hired,  except  at  an  expense  exceeding  one 
year's  rent  of  the  premises,  and  the  damage  occvir  without  negligence 
on  the  part  of  the  lessee  or  his  agents  or  servants,  and  there  be  in 
the  lease  no  agTcement  respecting  repairs,  or  providing  for  such  a 
case,  and  the  use  of  the  house  damaged  was  the  main  inducement 
to  the  hiring,  the  lessee  may  surrender  his  estate  in  the  demised 
premises  by  a  M'riting  to  that  effect  delivered  or  tendered  to  the 
landlord  within  ten  daj's  from  the  damage,  and  by  paj'ing  or  ten- 
dering at  the  same  time  all  rent  in  arrear,  and  a  part  of  the  rent 
growing  due  at  the  time  of  the  damage,  projiortionate  to  the  time 
between  the  last  period  of  payment  and  the  occurrence  of  the  dam- 
age, and  the  les.see  shall  be  thenceforth  discharged  from  all  rent 
accruing  afterwards ;  but  not  from  any  other  agreement  in  the 
lease.  This  section  shall  not  apply  if  a  contrary  intention  appear 
from  the  lease. 
Code,  s.  1753;   1868-9,  e.  156,  s.  12. 

IV.     Ageiculturai.  Tkxaxcies. 

1993.  Landlord's  lien,  crop  vested  in,  to  secure,  how  enforced. 

When  lands  shall  be  rented  or  leased  by  agreement,  written  or  oral, 
for  agricultural  purposes,  or  shall  be  cultivated  by  a  cropper,  unless 
otherwise  agreed  between  the  parties  to  the  lease  or  agreement,  any 
and  all  crops  raised  on  said  lauds  shall  be  deemed  and  held  to  be 
vested  in  possession  of  the  lessor  or  his  assigns  at  all  times,  until  the 
rents  for  said  lands  shall  be  paid  and  until  all  the  stipulations  con- 
tained in  the  lease  or  agreement  shall  be  performed,  or  damages  in 
lieii  thereof  shall  be  paid  to  the  lessor  or  his  assigns,  and  until  said 
party  or  his  assigns  shall  be  paid  for  all  advancements  made  and 
expenses  incurred  in  making  and  saving  said  ci'ops.  This  lien  shall 
be  preferred  to  all  other  liens,  and  the  lessor  or  his  assigns  shall 
be  entitled,  against  the  lessee  or  cropper  or  the  assigns  of  either  who 
shall  I'emove  the  crop  or  any  part  thereof  fi'om  the  lands  without 
the  consent  of  the  lessor  or  his  assigns,  or  against  any  other  pei-son 
who  may  get  possession  of  said  crop  or  any  part  thereof,  to  the 
remedies  given  in  an  action  upon  a  claim  for  the  delivery  of  per- 
sonal property. 

Code,  s.  1754;   1870-7,  f.  28:!. 

1994.  Rights  of  tenant.  Wliencver  the  lessor  or  his  assigns  sluill 
get  the  actual  possession  of  the  crop  or  any  part  thereof  otherwise 
than  by  the  mode  prescribed  in  the  preceding  section,  and  said 
lessor  or  his  assigns  shall  refuse  or  neglect,  upon  a  notice,  written 
or  oral,  of  five  days,  given  by  the  lessee  or  cropjier  m-  tlie  assigns 

604 


l!)9i     LAjSTDLOKD,  etc.— 7T'.  Agricultural  Tenancies.     Ch.  46 

of  either,  to  make  a  fair  division  of  said  crop,  or  to  pay  over  to  such 
lessee  or  cropper  or  the  assigns  of  either,  such  part  thereof  as  he 
may  be  entitled  to  under  the  lease  or  agreement,  then  and  in  that 
case  the  lessee  or  cropper  or  the  assigns  of  either  shall  be  entitled 
against  the  lessor  or  his  assigns  to  the  remedies  given  in  an  action 
upon  a  claim  for  the  delivery  of  personal  property  to  recover  such 
part  of  the  crop  as  he,  in  law  and  according  to  the  lease  or  agree- 
ment, may  be  entitled  to.  The  amount  or  quantity  of  such  crop 
claimed  by  said  lessee  or  cropper  or  the  assigiis  of  either,  together 
with  a  statement  of  the  grounds  upon  which  it  is  claimed,  shall  be 
fully  set  forth  in  an  affidavit  at  the  beginning  of  the  action. 
Code,  s.  1753;  1876-7,  c.  283,  s.  2. 

1995.  Action  on  the  contract;  tenant's  undertaking.  Where  any 

controversy  shall  arise  between  the  parties,  and  neither  party  avails 
himself  of  the  provisions  of  this  chapter,  it  shall  be  competent  for 
either  party  to  proceed  at  once  to  have  the  matter  determined  in  the 
court  of  a  justice  of  the  peace,  if  the  amount  claimed  be  two  hundred 
dollars  or  less,  and  in  the  superior  court  of  the  county  where  the 
property  is  situate  if  the  amount  so  claimed  shall  be  more  than  two 
hundred  dollars.  But  in  case  there  shall  be  a  continuance  or  an 
appeal  from  the  justice's  decision  to  the  superior  court,  the  lessee  or 
cropper,  or  the  assigns  of  either,  shall  be  allowed  to  retain  possession 
of  said  projjerty  upon  his  giving  an  undertaking  to  the  lessor  or  his 
assigns,  or  the  adverse  party,  in  a  sum  double  the  amount  of  the 
claim,  if  such  claim  does  not  amoimt  to  more  than  the  vahie  of  such 
property,  otherwise  to  double  the  value  of  such  property,  with  good 
and  sufficient  surety,  to  be  approved  by  the  justice  of  the  peace  or 
the  clerk  of  the  superior  court,  conditioned  for  the  faithful  payment 
to  the  adverse  party  of  such  damages  as  he  shall  recover  in  said 
action. 
Code,  s.  175G;   1876-7,  c.  283,  s.  3. 

1996.  Crops  delivered  to  landlord;  undertaking.  In  case  the  les- 
see or  cropper,  or  the  assigns  of  either,  shall,  at  tlie  time  of  the  appeal 
or  continuance  mentioned  in  the  preceding  section,  fail  to  give  the 
undertaking  therein  required,  then  the  constable  or  other  lawful  offi- 
cer shall  deliver  the  property  into  the  actual  possession  of  the  lessor 
or  his  assigns,  upon  the  lessor  or  his  assigns  giving  to  the  adverse 
party  an  undertaking  in  double  the  amount  of  said  property,  to  be 
justified  as  required  in  the  preceding  section,  conditioned  for  the 
forthcoming  of  such  property,  or  the  value  thereof,  in  case  judgment 
shall  be  pronounced  against  him. 

Code,  s.  1757;  1876-7,  c.  283,  s.  4. 


Ut97     LAXDLORI).  ETC.— 71'.  Ac/rlcuUural  Tenancies.     Ch.  4t; 

1997.  If  neither  gives  undertaking,  crops  sold.  If  neither  party 

i^ives  the  undertaking  described  in  tlie  two  jireeeding'  sections,  it  shall 
be  the  duty  of  the  justice  of  the  peace  or  the  clerk  of  the  sujicrior 
court,  to  issue  an  order  to  the  constable  or  sheriff,  or  other  lawful  ofli- 
cer,  directing  him  to  take  into  his  possession  all  of  said  property,  or 
so  much  thereof  as  shall  be  necessary  to  satisfy  the  claimant's  demand 
and  costs,  and  to  sell  the  same  imder  the  rules  and  regulations  pre- 
scribed by  law  for  the  sale  of  personal  property  under  execution,  and 
to  hold  the  proceeds  thereof  subject  to  the  decision  of  the  court  iipon 
the  issue  or  issues  pending  between  the  parties. 
Code,  s.  1758;   1876-7,  e.  283,  s.  5. 

1998.  Tenant's  crop  not  subject  to  execution  against  landlord. 

Whenever  servants  and  laborers  in  agriculture  shall  by  their  con- 
tracts orally  or  in  writing  be  entitled,  for  wages,  to  a  part  of  the 
crops  cultivated  by  them,  such  part  shall  not  be  subject  to  sale  under 
executions  against  their  employers,  or  the  owners  of  the  land  culti- 
vated. 
Code,  s.  1790. 

1999.  Turpentine  and  lightwood  leases.  This  chapter  shall  apply 

to  all  leases  or  contracts  to  lease  turpentine  trees,  or  use  lightwood 
for  i^urposes  of  making  tar,  and  the  parties  thereto  shall  be  fully  sub- 
ject to  the  provisions  and  penalties  of  this  chapter. 
Code.  s.   1762;   1803,  c.  .517;   1870-7,  c.  283,  s.  7. 

2000.  Mining  and  timber  land  leases.  If  in  a  lease  of  land  for 

mining,  or  of  timbered  land  for  the  purpose  of  man\ifacturing  the 
timber  into  goods,  rent  shall  be  I'eserved,  and  if  it  shall  be  agreed  in 
the  lease  that  the  minerals,  timber  or  goods,  or  any  portion  thereof, 
shall  not  be  removed  until  the  payment  of  the  rent,  in  such  case  the 
lessor  shall  have  the  rights  and  be  entitled  to  the  remedy  given  by 
this  chapter. 

Code.  s.   1763:   1S08-9,  c.   l.'jO,  s.   10. 

V.       SUMMAKY  EJECT^^E^'T. 

2001.  Tenant  dispossessed,  when.  Any  tenant  or  lessee  of  any 
house  or  land,  and  the  assigns  \uider  the  tenant  or  legal  representa- 
tives of  such  tenant  or  lessee,  who  shall  hold  over  and  continue  in 
the  possession  of  the  demi.sed  premises,  oi;  any  part  thereof,  M'ithout 
the  permission  of  the  landlord,  and  after  demand  made  for  its  sur- 
render, may  be  removed  from  such  premises  in  the  manner  herein- 
after ])rescribed  in  either  of  the  following  cases: 

1.  Whenever  a  tenant  in  possession  of  real  estate  holds  over  after 
his  term  has  expired. 

006 


iMiOl        LANDLORD,  ETC.— T'.  Summary  Ejectmeid.        Ch.  4G 

2.  When  the  tenant  or  lessee,  or  other  person  binder  him,  has  done 
"1-  omitted  any  act  by  which,  according  to  the  stipulations  of  the 
li'ase,  his  estate  has  ceased. 

3.  When  any  tenant  or  lessee  of  lands  or  tenements,  being  in 
arrear  for  rent,  or  having  agreed  to  cultivate  the  demised  premises 
and  to  25ay  a  part  of  the  crop  to  be  made  thereon  as  rent,  or  who 
shall  have  given  to  the  lessor  a  lien  on  such  crop  as  a  security  for  the 
rent,  shall  desert  the  demised  premises,  and  leave  them  unoccupied 
and  uncultivated. 

4.  Whenever  any  tenant  or  cropper  shall  enter  into  a  contract  for 
the  rental  of  land  for  the  current  or  ensuing  year,  and  without  just 
cause  wilfully  neglects  or  refuses  to  perform  the  terms  of  his  con- 
tract, then  such  tenant  or  cropper  shall  forfeit  his  right  of  possession 
to  the  premises.  This  subsection  shall  only  apply  in  the  counties  of 
Wake,  Hyde,  Anson,  Llertford,  Sampson,  Franklin,  Union,  Wayne, 
Lenoir,  Greene,  Johnston,  Jones,  Onslow,  Craven,  Cleveland,  Samp- 
son, Pitt,  Duplin,  Gates,  Cumberland,  Perquimans,  Chowan,  Robe- 
son, Bladen,  Nash,  Harnett,  Edgecombe,  Wilson,  Rockingham,  Pen- 
der, Currituck,  Gaston,  Northampton,  Beaiifort,  Chatham,  Tyrrell, 
Mecklenburg,  Halifax,  Caswell,  Camden,  Cabarrus,  Columbus,  Mar- 
tin, Montgomery  and  Washington. 

Code,  ss.  1766,  1777;  4  Geo.  II.,  e.  28;  1868-9,  c.  156,  s.  19;  1905,  cc.  297,  299, 


2002.  Summons  issues  by  justice  on  verified  complaint.  When 

the  lessor  or  his  assigiis,  or  his  or  their  agent  or  attorney,  shall  make 
oath  in  writing,  before  any  justice  of  the  peace  of  the  county  in  which 
the  demised  premises  are  situated,  stating  such  facts  as  constitute  one 
of  the  cases  above  described,  and  describing  the  premises  and  asking 
to  be  put  in  possession  thereof,  the  justice  shall  issue  a  summons  recit- 
ing the  substance  of  the  oath,  and  requiring  the  defendant  to  appear 
before  him  or  some  other  justice  of  the  county,  at  a  certain  place  and 
time  (not  to  exceed  five  days  from  the  issuing  of  the  summons,  with- 
out the  consent  of  the  plaintiff  or  his  agent  or  attorney),  to  answer 
the  complaint.  The  plaintiff  or  his  agent  or  attoi'ney  may  in  his 
oath  claim  rent  in  arrear,  and  damage  for  the  occupation  of  the 
premises  since  the  cessation  of  the  estate  of  the  lessee:  Provided, 
the  sum  claimed  shall  not  exceed  two  hundred  dollars;  but  if  he 
shall  omit  to  make  such  claim,  he  shall  not  be  thereby  prejudiced 
in  any  other  action  for  their  recovery. 
Code,  s.  1767:   1868-9,  c.  156,  s.  20;   1869-70,  c.  212. 

2003.  Service  of  summons.  The  officer  receiving  such  summons 
shall  inunediately  serve  it  by  the  delivery  of  a  copy  to  the  defendant 
or  by  leaving  a  copy  at  his  usual  or  last  place  of  residence,  with 


200;l         \.\SY)Umi),ETC.—Y.  Sitmumr,,  Ejectment.         Cli.   -\r, 

some  adult  person,  if  any  such  be  found  there;  or,  if  the  detciidaut 
have  no  usual  place  of  residence  in  the  county  and  can  not  be  foxnid 
therein,  by  fixing  a  copy  on  some  conspicuous  part  of  the  ])remises 
claimed. 

Code,  s.   17GS;   18GS-9,  c.   156,  s.  21. 

2004.  Judgment  by  default  or  confession.   The  suuuuons  shall 

be  returned  according  to  its  tenor,  and  if  on  its  return  it  shall 
appear  to  have  been  duly  served,  and  if  the  defendant  shall  fail 
to  appear  or  shall  admit  the  allegations  of  the  complaint,  the  jus- 
tice shall  give  judgment  that  the  defendant  be  removed  from,  and 
the  plaintiff  be  put  in  possession  of,  the  demised  premises;  and  if 
any  rent  or  damages  for  the  occupation  of  the  premises  after  tli(> 
cessation  of  the  estate  of  the  lessee,  not  exceeding  two  hundred  dol- 
lars, be  claimed  in  the  oath  of  the  plaintiff  as  due  and  unpaid,  the 
justice  shall  inquire  thereof,  and  give  judgment  as  he  may  find  tin- 
fact  to  be. 

Code,  s.   1769,  e.   156,  s.  22. 

2005.  Trial  by  justice;  jury  trial;  judgment;  execution.   If  the 

defendant  by  his  answer  .shall  deny  any  material  allegation  in  the 
oath  of  the  plaintiff,  the  justice  shall  hear  the  evidence  and  give 
judgment  as  he  shall  find  the  facts  to  be.  If  either  party  shall 
demand  a  trial  by  jury,  it  shall  be  granted  under  the  rules  pre- 
scribed by  law  for  other  trials  by  jury  before  a  justice;  and  if  the 
jury  shall  find  that  the  allegation  in  the  plaintiff's  oath,  which  enti- 
tles him  to  be  put  in  possession,  is  true,  the  justice  shall  give  judg- 
ment that  the  defendant  be  removed  from  and  the  plaintiff  put 
in  possession  of  the  demised  premises,  and  also  for  such  rent  and 
damages  as  shall  have  been  assessed  by  the  jury  and  for  costs ;  and 
shall  issue  his  execution  to  carry  the  judgment  into  effect. 
Code,  s.  1770;   1868-9,  e.  156,  s.  23. 

2006.  Damages  assessed  to  time  of  trial.   On  appeal  to  the 

superior  court,  the  jury  trying  the  issue  joined  shall  as.sess  the 
damages  of  the  plaintiff  for  the  detention  of  his  possession  to  the 
time  of  the  trial  in  that  court,  and  judgment  for  the  rent  in  arrear 
and  for  the  damages  as.sessed  may,  on  motion,  be  rendered  against 
the  sureties  to  the  appeal. 

Code,  s.   1775;   1868-9,  c.   156,  s.  28. 

2007.  Rent  and  cost  tendered  by  tenant.    If,  in  any  action 

brought  to  recover  the  possession  of  demi.sed  premises  upon  a  foi'- 
feiture  for  the  nonpayment  of  rent,  the  tenant,  before  judgment 
given  in  such  action,  shall  pay  or  tender  the  rent  due  and  the  costs, 
of  the  action,   all   further  proceedings   in   such    action    -<li:ill   cease; 


I 


L'dOT        LAIsTDLORD,  ETC.— F.  Summary  Ejedmeni.        Cla.  46 

Ml-  if  the  plaintiff  shall  further  prosecute  his  action,  and  the  defend- 
ant shall  pay  into  court  for  the  use  of  the  plaintiff  a  sum  equal  to 
that  which  shall  be  found  to  be  due,  and  the  costs,  to  the  time  of 
-uch  payment,  or  to  the  time  of  a  tender  and  refusal,  if  one  has 
Dccurred,  the  defendant  shall  recover  from  the  plaintiff  all  subse- 
quent costs ;  the  plaintiff  shall  be  allowed  to  receive  the  sum  paid 
into  court  for  his  use,  and  the  proceedings  shall  be  stayed. 
Code,  s.  1773;  4  Geo.  II.,  c.  28,  s.  4;  1868-9,  c.  156,  s.  26. 

2008.  Appeal;  undertaking  on;  increase  of.  Either  party  may 

appeal  from  the  judi^iuent  of  the  justice,  as  is  prescribed  in  other 
cases  of  appeal  from  the  judgment  of  a  justice;  but  no  execution 
commanding  the  I'emoval  of  a  defendant  from  the  possession  of  the 
demised  premises  shall  be  suspended  until  the  defendant  shall  have 
given  an  undertaking  in  an  amount  not  less  than  one  year's  rent  of 
the  premises,  with  sufficient  surety,  who  shall  justify  and  be  ap- 
proved by  the  justice,  to  be  void  if  the  defendant  shall  pay  any 
judgment  which  in  that  or  any  other  action  the  plaintiff  may  recover 
for  rent,  and  for  damages  for  the  detention  of  the  land.  At  any 
term  of  the  superior  court  of  the  county  in  which  such  appeal  is 
docketed  after  the  lapse  of  one  year  from  the  date  of  the  filing  of 
the  undertaking  above  mentioned,  the  tenant,  after  legal  notice  to 
that  end  has  been  duly  executed  on  him,  may  be  required  to  show 
cause  why  said  undertaking  should  not  be  increased  to  an  amount 
sufficient  to  cover  rents  and  damages  for  such  period  as  to  the  court 
may  seem  proper,  and  if  such  tenant  shall  fail  to  show  proper  cause 
and  shall  not  file  such  bond  for  rents  and  damages  as  the  court  may 
direct,  or  make  affidavit  that  he  is  unable  so  to  do  and  show  merits, 
his  appeal  shall  be  dismissed  and  the  judgment  of  the  justice  of  the 
peace  shall  be  affirmed. 

Code,  s.  1772;   1868-9,  c.  1.56.  s.  25;   ISS.S,  e.  316. 

2009.  Restitution,  when.  If  the  proceedings  before  the  justice 
shall  be  brought  before  a  superior  court  and  quashed,  or  judgment 
be  given  against  the  plaintiff,  the  superior  or  other  court  in  which 
final  judgment  shall  be  given,  shall,  if  necessary,  restore  the  defend- 
ant to  the  possession,  and  issue  such  writs  as  shall  be  proper  for 
that  purpose. 

Code,  s.  1774;   1868-9,  e.   156,  s.  27. 

2010.  Damages  to  tenant  for  wrongful  removal.  If,  by  order 

of  the  justice,  the  plaintiff  shall  be  put  in  possession,  and  the  pro- 
ceedings shall  afterwards  be  quashed  or  reversed,  the  defendant  may 
recover  damages  of  the  plaintiff  for  his  removal. 

Code,  s.  1776;   1868-9.  c.   156,  -;.  .30. 

Rev.  Vol,  1—35  609 


2011  LAXDLOKD,  ETC.— "17.  Forms.  '      Ch.  4(5 

VI.     FoKj[s. 

2011.   Forms    sufficient.   The  following  forms,   or  substantially 
similar,  shall  be  sufficient  in  all  proceedings  under  this  chapter: 

OATH   OF   PLAINTIFF. 


North  Carolina County. 

A.  B.,  plaintiff,    i 

against  [•Summary  proceedings  in  ejectment. 

C.  D.,  defendant,  j 

The  plaintitT  (his  ag(;nt  or  attorney)  maketh  oath  that  (he  defendant  entered 
into  the  possession  of  a  piece  of  land  in  said  county  (describe  the  land)  as  a 
lessee  of  the  plaintiff  (or  as  lessee  of  E.  F.,  who,  after  the  making  of  the  lease, 
assigned  his  estate  to  the  plaintiff,  or  otherwise,  as  the  fact  may  be)  ;   that  the 

term  of  the  defendant  expired  on  the.  .  .  .day  of 19. .  .  .    (or  that  his 

estate  has  ceased  by  nonpayment  of  rent,  or  otherwise,  as  the  fact  may  be); 
that  the  plaintiff  has  demanded  the  possession  of  the  premises  of  the  defendant, 
who  refused  to  surrender  it,  but  holds  over;  that  the  estate  of  the  plaintiff  is 
still  subsisting,  and  the  plaintiff  asks  to  be  put  in  possession  of  the  premises. 

The  plaintiff  claims dollars  for  rent  of  the  premises  from  the.  ..  .day 

of 19....    to  the.... day  of 10....,  and  also 

dollars  for  the  occupation  of  the  premises  since  the.  .  .  .day  of 19.  .  .  . 

to  the  date  hereof. 

A.  B.,  plaintiff. 

Subscribed  and  sworn  to  before  me,  this.  .  .  .day  of 10,  .  ,  . 

J.  K.,  J.  P. 

SUMMONS. 

North  Carolina,   County. 

A.  B.,  plaintiff,   i 

against  I  Summary  proceedings  in  ejectment. 

C.  D.,  defendant.  ) 

A.  B.   (his  agent  or  attorney)  having  made  and  subscribed  before  me  tlie  oath. 

a  copy  of  which  is  anne.xed,  you  are  required  to  appear  before  me  on  the 

day  of  19.  .,  at ,  then  and  there  to  answer  the  com- 
plaint; otherwise  judgment  will  be  given  that  you  be  removed  from  the  possession 
of  the  premises. 

Witness  my  hand  and  seal  this.  .  .  .day  of ,  10.  . 

J.   K.,  .1,   P.    (Seal;. 
To  C.  D.,  defendant. 

The  justice  attaches  the  oath  of  the  plaintiff  to  the  summons  and 
delivers  them,  and  a  copy  of  both  of  them,  to  the  officer,  and  makes 
the  following  entry  on  his  docket,  or  varies  it  according  to  the  facts. 

DOCKET  ENTRIES. 
A.  B.,  plaintiff,   \ 

against  ■  Sinumarv  proceedings  in  ejectment  for  (describe  the  promises) . 

C.  D.,  defendant.  ) 

Oath  of  plaintiff    (his  agent  or  attorney)    filed  on  the.  .  .   ilav  of 

19 

Plaintiff   claims dollars    for   rent    from to ,    and 

dollars  for  occupation  from to 

Summons  issued  the day  of ,   19.  .  .  .,  to ,   conylable 

(or  sheriff,  as  the  case  nuiv  be). 

610 


I'D  11  LANDLORD,  ETC.— F/.  Forms.  Ch.  46 

The  officer  serves  the  summons  and  returns  it  to  the  justice  with 
the  oath  of  the  plaintiff,  and  with  his  return  indorsed: 

.    RETURN  OF  OFFICER. 

On  this  day  I  served  the  within  summons  on  the  defendant,  C.  D.,  by  delivering 
him  a  copy  thereof,  and  of  the  oath  of  A.  B.,  annexed  (or  by  leaving  a  copy 
thereof  and  the  oath  of  A.  B.  at  the  usual  place  of  residence  of  the  defendant 
C.  D.,  with  an  adult  found  there)  (or  the  said  C.  D.  not  being  found  in  my 
county,  and  having  no  usual  or  last  place  of  residence  therein)  (or  no  adult 
person  being  found  at  his  usual  or  last  place  of  residence,  by  posting  a  copy 
of  the  summons  and  of  the  oath  of  A.  B.,  annexed,  on  a  conspicuous  part  of  the 
premises  claimed). 

N.   M.,   Constable. 

The day  of 19 

RECORD  TO  BE  ENTERED  ON  DOCKET. 

A.  B.,  plaintiff,   1 

against  I  Summary  proceedings  in  ejectment. 

C.  D.,  defendant.  J 

It  appearing  that  the  summons,  with  a  copy  of  the  oath  of  the  plaintiff  (his 
agent  or  attorney),  was  duly  served  on  defendant,*  and  whereas,  the  defendant 
fails  to  appear  (or  admits  the  allegations  of  the  plaintiff),  I  adjudge  that  the 
defendant  be  removed  from  and  the  plaintiff  put  in  possession  of  the  premises 
described  in  the  oath  of  the  plaintiff.     I  also  adjudge  that  the  plaintiff  recover  of 

defendant dollars   for   rent   from  the day   of 19  ...  . 

to   the day   of ,    19.  .  .  .,   and dollars    for    damages    for 

occupation  of  the  premises  from  the day  of ,  19 .... ,  to  this 

day,  and dollars  for  his  costs;   the day   of 19.  .  .  . 

If  the  defendant  admit  part  of  the  allegations  of  plaintiff",  but  not 
all,  the  judgment  must  be  varied  accordingly;  for  example:  follow 
the  foregoing  to  the  asterisk  (*),  and  then  proceed: 

And  whereas  the  defendant  appears  and  admits  the  first  and  second  allegations 
of  the  plaintiff,  and  denies  the  residue;  and  whereas,  both  parties  waived  a  trial 
by  jury,  I  heard  evidence  upon  the  matters  in  issue,  and  find  (here  state  the 
findings  on  the  matters  in  issue  separately). 

Supposing  the  findings  are  for  the  plaintiff,  the  record  would  pro- 
ceed: 

I  therefore  adjudge  that  the  defendant   (and  so  on  from  the  asterisk   (*). 

If  either  party  shall  demand  a  jury  the  record  will  proceed  from 
the  asterisk  (*),  as  follows: 

And  whereas,  the  plaintiff  (or  defendant,  as  the  case  may  be)  demanded  a  trial 
of  the  issues  joined  by  a  jury,  I  caused  a  jury  to  be  summoned,  to-wit:  (here 
give  the  names  of  the  jurors  summoned)  from  whom  the  following  jury  was  duly 
impaneled,  to-wit:  (here  state  the  names  of  the  six  jurors  impaneled),  who 
find  (here  state  the  verdict  of  jury;  if  they  find  all  the  issues  for  the  plaintiff, 
say  so;  if  any  particular  issues,  say  so;  also  .state  the  sums  assessed  by  them 
for  rent  and  for  occupation  to  trial).  Therefore,  I  adjudge,  etc.  (as  in  form 
No.  5,  from  asterisk  (*). 

611 


2011  LAXDLOED,  ETC.— T'/.  Forms.  Ch.  40 

If  either  party  appeals,  the  justice  will  enter  on   his  docket   as 
follows,  altering  the  entry  according  to  the  facts: 

*  RECORD  OF  APPEAL. 

From  the  foregoing  judgment  the  plaintiff  (or  defendant,  as  the  case  may  be) 
prayed  an  appeal  to  the  next  superior  court  of  said  county,  which  is  allowed. 

EXECUTION  ON  JUDGMENT  FOR   PLAINTIFF. 

A.  B.,  plaintiff',    I 

against  [■ County. 

C.  D..  defendant.  I 

The  State  of  North  Carolina,  to  any  lawful  officer  of  said  county — Greeting: 

You  are  hereby  commanded  to  remove  C.  D.  from,  and  put  A.  B.  in,  the  posses- 
sion of  a  certain  piece  of  land  (here  describe  it  as  in  the  oath  of  plaintiff').  You 
shall  also  make  out  the  goods  and  chattels,  lands  and  tenements,  of  said  defend- 
ant    dollars,  with  interest  from  the   day  of   ,  10.  .  . 

to  the  day  of  payment,  which  the  plalntiflF  lately  recovered  of  the  defendant  as 

rent  and  damages,  and  the  further  sura  of dollars  as  costs,  in  said  action. 

Return  this  writ,  with  a  statement  of  your  proceedings  thereon,  before  me   (state 
when  and  where  according  to  general  law  respecting  justices'  executions). 

Witness  my  hand  and  seal,  this day  of 19.  .  .  . 

(Seal.) 

BOND  TO  STAY  EXECUTION. 

We,  the  undersigned,    and    ,   acknowledge 

ourselves  indebted  to   in  the  sum  of dollars: 

Witness  our  hands  and  seals,  this  the daj'  of A.  D.  19.  .  .  . 

Whereas  on  the day  of ,  A.   D.   19.  .  .  .,  before 

a  justice  of  the  peace  for county,  A.  B.  recovered  a  judgment  against 

C.   D.   for and   for    dollars  damages   for  the  detention 

of  said  real  estate  from  the   day  of ,  A.  D.  19.  .  .  .,  to  the 

day  of ,  A.  D.  19. ...  ;   and  whereas,  the  said ha.  .  .  . 

prayed  an  appeal  to  the  superior  court  from  said  judgment,  and  also  asks  that 
execution   on   said   judgment    shall   be   suspended :      Now,   therefore,   if   the   said 

shall  pay  any  judgment,  which,  in  this  or  in  any  other  action, 

the   said may   recover   for   the   rent   of    said    premises,   and 

for  damages  for  detention  thereof,  then  this  obligation  shall  be  void,  otherwise 
to  remain  in  full  force  and  virtue. 

(Seal.) 

(Seal.) 

(Seal.) 

STAY  OF  EXECUTION. 

The  State  of  North  Carolina,  to  any  officer  having  an  execution  in  favor  of 
A.  B.,  plaintiff',  v.  C.  D.,  defendant,  in  a  summary  proceeding  in  ejectment, 
signed  by ,  a  justice  of  the  peace. 

The  defendant  having  given  bond  to  me,  as  required  by  law,   on  his  appeal 

to    the    superior    court    of county,    in    the    above    case,    you    will    stay 

further   proceedings   upon   said   execution   and   immediately   return   the   same   to 
me,  with   a  statement  of  your  action  under  it. 

Witness  my  hand  and  seal  this day  of ,  19.  .  .  . 

.J.  P.      (Seal.) 


<i 


fil-2 


2011  LANDLOKD,  ETC.— VI.  Forms.  Ch.  46 

CERTIFICATE  ON  RETURN  OF  APPEAL. 

The  annexed  are  the  original  oath,  summons  and  other  papers,  and  a  copy  of 
the  record  of  the  proceedings  in  the  ease  of  a  summary  proceeding  in  ejectment, 
A.  B.,  plaintiff,  v.  C.  D.,  defendant. 

,  J.  P.      (Seal.) 

(Here  state  all  the  costs,  to  whom  paid  or  due,  and  by  whom.) 

(All  the  papers  must  be  attached.) 

Code,  s.  1780. 


Note.     For  conveyance  of  rent  without  attornment,  see  s.  947. 
For  penalty  for  removing  crop  without  payment  of  rent,  see  Crimes. 
For  penalty  for  unlawful  seizure  of  crops  by  landlord,  see  Crimes. 
For  penalty  upon  tenant  for  surrendering  possession  to  one  not  landlord,  see 
Crimes. 

For  injury  to  property  by  tenant,  see  Crimes. 

For  requirement  of  leases  in  writing,  see  s.  976. 

For  proceedings  before  justices,  see  Courts — Justices'. 

For  jury  trial  in  summary  ejectment,  see  Courts — Justices'. 

For  costs,  see  Costs. 


CHAPTER  47. 
LIBEL  AND  SLANDER. 

(Sections  2012— 2015.) 

2012.  Notice  to  newspaper  before  action.  Before  any  action, 

either  civil  or  criminal,  .shall  be  brought  for  the  publication,  in  a 
newspaper  or  periodical,  of  a  libel,  the  plaintiff  or  prosecutor  shall 
at  least  five  days  before  instituting  such  action  serve  notice  in  writ- 
ing on  the  defendant  specifying  the  article  and  the  statements  therein 
which  he  alleges  to  be  false  and  defamatory. 

1901,  c.  5.57. 

2013.  Good  faith  and  correction,  actual  damages  recovered; 

nominal  fine.  If  it  shall  appear  upon  the  trial  that  said  article  was 
published  in  good  faith,  that  its  falsity  was  due  to  an  honest  mis- 
take of  the  facts,  and  that  there  were  reasonable  gTounds  for  believ- 
ing that  the  statements  in  said  article  were  true,  and  that  within 
ten  days  after  the  service  of  said  notice  a  full  and  fair  correction, 
apology  and  retraction  was  published  in  the  same  editions  or  cor- 
responding issues  of  the  newspaper  or  periodical  in  which  said  arti- 
cle appeared,  and  in  as  conspicuous  place  and  type  as  was  said 
original  article,  then  the  plaintiff  in  such  case,  if  a  civil  action,  shall 
recover  only  actual  damages,  and  if,  in  a  criminal  proceeding,  a 


2013  LIBEL  AXD  SLAXDEE.  Cli.  47 

verdict  of  "giiilty"  shall  be  rendered  on  such  a  state  of  facts,  the 
defendant  shall  be  fined  a  penny  and  the  costs,  and  no  more:  Pro- 
vided, that  this  chapter  shall  not  apply  to  actions  pending  on  the 
thirteenth  day  of  March,  one  thousand  nine  hundred  and  one. 
1901,  c.  557. 

2014.  Anonymous  communications.  The  two  preceding  sections 
shall  not  apph'  to  anon%nnons  communications  and  publications. 

1901,  c.  557,  s.  3. 

2015.  Slander  of  women.  Whereas,  doubts  have  arisen  whether 
actions  of  slander  can  be  maintained  against  persons  who  may 
attempt,  in  a  wanton  and  malicious  manner,  to  destroy  the  rei^uta- 
tion  of  innocent  and  unprotected  Avomen,  whose  very  existence  in 
society  dejDends  upon  the  unsullied  purity  of  their  charaeter,  there- 
fore any  words  wa'itten  or  spoken  of  a  woman,  which  may  amount 
to  a  charge  of  incontinency,  shall  be  actionable. 

Code,  s.  3763;  R.  C,  e.  106;  1808,  c.  478. 


Note.     For  pleading  in  actions  for  libel,  see  ss.  501,  502. 
For  statute  of  limitations,  see  Civil  Procedure,  ss.  397,  398. 
For  indictment  for  slander  of  women,  see  s.  3640. 
For  recovery  of  costs,  see  s.  1264. 


CHAPTER  48. 
LIENS. 

Sections. 
I.     Labor  and  materials,  2016—2018 

II.     Subcontractors,  2019—2023 

III.  On  colts  and  calves,  2024—2025 

IV.  Proceedings  to  enforce,  2026—2031 
V.     Rights  of  defendant,  2032—2033 

VI.  Priorities,  2034—2036 

VII.  Hotels,  2037—2039 

VIII.  On  vessels,  2040—2051 

IX.  Agricultural  liens,  2052 — 2057 

I.     L.\B()K  AND  Materials. 

2016.  On  buildings  and  other  property.  Every  building  built, 

rebuilt,  rc]iair(Hl  or  im]ii'()\-o(l,  tugctlicr  with  the  necessary  lots  on 
which  such  lauilding  may  be  situated,  and  every  lot,  farm  or  vessel, 
or  any  kind  of  property,  real  or  personal,  not  herein  enumerated. 


2016  LIENS — I.  Labor  and  Materials.  Cli.  48 

shall  be  subject  to  a  lieu  for  the  payment  of  all  debts  contracted 
for  work  done  on  the  same,  or  material  furnished.  This  section 
shall  applj'  to  the  property  of  married  women  when  it  shall  appear 
that  such  building  was  built  or  repaired  on  her  land  with  her  con- 
sent or  procurement,  and  in  such  case  she  shall  be  deemed  to  have 
contracted  for  such  improvements. 

Code,  s.  17S1;   1901,  c.  G17;   1809-70,  c.  200,,  s.  1. 

2017.  Personal  property  repaired.  Any  mechanic  or  artisan 
■who  shall  make,  alter  or  repair  any  article  of  personal  property  at 
the  request  of  the  owner  or  legal  possessor  of  such  property,  shall 
liave  a  lien  on  such  property  so  made,  altered  or  repaired  for  his 
just  and  reasonable  chai'ge  for  his  work  done  and  material  furnished, 
and  may  hold  and  retain  possession  of  the  same  until  such  just  and 
reasonable  charges  shall  be  paid ;  and  if  not  paid  for  within  the 
space  of  thirty  days,  provided  it  does  not  exceed  fifty  dollars,  if  over 
fifty  dollars  ninety  days,  after  the  work  shall  have  been  done,  such 
mechanic  or  artisan  may  iDroceed  to  sell  the  property  so  made, 
altered  or  repaired  at  public  auction,  by  giving  two  weeks'  public 
notice  of  such  sale  by  advertising  in  some  newspaper  in  the  county 
in  which  the  work  may  have  been  done,  or  if  there  be  no  such  news- 
paper, then  by  posting  up  notice  of  such  sale  in  three  of  the  most 
public  places  in  the  county,  town  or  city  in  which  the  work  may 
have  been  done,  and  the  proceeds  of  the  said  sale  shall  be  applied 
first  to  the  discharge  of  the  said  lien  and  the  expenses  and  costs  of 
keeping  and  selling  such  property,  and  the  remainder,  if  any,  shall 
be  paid  over  to  the  owner  thereof. 

Code,  s.  1783;  1869-70,  c.  206,  s.  3. 

2018.  Constructing  railroad;  claims  collected;  time  for  action. 

As  often  as  any  contractor  for  the  construction  of  any  part  of  a  rail- 
road which  is  in  progress  of  construction  shall  be  indebted  to  any 
laborer  for  thirty  or  less  number  of  days'  labor  performed  in  con- 
structing said  road,  such  laborer  may  give  notice  of  such  indebted- 
ness to  said  company  in  the  manner  herein  jsrovided,  and  said  com- 
pany shall  thereupon  become  liable  to  pay  such  laborer  the  amount 
so  due  him  for  such  labor,  and  an  action  may  be  maintained  against 
said  company  therefor.  Such  notice  shall  be  given  by  said  laborer 
to  said  company  within  twenty  days  after  the  performance  of  the 
number  of  days'  labor  for  which  the  claim  is  made.  Such  notice 
shall  be  in  Avriting,  and  shall  state  the  amount  and  number  of  days' 
labor,  and  the  time  when  the  labor  was  performed  for  which  the 
claim  is  made,  and  the  name  of  the  contractor  from  whom  due,  and 
shall  he  signed  by  such  laborer,  or  his  attorney,  and  shall  be  served 
on  an  engineer,  agent  or  superintendent  employed  by  said  company 


2018  LIEXS— /.  Labor  and  Maierials.  Cb.  iS 

having  charge  of  the  section  of  the  road  on  which  such  labor  was 
performed,  personally,  or  by  leaving  the  same  at  the  office  or  usual 
place  of  business  of  such  engineer,  agent  or  superintendent,  with 
some  person  of  suitable  age.  But  no  action  shall  be  maintained 
against  any  company  under  the  provisions  of  this  section,  unless 
the  same  is  commenced  within  thirty  days  after  notice  is  given  to 
the  company  by  such  laborer  as  above  provided. 

Code,  s.  1942;   1871-2,  c.  138,  s.  12. 

Note.     See  s.  2021. 

II.     Subcontractors. 

2019.  Given  preferred  lien.  All  subcontractors  and  laborers  who 
are  emjjloyed  to  furnish  or  who  do  furnish  material  for  the  build- 
ing, repairing  or  altering  any  bouse  or  other  improvement  on  real 
estate,  shall  have  a  lien  on  said  house  and  real  estate  for  the  amount 
of  such  labor  done  or  material  furnished,  which  lien  shall  be  pre- 
ferred to  the  mechanics'  lien  now  provided  by  law,  when  notice 
thereof  shall  be  given  as  hereinafter  provided,  which  may  be  enforced 
as  provided  for  other  liens  in  this  chapter,  except  where  it  is  othei-- 
wise  pi'ovided:  Provided,  that  the  sum  total  of  all  the  liens  due  sub- 
contractors and  material  men  shall  not  exceed  the  amount  due  the 
original  contractor  at  the  time  of  notice  given. 

Code,  ss.   1801,  180.3;   1880,  e.  44,  ss.  1,  3. 

2020.  Notice  to  owner;  liability  of.  Any  subcontractor,  laborer 
or  material  man,  who  claims  a  lien  as  provided  in  the  preceding  sec- 
tion, may  give  notice  to  the  owner  or  lessee  of  the  real  estate  who 
makes  the  contract  for  such  building  or  improvement  at  any  time 
before  the  settlement  with  the  contractor,  and  if  the  said  owner 
or  lessee  shall  refuse  or  neglect  to  retain  out  of  the  amount  due 
the  said  contractor  under  the  contract  as  much  as  shall  be  due  or 
claimed  by  the  subcontractor,  laborer  or  material  man,  the  subcon- 
tractor, laborer  or  material  man  may  proceed  to  enforce  his  lien, 
and  after  such  notice  is  given,  no  pa^nnent  to  the  contractor  shall 
be  a  credit  on  or  discharge  of  the  lien  lierein  provided. 

Code.  s.  1802;   1880.  c.  44,  s.  2. 

2021.  Contractor  shall  furnish  owner  with  statement  of  in- 
debtedness; subcontractor  may.  Whenever  any  cdutractor,  archi- 
tect or  other  ]icrson  shall  make  a  contract  for  Imilding,  altering  or 
repairing  any  building  or  vessel,  or  for  the  construction  or  repair 
of  a  railroad,  with  the  owner  thereof,  it  shall  be  his  duty  to  furnish 
to  the  owner  or  liis  agent,  before  receiving  any  part  of  tlie  contract 
price,  as  it  may  become  due,  an  itemized  statement  of  the  amount 
owing  to  any  laborer,  mechanic  or  artisan  emploj'ed  by  sxich  con- 


-oi'l  LIEXS— //.  Subcontractors.  Ch.  48 

tractor,  architect  or  other  person,  or  to  any  person  for  materials 
furnished,  and  upon  delivery  to  the  owner  or  his  agent  of  the  item- 
ized statement  aforesaid,  it  shall  be  the  duty  of  the  OAvner  to  retain 
from  the  money  then  due  the  contractor  a  sum  not  exceeding  the 
price  contracted  for,  which  will  be  sufficient  to  pay  such  laborer, 
artisan  or  mechanic  for»  labor  done,  or  such  person  for  material 
furnished,  which  said  amount  the  owner  shall  pay  directly  to  the 
laborer,  mechanic,  artisan  or  person  furnishing  materials.  The 
owner  may  retain  in  his  hands  until  the  contract  is  completed,  such 
sum  as  may  have  been  agreed  on  between  him  and  the  contractor, 
architect  or  other  person  employing  laborers,  as  a  guaranty  for  the 
faithful  performance  of  the  contract  by  such  contractor.  When 
such  contract  has  been  performed  by  the  contractor,  such  fund 
reserved  as  a  guaranty  shall  be  liable  to  the  payment  of  the  sum  due 
the  laborer,  mechanic  or  artisan  for  labor  done,  or  the  person  fur- 
nishing the  materials  as  hereinbefore  provided.  Any  laborer,  me- 
chanic, artisan  or  person  furnishing  materials  may  furnish  to  such 
owner  or  his  agents  before  he  shall  have  paid  the  contractor  an  item- 
ized statement  of  the  amount  owing  to  such  laboi-er,  mechanic  or  arti- 
san employed  by  said  contractor,  architect  or  other  person  for  work  or 
labor  on  such  building,  vessel  or  railroad,  and  any  person  may  fur- 
nish to  such  owner  or  his  agents  an  itemized  statement  of  the  amount 
due  him  for  materials  furnished  for  such  purposes;  and  upon  the  de- 
livery of  such  notice  to  such  owner  or  his  agent  the  person  giving  such 
notice  shall  be  entitled  to  all  the  liens  and  benefits  conferred  by 
this  section  or  by  any  other  law  of  this  state  in  as  full  and  ample  a 
manner  as  though  the  statement  had  been  furnished  by  the  contractor, 
architect  or  such  other  person. 

18S7,  c.  67;  1891,  c.  203;  1899,  c.  335;  1903,  c.  478. 

2022.  Sums  due  by  statement,  a  lien.   The  sums  due  to  the 

laborer,  mechanic  or  artisan  for  labor  done,  or  due  the  person  fur- 
nishing materials,  as  shown  in  the  itemized  statement  rendered  to 
the  owner,  shall  be  a  lien  on  the  building,  vessel  or  railroad  built, 
altered  or  repaired,  without  any  lien  being  filed  before  a  justice 
of  the  peace  or  the  superior  court. 
1887,  c.  67,  s.  2. 

2023.  Claims  paid  pro  rata,  when.  In  the  event  the  amount  due 
the  contractor  by  the  owner  shall  be  insufficient  to  pay  in  full  the 
laborer,  mechanic  or  artisan,  for  his  labor,  and  the  person  furnish- 
ing materials  for  materials  furnished,  it  shall  be  the  duty  of  the 
owner  to  distribute  the  amount  pro  rata  among  the  several  claim- 
ants, as  shown  by  the  itemized  statement  furnished  the  owner. 

1887,  c.  67,  s.  3. 


2024  LIEXS— ///.   On  ('oUs  nnd  Calves.  Ch.   4S 

III.      0.\  Colts  A^'r)  Calves. 

2024.  Season  of  sire  a  lien  on.  In  all  cases  where  the  owner, 
or  any  agent  tVir  or  employee  of  the  owner,  of  any  mare,  jennet  or  cow 
shall  tnrn  the  same  to  a  stud-horse,  jack  or  bull  for  the  purpose  of 
raising  colts  or  calves,  the  price  charged  f»r  the  season  of  the  stud- 
horse, jack  or  bull  shall  constitute  a  lien  on  the  colt  or  calf  until 
the  price  so  charged  for  the  season  is  paid. 

Code,  s.  1707;   1885,  c.  72;   1887,  e.  U;  1872-3.  c.  94,  s.  1. 

2025.  Not  exempt  from  execution.  The  colt  or  calf  shall  not  be 
exempt  from  exec\ition  for  the  payment  of  said  season  price  by 
reason  of  the  operation  of  the  personal  property  exemption :  Pro- 
vided, that  the  person  claiming  such  lien  .shall  institute  action  to 
enforce  the  same  within  twelve  months  from  the  foaling  of  the  colt 
or  dropping  the  calf. 

Code,  s.  1798;   1885,  c.  72:   1872-3,  e.  94,  s.  2;   1879,  c.  47. 

IV.        PUOCEEDIXGS    TO   ENFORCE. 

2026.  Claims  filed,  when.  All  claims  against  personal  property, 
of  two  hundred  dollars  and  under,  may  be  filed  in  the  office  of  the 
nearest  justice  of  the  ]ieace ;  if  over  two  hundred  dollars  or  against 
any  real  estate  or  interest  therein,  in  the  office  of  the  superior  court 
clerk  in  any  county  where  the  labor  has  been  performed  or  the 
materials  furnished ;  but  all  claims  shall  be  filed  in  detail,  specifying 
the  materials  furnished  or  labor  perfoi-med,  and  the  time  thereof. 
If  the  parties  interested  make  a  special  contract  for  such  labor  per- 
formed, or  if  such  material  and  labor  are  specified  in  writing,  in 
such  cases  it  shall  be  decided  agi-eeably  to  the  terms  of  the  contract, 
provided  the  terms  of  such  contract  do  not  afl^ect  the  licMi  im-  such 
labor  performed  or  materials  furnished. 

Code,  s.   1784;   1869-70,  c.  206,  s.  4;   1876-7.  c.   53.   s.   1. 
Note.     For  duty  of  clerk,  records,  etc.,  see  s.  915   (21). 

2027.  Action  brought,  when  and  where.  Action  to  enforce  the 

lien  created  must  be  commenced  in  the  court  of  a  justice  of  the 
peace,  and  in  the  superior  court,  according  to  the  jurisdiction  there- 
of, within  six  months  from  the  date  of  filing  the  notice  of  the  lien: 
Provided,  that  if  the  debt  be  not  due  within  six  months  but  becomes 
due  Avitliin  twelve  months,  suit  may  be  brought  or  other  proceed- 
ings institiited  to  enforce  the  lien  in  thirty  days  after  it  is  due. 

Code,  ss.  1785,  1790;  1868-9,  c.  117,  s.  7;  1869-70,  c.  206,  s.  5;  1876-7,  c.  250;. 
1876-7,  c.  251. 


jn2S  LIE^S— IT.  Proceedings  to  Eiiforce.  Ch.  48 

2028.  Filed  in  twelve  months.  Notice  of  lien  shall  be  filed,  as 
liereinbefore  in'ovided,  at  any  time  within  twelve  months  after  the 
completion  of  the  labor,  or  the  final  furnishing  the  materials,  or  the 
gathering  of  the  crops. 

Code,  s.  17S9;   1868-9,  c.  117,  s.  4;   187G-7,  c.  53,  s.  2;   1881,  c.  65;   1883;,  e.  101. 

2029.  Execution.  Upon  judgment  rendered  in  favor  of  the 
claimant,  an  execution  for  the  collection  and  enforcement  thereof 
shall  issue  in  the  same  manner  as  upon  other  judgments  in  actions 
arising  on  contract  for  the  recovery  of  money  only,  except  that  the 
execution  shall  direct  the  officer  to  sell  the  right,  title  and  interest 
which  the  owner  had  in  the  premises  or  the  crops  thereon,  at  the 
time  of  filing  notice  of  the  lien,  before  such  execution  shall  extend 
to  the  general  jDroperty  of  the  defendant. 

Code,  s.  1791;   1868-9,  e.  117,  s.  9. 

Koto.     For  forms  of  execution,  see  s.  627. 

2030.  No  justice's  execution  against  land.  No  execution  issued 

by   a   justice   of   the   peace,   under   this   chapter,    shall   be   enforced 
against  real  estate  or  any  interest  therein,  but  justices'  judgments 
may  be  docketed  on  the  judgment  docket  of  superior  court  for  the 
purpose  of  selling  such  estate  or  any  interest  there. 
Code,  s.  1794;   1868-9,  e.   117,  s.   13. 

2031.  Attachment,  remedy,  when.  In  all  cases  where  the  owner 
or  employer  attempts  ti)  remove  the  crop,  houses  or  appurtenances 
from  the  premises,  without  the  permission,  or  with  the  intent  to 
defraud  the  lienee  of  his  lien,  the  claimant  may  have  a  remedy  by 
attachment. 

Code,  s.  1795;   1868-9,  e.  117,  s.  14. 

V.     KiGiiTS   OF   Defendant. 

2032.  Setoff  and  counterclaim.  The  defendant  in  any  suit  to 
enforce  the  lien  shall  be  entitled  to  any  setoff  arising  between  the 
contractors  during  the  performance  of  the  contract,  or  counterclaim 
allowed  by  law. 

Code,  s.  1788;   1869-70,  e.  206,  s.  8. 

2033.  How  liens  discharged.    All  liens  created  by  this  chapter 

may  be  discharged  as  follows: 

1.  By  filing  with  the  j,ustice  or  clerk  a  receipt  or  acknowledginent, 
signed  by  the  claimant,  that  the  lien  has  been  paid  or  discharged. 

2.  By  depositing  with  the  justice  or  clerk  money  equal  to  the 
amount  of  the  claim,  which  money  shall  be  held  by  said  officer  for  the 
benefit  of  the  claimant. 

619 


2033    ■  LIEXS— r.  Bights  of  Defendant.  Ch.  48 

3.  By  an  entry  in  the  lien  docket  that  the  action  on  the  part  of 
the  claimant  to  enforce  the  lien  has  been  dismissed,  or  a  judg- 
ment rendered  against  the  claimant  in  such  action. 

4.  By  a  failure  of  the  claimant  to  commence  an  action  for  the 
enforcement  of  the  lien  within  six  months  from  the  notice  of  lien 
filed. 

Code,  s.   1793;    1868-9,  e.   117,   s.    12. 

VI.      Priorities. 

2034.  Laborer's  lien  on  crops.  The  lien  for  work  on  crops  given 
by  this  chapter  shall  be  preferred  to  every  other  lien  or  incumbrance 
which  attached  to  the  crops  subsequent  to  the  time  at  which  the  work 
was  commenced. 

Code,  s.  1782;   1869-70,  c.  206,  s.  2. 

2035.  Date  from  notice  of  lien.  The  liens  created  and  estab- 
lished by  this  chapter  shall  be  paid  and  settled  according  to  the 
priority  of  the  notice  of  the  lien  filed  with  the  justice  or  the  clerk. 

Code,  s.  1792;  1868-9,  e.  117,  s.  11. 

2036.  Rights  not  affected.  JN'othing  in  this  chapter  shall  be 
construed  to  affect  the  rights  of  any  person  to  whom  any  debt  may 
be  due  for  any  work  done  for  which  priority  of  claim  is  filed  with 
the  proper  oflicer. 

Code,   s.    1786;    1869-70,   c.   206,   s.   6. 

VII.     Hotels. 

2037.  May  retain  baggage,  when;  lien  on.  Every  hotel  and 

boarding-house  keeper  wln)  shall  furnish  board,  bed  or  room  to 
any  person  shall  have  the  right  to  retain  possession  of  and  a  lien 
upon  all  baggage  or  other  property  of  such  person  that  may  have 
been  brought  to  such  hotel  or  boarding-house  until  all  reasonable 
charges  for  such  room,  bed  and  board  are  ]iaid. 

1899,  c.  645,  s.  1. 

2038.  Baggage  sold,  when,  if  such  charges  are  not  paid  within 
ten  days  after  they  become  due  then  the  hotel  or  boarding-house 
keeper  is  authorized  to  sell  said  baggage  or  other  property  at  the 
courthouse  door,  after  first  advertising  such  sale  for  ten  days  at  said 
courthouse  door  and  three  other  public  ]daccs  in  the  county,  and 
out  of  the  proceeds  of  sale  to  pay  the  costs  and  e.\pen.ses  of  sale 
and  all  costs  and  charges  duo  for  said  board,  bed  or  room,  and 
the  surplus,  if  any,  pay  to  the  owner  of  said  baggage  or  other  prop- 
erty. 

1899,  c.  645,  s.  2. 

620 


2039  LIEXS— r//.  Hoiels.  Ch.  48 

2039.  Notice  of  sale.  Written  notice  of  such  sale  shall  be  served 
on  the  owner  of  such  Isaggage  or  other  property  ten  days  before  such 
sale,  if  he  be  a  resident  of  the  state,  but  if  he  be  a  nonresident  of 
the  state,  or  if  his  residence  be  unknown,  the  publication  of  such 
notice  for  ten  days  at  the  courthouse  door  and  three  other  public 
places  in  the  county  shall  be  sufficient  service  of  the  same. 

1887,  e.  645,  s.  3. 

VIII.     Oi!^  Vessels. 

2040.  For  towage.  Every  vessel,  boat,  scow,  lighter,  flat,  raft 
or  other  water  craft,  shall  be  subject  to  a  lien  for  the  payment  of 
towage  done  by  any  steamboat  or  tug  boat,  to  be  filed  and  enforced 
as  is  provided  for  other  liens. 

1893,  c.  357. 

2041.  For  labor  in  loading  and  unloading.  Every  vessel,  her 

tackle,  apparel  and  furniture  shall  be  subject  to  a  lien  for  all  labor 
done  by  contractors  or  others  in  loading  or  discharging  the  cargo 
of  such  vessel,  and  also  for  all  labor  done  by  any  subcontractor  or 
laborer  employed  in  discharging  or  loading  any  such  vessel,  when 
such  labor  is  done  under  contract  with  a  contractor  or  stevedore 
Avho  may  be  employed  by  the  master,  agent  or  owner  of  such  ^'pi^- 
sel. 
Code,  s.  1804;   1881,  c.  356,  s.  1. 

2042.  How  filed;  notice  to  master.  The  liens  provided  for  in 
the  preceding  sections  shall  be  filed  as  is  provided  for  other  liens. 
The  subcontractor  or  laborer  may  give  notice  to  the  master,  agent  or 
owner  of  snch  vessel,  that  the  contractor  or  stevedore  is  or  will 
become  indebted  to  him,  when  it  shall  be  the  duty  of  such  master, 
agent  or  owner  of  such  vessel  to  retain  out  of  the  amount  due  to 
such  contractor  or  stevedore  under  his  contract,  as  much  as  shall 
be  due  or  claimed  by  the  person  giving  the  notice,  and  after  such 
notice  is  given  no  payment  to  the  contractor  or  stevedore  shall  be  a 
credit  on  or  a  discharge  of  the  lien  herein  provided. 

•     Code,  s.  1805;  1881,  e.  3.56,  s.  2. 

2043.  How  enforced.  The  enforcement  of  such  lien  shall  be  by 
summons  against  the  contractor  or  stevedore,  and  also  against  the 
master,  agent  or  owner  of  such  vessel,  who  made  the  contract  with 
such  contractor  or  stevedore,  if  over  two  hundred  dollars,  to  be  issued 
by  the  clerk  of  the  superior  court,  and  if  under  two  hundred  dollars, 
by  a  justice  of  the  peace. 

Code,  s.  1806;   1881,  c.  356,  s.  3. 


2044  LIE^S— VIII.   On    Vessels.  Ch.  4S 

2044.  Judgment  against  contractor,  a  judgment  against  mas- 
ter and  vessel.  The  judgmeiit  against  the  eontractor  or  stevedore 
shall  also  be  a  judgment  against  the  master,  agent  or  owner  of  such, 
vessel,  and  also  against  such  vessel  itself,  her  tackle,  apparel  and 
furniture,  which  shall  be  seized,  held  and  sold  imder  execution  for 
the  satisfaction  of  such  judgment. 

Code,  s.  1807;  1881,  c.  356,  s.  4. 

2045.  Liens  not  to  exceed  amount  due  contractor.  The  :^um 

total  of  all  the  liens  due  to  different  subcontractors  and  laborers,  per- 
formed for  any  contractor  or  stevedore  under  any  contract  with 
any  master,  agent  or  owner  of  any  vessel,  shall  not  exceed  the 
amount  due  to  such  contractor  or  stevedore  at  the  time  of  notice 
given  to  such  owner,  agent  or  master,  or  the  amount  due  to  such  con- 
tractor or  stevedore  at  the  time  of  the  service  of  summons  upon  such 
master,  agent  or  OAvner  when  no  notice  has  been  given. 
Code,  s.  1808;   1881,  c.  356,  s.  5. 

2046.  Owner  to  see  laborers  paid.  In  all  cases  where  steam- 
ships or  vessels  of  any  kind  are  loaded  or  unloaded  or  where  any 
work  is  done  in  or  about  the  same  by  the  contractors  to  do  the 
same  known  as  stevedores  or  "boss  stevedores,"  who  in  doing  the 
same  shall  employ  laborers  to  assist  or  do  the  work  by  the  hour,  day, 
week  or  month,  it  shall  be  the  duty  of  the  owner  or  agent  of  the 
vessel  to  see  that  the  laborers  employed  in  or  about  the  same  by  the 
stevedore,  contractor  or  "boss  stevedore"'  are  fully  paid  the  wages 
that  may  be  due  such  laborer  before  he  shall  make  final  settlement 
with  the  contractor,  stevedore  or  "boss  stevedore."' 

1887,  c.  us,  s.  1. 

2047.  May  refuse  settlement  with  contractor  till  laborers  paid. 

Auy  owner  or  agent  referred  to  in  the  preceding  section  shall  have 
power  to  refuse  final  settlement  with  the  "boss  stevedore"  or  con- 
tractor until  he  or  they  shall  satisfy  the  said  owner  or  agent,  by 
written  oath  if  necessary,  that  the  same  has  been  done. 
1887,  e.  145,  s.  2. 

2048.  Owner  may  pay  orders  for  wages.  It  .shall  be  lawful  for" 

the  owner  or  agent  of  such  vessel  to  pay  off  from  time  to  time  such 
orders  for  wages  as  may  be  due  and  given  therefor  in  favor  of  the 
laborei's  by  the  contractor  or  stevedore,  which  on  final  settlement 
may  be  deducted  from  the  contract  price. 

1887,  c.  145.  s.  .S. 

2049.  Laborers  may  sue  owner,  when.  Any  owner  or  agent  of 

such  vessel  who  shall  neglect  or  refuse  to  conijily  witli  the  preced- 


.2049  LIENS— T'7//.   On  Vessels.  Ch.  48 

ing  provisions  shall  be  liable  to  such  laborer  in  a  civil  action  for  the 
amount  of  the  wages  so  due  him  by  the  contractor,  stevedore  or 
"boss  stevedore." 
1887,  c.   145,  s.  4. 

2050.  Contractors  for  loading  vessels  licensed.  Xo  person  shall 

engage  in  the  business  of  loading  or  unloading  vessels  upon  contract, 
nor  shall  any  person  solicit  or  make  any  contract  for  himself  or  for 
any  other  person  to  load  or  unload  any  vessel  either  by  day's  work  or 
by  the  job,  withoiit  having  previously  obtained  a  license  therefor, 
in  the  manner  provided  by  law  for  other  licenses  for  trades  and 
occupations. 

1891,  c.  450;    1899,  c.  595. 

2051.  Tax  and  bond.  Before  the  sheriff  shall  issue  the  said 
license  the  applicant  shall  pay  to  the  sheriff  an  annual  tax  of  fifty 
dollars,  and  shall  execute  a  bond  with  two  or  more  approved  sureties 
in  the  sum  of  two  thousand  dollars,  payable  to  the  state  of  North 
Carolina,  and  conditioned  for  the  faithful  performance  of  his  duties 
and  the  due  and  lawful  payment  of  all  sums  due  to  laborers  assist- 
ing in  the  work  of  loading  or  unloading  any  vessels  upon  which  the 
applicant  may  be  engaged.  And  every  bond  so  taken  shall  be 
renewed  annually,  and  shall  be  filed  with  and  preserved  by  the  regis- 
ter of  deeds  in  trust  for  every  person  that  shall  be  injured  by  the 
breach  of  his  contracts,  who  may  severally  bring  suit  thereon  for 
the  damages  by  each  one  sustained. 

1891,  c.  450. 

IX.     Ageicultuk.vl  Liexs. 

2052.  On  crops  for  advances.  If  any  per.son  shall  make  any 
advance  either  in  money  or  supplies  to  any  person  who  is  engaged 
in  or  about  to  engage  in  the  cultivation  of  the  soil,  the  person  so 
making  such  advance  shall  be  entitled  to  a  lien  on  the  crops  which 
may  be  made  during  the  year  upon  the  land  in  the  cultivation  of 
which  the  advance  so  made  has  been  expended,  in  preference  to 
all  other  liens  existing  or  otherwise,  except  the  laborer's  and  land- 
lord's liens,  to  the  extent  of  such  advance -JProvided,  an  agreement 
in  writing  shall  be  entered  into  before  any  such  advance  is  made  to 
this  eff'ect,  in  which  shall  be  specified  the  amount  to  be  advanced,  or 
in  which  a  limit  shall  be  fixed  beyond  which  the  advance,  if  made 
from  time  to  time  during  the  year,  shall  not  go ;  which  agreement 
shall  be  registered  in  the  office  of  the  register  of  the  county  in  which 
the  person  to  whom  the  advance  is  made  resides,  within  thirty 
ulays  after  its  date. 

Code,  s.  1799;   1893,  0.  9:   18G6-7.  c.  1,  s.  1 ;   1872-3.  c.  133,  s.   1. 


2053  LIEXS— /A".  AgncnJfural  Liens.  Ch.  4S 

2053.  Lien  created  by  mortgagors  in  possession.  The  preced- 
ing section  shall  apply  to  all  contracts  made  for  the  advancement  ' 
of  nionej'  and  supplies,  or  either,  for  the  purposes  herein  specified 
by  mortgagors  or  trustors  who  may  be  in  possession  of  the  lands 
mortgaged  or  conveyed  in  trust  at  the  time  of  the  making  of  the 
contract  for  such  advancement  of  money  or  supplies,  either  in  case 
the  debts  secured  in  said  mortgage  or  deed  of  trust  be  due  or  not. 

1889,  e.  476. 

2054.  Crops  seized  and  sold,  when;  issue  made  up  for  trial. 

If  the  person  making  .such  advances  shall  make  an  atWdavit  before 
the  clerk  of  the  superior  court  of  the  county  in  which  such  crops 
are,  that  the  amount  secitred  by  said  lien  for  such  advances,  or  any 
part  thereof,  is  due  and  unpaid,  that  the  person  to  whom  such 
advances  have  been  made,  or  any  other  person  having  the  said  crop 
in  his  jDossession,  is  about  to  sell  or  dispose  of  his  crop,  or  in  any 
other  way  is  about  to  defeat  the  lien  hereinbefore  provided  for, 
accompanied  with  a  statement  of  the  amount  then  due,  it  shall 
be  laAvful  for  him  to  issue  his  warrant,  directed  to  any  of  the  sheriffs 
of  this  state,  requiring  them  to  seize  the  said  crop,  and,  after  due 
notice,  sell  the  same  for  cash  and  pay  over  the  net  proceeds  thci-eof, 
or  so  much  thereof  as  may  be  necessary  in  the  extinguishment  of 
the  amount  then  due:  Provided,  that  if  the  person  to  Avhom  such 
advances  have  been  made,  or  any  person  claiming  an  interest  in  the 
crops,  shall,  within  thirty  days  after  such  sale  has  been  made,  give 
notice  in  writing  to  the  sheriff,  accompanied  with  an  affidavit  to 
this  effect,  that  the  amount  claimed  is  not  justly  due,  then  it  shall 
be  the  duty  of  the  said  sheriff  to  hold  the  proceeds  of  such  sale  sub- 
ject to  the  decision  of  the  court,  upon  an  issue  which  shall  be  maile 
up  and  set  down  for  trial  at  the  next  succeeding  term  of  the  supe- 
rior court  for  the  county  in  which  the  person  to  whom  such  advances 
have  been  made  resides:  Provided  further,  that  the  lien  provided 
in  this  and  the  preceding  sections  shall  not  affect  the  rights  of  land- 
lords or  laborers. 

Code,  s.  1800;  1893,  e.  9;  18G0-7,  c.  1,  s.  2;  1872-3,  (.•.  133,  s.  2;  1883,  c.  88. 

2055.  Short  form  in  certain  counties.  For  the  purpose  of  cre- 
ating a  valid  agricultural  lien  under  the  preceding  sections  for  sup- 
plies to  be  advanced  and  also  to  constitute  a  valid  chattel  mortgage  as 
additional  security  thereto,  and  to  secure  a  pre-existing  debt,  the  fol- 
lowing or  a  substantially  similar  form  shall  be  deemed  sufficient,  and 
for  those  purposes  legally  effective,  in  the  counties  of  Alamance. 
Alleghany,  Ashe,  Peaufort,  Bladen,  Brunswick,  Bunc(mibe,  Burke, 
Cabarrus,  Carteret,  Caswell,  Catawba,  Chowan,  Columbus,  Craven, 
Cumberland,  Davie,  Davidson,  Duplin,  Durham,  Edgecombe,  Frank- 


I 


2055  LIENS— /X.  AgriaiUural  Liens.  Oh.  48 

liii,  Forsyth,  Gaston,  Gates,  Granville,  Halifax,  Harnett,  Hertford, 
Hyde,  Iredell,  Johnston,  Jones,  Lenoir,  Lincoln,  Martin,  McDowell, 
Mecklenburg,  Moore,  Nash,  New  Hanover,  Northampton,  Ouslow, 
Pender,  Pamlico,  Person,  Pitt^  Polk,  Richmond,  Robeson,  Rocking- 
ham, Rowan,  Rutherford,  Sampson,  Scotland,  Transylvania,  Tyr- 
rell, Union,  Vance,  Watauga,  Washing-ton,  Wayne  and  Wilson : 

North  Carolina,   County. 

Whereas,    ha ...  .    agreed  to   make   advances   to    

for  the  purpose  of  enabling  said to  cultivate  the  lands  herein- 
after described  during  the  year  19....,  the  amount  of  said  advances  not  to 
exceed dollars ;   and, 

Whereas,  said   is  indebted  to  said   in  the 

further  sum  of dollars  now  due;   now,  therefore,  in  order  to  secure  the 

payment  of  the  same  the  said    do ...  .    hereby  convey  to  said 

all   the    crops   of   every    description    which    may    be    raised 

during  the  year   19.  .  .  .    on  the  following  lands  in County,  North 

Carolina,  Township,  adjoining  the  lands  of , 

and  also  the  following  other  property,  viz. : 

And  if  by  the day  of ,  19.  .  .  .,  said fail.  .  .  . 

to  pay  said  indebtedness,  then  said  may  foreclose  this  lien  as 

provided  in  section  two  thousand  and  fifty-four  or  otherwise,  and  may  sell  said 
crops  and  other  property  after  ten  days'  notice  posted  at  the  court-house  door 
and  three  other  public  places  in  said  county,  and  apply  the  proceeds  to  the 
payment  of  said  indebtedness  and  all  costs  and  expenses  of  executing  this  con- 
veyance, and  pay  the  surplus  to  said ,  and  the  said 

hereby  represents  that  said  crops  and  other  property  are  the  absolute  property 

of and   free   from   incumbrance Witness,    

hand.  .  .  .and  seal,   ....   this  the day  of ,  19.  .  .  . 

Witness :    


,  owner  of  the  lands  described  in  the  foregoing  instrument, 

in  consideration  of  the  advances  to  be  made,  as  therein  provided,  do.  .  .  .  hereby 
agree  to  waive  and  release  my  lien  as  landlord  upon  said  crops  to  the  extent 
of  said  advances  made  to  said  

This  the day  of 19.  .  .  . 

Witness :    ( Seal ) . 

North  Carolina,  County. 

The  due  execution  of  the  foregoing  instrument  was  this  day  proven  before  me 

by  the  oath  and  examination  of ,   the   subscribing 

witness  thereto. 

This  the day  of 19 

(Seal). 

North  Carolina,   County. 

The  foregoing  certificate  of ,  a    of   

County,  is  adjudged  to  be  correct.  Let  the  instrument  with  the  certificate  be 
registered. 

This  the thiv  of 19 


Clerk  Superior  Court 
1899,  cc.  17.  247;  1901,  cc.  329,  704;  190.3,  c.  489:  1905,  cc.  226,  319. 

2056.  Rights  on  failure  to  cultivate  crops.  If  any  person  in 

the  counties  mentioned  in  the  preceding  section,   after  executing  a 
lien  as  aforesaid  for  advances,  shall  fail  to  cultivate  the  lands  de- 


205G  LIENS— 7X.  AijriculltimJ  Liens.  C'li.  4S 

scribed  therein,  or  shall  do  any  other  act  calculated  to  impair  the 
security  therein  given,  then  the  person  to  whom  the  lien  was  exe- 
cuted shall  be  relieved  from  any  further  obligation  to  furnish  sup- 
plies, and  the  debts  and  advances  theretofore  made  shall  become 
due  and  collectible  at  once,  and  the  person  to  whom  the  instrument 
was  executed  may  proceed  to  take  possession  of,  cultivate  and  har- 
vest said  crops,  and  to  sell  the  other  property  described  therein.  It 
shall  not  be  necessary  to  incorporate  such  power  in  the  instruniont, 
but  this  section  shall  be  sufficient  authority  for  the  same:  Provided, 
that  the  sale  of  any  property  described  in  any  instrument  executed 
under  the  provisions  of  this  chapter  may  be  made  at  any  place  in  the 
county  where  such  property  is  situated  after  ten  days'  notice  pub- 
lished at  the  courthouse  door  and  three  other  public  places  in  said 
coiinty. 

1899,  c.   17,  s.  3;   1901,  c.  329,  s.  3. 

2057.  Commissioners  to  furnish  blank  records.  The  board  of 

commissioners  of  the  said  counties  shall  have  record  books  made 
with  the  aforesaid  forms  printed  therein,  and  the  cost  of  said  books 
and  of  the  printing  of  said  forms,  and  of  such  other  said  books  as 
may  be  hereafter  required,  shall  be  paid  by  the  respective  counties, 
and  furnished  to  the  register  of  deeds. 
1899,  c.  17,  a.  4;   1901,  c.  329,  s.  4. 


Note.     For  fees  for  probating  and  registering  lien  bonds,  see  ss.  2773,  2770. 

For  laborer's  lien  on  corporate  assets,  see  Corporations,  s.  1206. 

For  power  to  take  crops,  see  ss.  790,  2054. 

For  landlord's  lien,  see  Landlord  and  Tenant,  s.  1993. 

For  lien  of  docketed  judgment,  see  s.  .574. 

For  lien  of  docketed  judgments  of  justices  of  the  peace,  see  s.  1479. 

For  lien  upon  land  for  improvements  made,  see  s.  658. 

Debts  which  are  liens  on  decedent's  property  paid  by  administrator,  see  s.  87. 


I. 

Manufacture, 

II. 

License, 

III. 

Local  option  elections. 

IV. 

Dispensaries, 

V. 

Special  acts, 

I.     Manufacture 

I'or.S  LIQUORS—/.  Mamifadure.  Ch.  49 


CHAPTEE  49. 
LIQUORS. 

Sections. 

2058—2061 

2062—2068 

2069—2073 

2074—2078 
2079—2080 


2058.  Place.  ISTo  person  shall  manufacture  or  rectify  for  gain 
any  spirituous,  vinotts  or  malt  liqvtors  or  intoxicating  bitters  within 
the  state  of  ISTorth  Carolina  except  in  incorporated  cities  and  towns 
having  not  less  than  one  thousand  population,  wherein  the  manu- 
facture of  liquor  is  not  or  may  not  hereafter  be  prohibited  by  law  or 
regulated  by  special  statute. 

1905,  c.  3.39,  s.  1. 

■  2059.  Government  and  police  force;  duties.  Every  incorporated 

city  or  town  in  which  spirituoits,  vinous  or  malt  liquors  or  intoxi- 
cating bitters  are  permitted  to  be  sold  or  manufactured  under  the 
provisions  of  this  chapter  shall  maintain  a  town  or  city  government 
as  provided  in  its  charter  of  incorporation  and  a  police  force  of  not 
less  than  two  policemen ;  and  it  shall  be  the  duty  of  some  member 
of  said  police  force  to  visit  every  place  where  liquor  is  sold  or  manu- 
factured in  such  city  or  town  at  least  once  every  week  and  make  a 
careful  and  thorough  inspection  and  examination  thereof,  with  a 
view  of  ascertaining  whether  the  laws  regailating  the  manufacture 
and  sale  of  liquor  are  observed  and  obeyed  and  whether  the  said 
business  is  conducted  in  an  orderly  and  lawful  manner,  and  to  make 
a  written  report  setting  forth  the  result  of  said  visitation  to  the 
mayor  and  board  of  aldermen  or  other  governing  authorities  of  such 
city  or  town,  which  report  or  several  reports  the  said  mayor  shall 
deliver  to  the  solicitor  of  the  district  on  or  before  the  assembling  of 
the  ensuing  term  of  the  superior  coiirt  of  the  county  in  which  such 
town  or  city  is  situated ;  and  in  case  such  town  or  city  shall  fail  to 
maintain  a  city  government  or  provide  the  police  force,  investiga- 
tions and  report  herein  prescribed,  the  board  of  commissioners  of 
the  county  in  which  the  same  is  situated  may  revoke  and  cancel  the 
license  and  permission  authorizing  the  sale  and  mantifacture  of 
liquor  in  such  town  or  city. 
1905,  c.  339,  s.  4. 

627 


■20m  LIQUORS— 7.  Manufacfure.  Ch.  4!t 

2060.  License  from  United  States  as  evidence.  The  possession 

of  or  issuance  to  any  person  of  a  license  to  niannfactnre,  rectify  or 
sell,  at  wholesale  or  retail,  spirituous  or  malt  liquors  by  the  United 
States  government  or  any  officer  thereof  in  any  coimty,  city  or  town 
where  the  manufacture,  sale  or  rectification  of  spirituous  or  malt 
liquors  is  forbidden  by  the  laws  of  this  state  shall  be  prima  facie 
evidence  that  the  person  having  such  license,  or  to  whom  the  same 
was  issued,  is  guilty  of  doing  the  act  permitted  by  the  said  license  in 
violation  of  the  laws  of  this  state. 
1905,  c.  339,  s.  5. 

2061.  Wine  or  cider  from  fruits.  The  manufacture  of  wine  or 
cider  from  grapes,  berries,  or  other  fruits  raised  on  the  lands  of 
the  manufacturer,  or  purchased  by  him  from  the  growers  thereof, 
or  of  brandy  manufactured  from  fruits  and  sold  in  original  pack- 
ages of  not  less  than  five  gallons,  shall  not  be  restricted  to  incor- 
porated towns  and  cities,  but  the  same  may  be  manufactured  in  any 
place  where  such  manufacture  is  not  otherwise  forbidden  by  law. 

1903,  c.  233,  s.   1. 

IT.      License. 

2062.  Necessary.  ISTo  person  shall  sell  or  otherwise  dispose  of 
for  gain  any  s]iirituous,  vinous  or  malt  liquors,  or  intoxicating  bit- 
ters without  first  obtaining,  as  provided  by  law,  a  license  so  to  do. 
jSTothing  in  this  section  shall  prevent  any  person  from  selling  brandy 
manufactured  by  the  seller  from  fruit  or  grapes  and  sold  in  original 
packages  of  not  less  than  five  gallons ;  nor  shall  prevent  any  person 
from  selling  wines  of  his  own  manufacture  at  the  place  of  manu- 
facture, or  within  one  hundred  yards  thei-eof,  in  quantities  of  not 
less  than  one  gallon ;  but  such  manufactiirer  may  sell  wine  to 
churches  for  commimion  services  in  any  quantity. 

1903,  c.  233,  ss.  2,  6;  247,  s.  60. 

2063.  Issued  to  druggists  outside  of  towns.  All  druggists  may 

sell  spirituous,  vinous  and  malt  liquors  for  use  by  a  sick  person  upon 
the  written  prescription  of  a  legally  qualified  physician  having  such 
person  under  his  charge,  and  not  otherwise.  No  druggist  shall  dupli- 
cate the  prescription  of  a  physician  for  intoxicating  liquors.  All 
druggists  selling  liquors  by  prescription  shall  keep  a  record  thereof 
showing  the  true  date  of  sale,  the  name  of  the  person  for  whom  sold, 
the  name  of  the  person  to  whom  delivered,  and  the  quantity  sold. 
which  record  shall  at  all  times  be  open  to  the  inspection  of  any  person 
desiring  to  see  it.  Nothing  iu  this  section  shall  be  construed  so  as 
to  relieve  druggists  from  complying  with  the  law  as  to  license  and. 
taxes. 

1903,  c.  2.3.3,  ss.  1,  5. 

628 


liOfii  LIQUORS— 77.  License.  Ch.  49 

2064.  Application  for.  Every  person  desiring  to  sell  liquors  shall 
make  applieatiuu  to  the  board  of  county  commissioners  for  an  order 
to  the  sheriff  to  issue  license.  The  application  shall  be  in  writing 
and  shall  show  that  the  applicant  is  a  bona  fide  citizen  of  the  United 
States  and  a  legal  voter  of  ISTorth  Carolina ;  that  he  has  never  been 
convicted  nor  confessed  his  guilt  in  a  court  of  competent  jurisdic- 
tion, of  any  violation  of  the  laws  of  any  state  regulating  the  sale 
of  liquors;  and  the  place  where  the  business  is  to  be  carried  on, 
which  in  all  cases  (druggists  excepted)  must  be  within  an  incorpo- 
rated town  or  city,  and  more  than  two  hundred  feet  in  a  direct 
line  from  any  church  edifice  or  the  premises  pertaining  thereto. 
The  application  must  have  been  approved  before  filing  by  the  board 
of  commissioners,  aldermen  or  governing  body  by  whatever  name 
called,  of  the  city  or  to\vn  in  which  it  is  proposed  to  carry  on  the 
business,  and  must  be  accompanied  by  the  affidavit  of  six  freeholders 
who  are  tax  payers  and  residents  of  the  township  in  which  the  appli- 
cant proposes  to  do  business,  all  of  whom  shall  declare  upon  oath 
that  the  applicant  is  a  proper  person  to  sell  spirituous,  vinous  or 
malt  liquors;  that  the  building  specified  is  a  suitable  place  for  the 
business  to  be  carried  on,  and  that  he  has  not  recommended  any 
other  person  for  liquor  license  in  the  same  township. 

1903,  e.  247,  s.  66. 

2065.  Hearing,  and  order  for.  At  the  hearing  of  the  application 
by  the  board  of  county  commissioners  any  person  who  may  consider 
himself  aggrieved  by  the  granting  of  the  license  applied  for  may 
contest  the  same  and  may  jDroduce  evidence  in  contradiction  of  any 
of  the  allegations  of  the  apjjlication  or  show  any  other  reason  why 
the  license  should  not  be  granted.  If  satisfied  of  the  truth  of  the 
allegations  of  the  application  and  affidavit,  the  board  of  county  com- 
missioners may  grant  an  order  to  the  sheriff  to  issue  such  license, 
except  in  territory  where  the  sale  of  liquor  is  prohibited  by  law. 

190:i  e.  247,  s.  66. 

2066.  Form  and  issuing.  The  license  shall  be  printed  in  such 
form  as  the  treasurer  of  the  state  may  prescribe  and  furnished  by 
the  register  of  deeds,  and  shall  be  issued  by  the  sheriff  upon  ovdev 
of  the  board  of  county  commissioners  after  the  payment  of  the  taxes 
required  by  law.  .Vny  person,  taking  out  license  as  provided  in  this 
chapter  on  any  date  after  the  first  day  of  July  or  Janiiary,  shall  })ay 
the  whole  amount  of  tax  for  the  six  months  ending  the  thirty-first  day 
of  December,  or  the  thirtieth  day  of  Jime,  as  the  case  may  be,  after 
the  date  of  license. 

1903,  c.  247,  s.  66. 


2m7  LIQUORS—//.  License.  Ch.  4!t 

2067.  Posted  in  place  of  business.   All  persons  takiug  out 

license  to  sell  .sjiii-ituuus,  viiion.:  or  malt  liquors,  or  any  mixture 
thereof,  shall  jjost  up  in  some  public  place  in  their  place  of  business 
the  license  issued  to  them.  Any  person  failing  to  post  up  the  license 
as  provided  in  this  section  shall  be  considered  as  doing  business  witli- 
out   license. 

1903.  f.  247,  s.  GO. 

2068.  Revoked.  The  board  of  county  conunissioners,  upon  com- 
plaint made  by  any  resident  of  the  county  that  any  person  holding 
a  license  under  this  chapter  has  violated  the  laws  of  this  state  regu- 
lating the  sale  of  liquors,  shall  forthwith  summon  such  pei'son  to 
appear  before  them  at  a  time  given,  within  thirty  days,  to  show 
cause  why  such  license  and  the  order  to  issue  same  shoiild  not  be 
revoked,  and  upon  satisfactory  evidence  of  his  guilt,  shall  revoke  any 
license  heretofore  granted  by  them. 

1903,  c.  247,  s.  66. 

III.     Loc.'VL  Option  Elections. 

2069.  When  ordered,  what  submitted.  It  shall  be  the  duty  of 

the  governing  body  of  any  city  or  town,  upon  the  petition  of  one- 
third  of  the  registered  voters  therein,  who  were  registered  for  the 
preceding  municipal  election,  to  order  an  election  to  be  held,  after 
thirty  days'  notice,  in  any  year  in  which  the  petition  may  be  filed, 
except  within  ninety  days  of  any  city,  county  or  general  election,  in 
time  for  the  notice  to  be  given  as  above  required,  to  determine — 
(1)  AVhether  intoxicating  liquors  shall  be  manufactured  in  such  city 
or  town;  (2)  whether  barrooms  or  saloons  shall  be  established  in 
such  city  or  town;  (3)  whether  dispensai'ies  shall  be  established  in 
such  city  or  town.  And  any  such  election  may  be  ordered  to  deter- 
mine any  one  or  two  or  all  of  such  questions,  as  the  petitioners  may 
desigiiate  in  their  petition.  No  such  election  shall  he  lield  oftener 
tlian  once  in  two  years. 
1903,  c.  233,   s.   7. 

2070.  How  conducted.  Whenever  such  election  shall  be  held, 
it  shall  be  conducted  aiul  hold  xnidcr  the  provisious  of  law  regulating 
municipal  elections. 

1903,  c.   233,  s.   8. 

2071.  Boxes  provided,  what  tickets  voted.  Whenever  the  gov-    g 

erning  body  of  any  city  or  town  shall  order  any  such  election,  they 
shall  provide  one  box  to  determine  the  (luostiou  of  man\ifactiire  of 
liquors,  if  such  (piestion  is  to  be  voted  ujiou  :  one  box  to  deternnne 


L'((71  LIQUORS—///.  Local  Option  Elections.  Ch.  41) 

the  sale  by  saloons,  if  such  question  is  to  be  voted  upon;  and  one 
box  to  determine  the  sale  by  dispensaries  if  such  question  is  to  be 
voted  upon.  Any  person  entitled  to  vote  for  members  of  the  general 
assembly  shall  have  the  right  to  vote  at  such  elections  in  all  the  boxes 
provided,  and  every  such  voter  who  is  in  favor  of  the  manufacture  of 
intoxicating  liquors  shall  vote  a  ticket  on  which  shall  be  written  or 
printed  the  words  "For  Distilleries,"  and  all  opposed  to  the  manufac- 
ture of  intoxicating  liquors  shall  vote  a  ticket  on  which  shall  be  writ- 
ten or  printed  the  words  "Against  Distilleries" ;  and  every  such  voter 
who  is  in  favor  of  barrooms  or  saloons  shall  vote  a  ticket  on  which 
shall  be  written  or  printed  the  words  "For  Saloons,"  and  all  opposed 
to  them  shall  vote  a  ticket  on  which  shall  be  written  or  printed  the 
words  "Against  Saloons ;"  and  every  such  voter  who  is  in  favor  of 
dispensaries  shall  vote  a  ticket  on  which  shall  be  written  or  printed 
the  words  "For  Dispensaries,"  and  all  opposed  to  them  shall  vote  a 
ticket  on  which  shall  be  written  or  printed  the  words  "Against  Dis- 
pensaries."   Such  tickets  shall  be  of  white  paper  and  without  device. 

1003,  c.  233,  s.  0. 

2072.  Distilleries,  when  allowed.  If  a  majority  of  the  votes 
cast  in  any  such  election  shall  be  "Against  Distilleries,"  when  that 
question  is  voted  upon,  then  it  shall  be  unlawful  for  any  person  to 
manufacture  any  intoxicating  liquors  in  such  city  or  town  until 
another  election  shall  be  held  reversing  such  election.  But  if  a 
majority  of  the  votes  cast  in  any  such  election  in  any  city  or  town 
shall  bo  "For  Distilleries,"  then  it  shall  be  lawful  to  manufacture 
and  sell  at  wholesale  intoxicating  liquors  in  such  city  or  town.  This 
section  shall  not  be  construed  to  authorize  the  manufacture  of  intoxi- 
cating liquors  in  any  town  except  upon  a  full  compliance  with  the 
conditions  and  requirements  which  may  now  or  hereafter  be  im- 
posed by  law. 

1903,  c.  233,  s.   10. 

2073.  Saloons,  when  licensed.  If  a  majority  of  the  votes  in 
any  such  election  in  any  city  or  town  shall  be  "Against  Saloons," 
then  it  shall  be  unlawful  for  the  county  commissioners  of  any  such 
county,  or  the  governing  body  of  any  such  town,  to  grant  license  to 
any  person  for  the  sale  of  spirituous,  vinous,  malt  or  other  intoxi- 
cating liquors  whatever  in  such  city  or  town  until  another  election 
shall  be  lield  reversing  such  election:  Provided,  that  liquor  dealers 
in  such  cities  or  towns  holding  license  at  the  time  of  the  election 
shall  be  allowed  six  months  after  such  election  in  which  to  close 
<iut  their  stock  on  hand  at  the  time  of  such  election,  if  their  license 
so  long  r(!main  in  force.  But  if  a  majority  of  any  such  votes 
cast  in  anv  such  election   shall  be   "For  Saloons,"   tlien  the  board 


2073  LIQUORS—///.  Local  Option  Elections.  Cli.  -t!t 

of  county  cuuimissioners  of  such  county,  and  the  governing  body  of 
such  city  or  town,  shall  grant  license  to  sell  intoxicating  liquors  in 
such  city  or  town  to  all  proper  persons  applying  for  the  same  accord- 
ing to  law.  And  such  license  shall  be  gi-anted  until  another  election 
shall  be  held  reversing  such  election :  Provided  further,  that  this 
section  shall  not  be  construed  to  authorize  any  person  to  sell,  either 
by  retail  or  wholesale,  intoxicating  liquors  in  such  city  or  to'wu. 
except  upon  a  full  compliance  with  the  conditions  and  requirements 
which  may  now  or  hereafter  be  imposed  by  law. 

190.3,  e.  233,  s.   11. 

IV.     Dispensaries. 

2074.  When  established.  If  a  majority  of  the  votes  cast  at  any 
such  election  shall  be  "Against  Dispensaries,"  then  it  shall  bo  unlaw- 
ful to  establish  any  dispensary  in  such  city  or  town  until  another 
election  shall  be  held  reversing  such  election.  But  if  a  majority  of 
the  votes  cast  at  any  such  election  be  "For  Dispensaries,"  then  the 
board  of  commissioners  of  such  city  or  town  shall  establish  a  dis- 
pensary therein. 

1903,  c.  233,  s.  12. 

2075.  Commissioners  appointed.  Whenever  it  shall  become  law- 
ful under  the  provisions  of  this  chapter  to  establish  a  dispensary  in 
any  city  or  town,  the  governing  body  of  such  city  or  town  shall 
appoint  three  commissioners  from  the  voters  of  such  city  or  town, 
who,  in  the  election,  voted  for  dispensaries,  whose  duty  it  shall  be  to 
conduct  such  dispensaries  under  such  rules  and  regulations,  and 
with  such  officers  and  employees,  as  may  be  prescribed  and  allowed 
by  the  governing  body  of  such  city  or  town,  who  shall  fix  the  com- 
pensation of  said  commissioners  and  their  officers  and  employees. 

1903,  c.  233,  s.  13. 

2076.  Terms  of  office  fixed;  removal;  bonds.  The  governing 

body  of  any  city  or  town  in  which  a  dispensary  shall  be  established 
under  the  provisions  of  this  chapter,  shall  have  power  to  fix  the 
terras  of  office  of  the  dispensary  commissioners,  and  determine  the 
amoimt  of  bonds  reqiiired  from  the  commissioners  and  officers,  and 
shall  have  the  power  to  remove  any  or  all  commissioners  and  any 
officers  or  employees  appointed  by  such  couimissioners,  for  good 
cause  shown. 

190.3,  c.  23.3,  s.  18. 

2077.  Sales  in,  how  made.  No  liquor  of  any  kind  shall  be  sold 
in  any  (lis|)i'nsary  on  Sunday  or  election  days,  and  no  dispcn.sarv 
sliiill  cN'rv  be  iijicu  or  liquor  sold  therein  liofuro  snnris(>  or  after  sun- 

632 


-077  LIQUORS— /r.  Dispensaries.  Ch.  49 

^I't  on  any  clay.  The  prices  at  which  liquor  shall  be  sold  shall  be 
lixed  by  the  dispensary  commissioners.  All  sales  shall  be  for  cash 
and  at  a  profit  not  to  exceed  eighty  per  centum  of  the  cost  thereof. 
No  liquor  shall  be  sold  in  any  dispensary  except  in  unbroken  pack- 
ages or  bottles,  which  shall  contain  not  less  than  one-half  pint  and 
not  more  than  one  quart.  The  manager  of  a  dispensary  shall  pro- 
hibit loafing,  loitering  or  drinking  on  the  premises.  It  shall  be  the 
duty  of  the  manager,  when  ordered  by  the  board  of  dispensary 
commissioners,  to  keep  a  register,  on  which  shall  be  kept  a  record 
of  the  names  of  persons  to  whom  any  liquors  are  sold,  the  quantity 
sold,  price  paid,  and  date  of  sale.  Such  register  shall  be  open  only 
to  the  insjjection  of  the  dispensary  commissioners  and  its  employees, 
and  the  contents  thereof  shall  not  be  published.  jSTo  intoxicating 
liquors  shall  be  sold  to  any  minors,  and  the  dispensary  commissioners 
shall  make  such  rules  and  regulations  not  inconsistent  with  this 
chapter  as  may  be  proper  for  the  management  of  the  dispensary. 

1903,  c.  23.'?,  s.  14;   1905,  c.  458. 

2077a.  Unlawful  to  sell  except  in  dispensary.  In  any  town  in 

which  a  dispensary  is  established  under  the  provisions  of  this  chap- 
ter, it  shall  be  unlawful  for  any  person  to  sell  or  otherwise  dispose 
of  for  gain  any  intoxicating  liquors  otlier  than  in  the  manner  pro- 
vided for  sales  in  the  dispensary  as  aforesaid. 

1903,  c.  233,  s.   15. 

2078.  Proceeds  disposed  of.  The  dispensary  commissioners 
shall  make  quarterly  settlements  with  the  governing  body  of  the 
city  or  towm  in  which  any  dispensary  may  be  situated,  and  such  gov- 
erning body  shall,  within  ten  days  after  such  settlement,  pay  one- 
half  of  the  net  profits  of  such  dispensary  into  the  treasury  of  such 
city  or  town,  and  the  other  half  into  the  treasury  of  the  county  in 
which  such  city  or  town  is  located,  for  the  benefit  of  the  public 
schools  of  said  county. 

1903,  c.  233,  s.  16. 

V.     Special  Acts. 

2079.  Not  repealed.  Nothing  in  this  chapter  shall  be  construed 
to  repeal,  alter  or  amend  any  special  act'  prohibiting  or  regiilating 
the  sale  of  liquors  in  any  locality,  township,  county  or  incorporated 
city  or  town,  or  the  manufacture  of  liquors  in  any  incorporated  eith- 
er town  having  not  less  than  one  thousand  population. 

1903,  0.  233,  s.  19;  1905,  e.  339,  s.  3. 


XoTE.     For   crimes   arising   from   violations    nf   tliis   chapter,    see    Crimes,   sub- 
chapter Liquors. 

633 


2080  LTQUOES— T.  Special  Arts.  Cli.  4'.t 

2080.   Place  of  delivery,  place  of  sale.  The  place  where  delivery 

uf  any  si>irituous,  malt,  vinous,  iVnnented  or  other  intoxicatins: 
liquors  is  made  in  the  state  of  North  Carolina  shall  be  construed 
and  held  to  be  the  place  of  sale  thereof;  and  any  station  or  other 
place  within  said  state  to  which  any  person  shall  ship  or  convey  any 
spiritiious,  malt,  vinoias,  fermented  or  other  intoxicating  liquors  for 
the  purpose  of  delivering  or  carrying  the  same  to  a  purchaser  shall 
be  construed  to  be  the  place  of  sale :  Provided,  that  this  section  shall 
not  be  construed  to  prevent  the  delivery  of  any  spirituous,  malt, 
vinous,  fermented  or  other  intoxicating  liquors  to  druggists  in  suffi- 
cient quantities  for  medical  purposes  only:  Provided  further,  that 
this  section  shall  not  be  construed  to  prevent  the  shipment  of  such 
intoxicating  liquors  to  duly  licensed  dealers  in  the  same  in  any  town 
or  city  where  the  sale  of  such  liquors  is  not  prohibited  by  law.  All 
liquors  or  mixtures  thereof,  by  whatever  name  called,  that  will  pro- 
duce intoxication  shall  be  construed  and  held  to  be  intoxicating 
liquors  within  the  meaning  of  this  section:  Provided,  that  this  sec- 
tion shall  apply  to  the  following  counties  and  toAvnships  in  Xorth 
Carolina,  and  none  other,  viz. :  The  counties  of  Alleghany,  Ashe, 
Burke,  Bertie,  Bladen,  BrunsAvick,  Buncombe,  Cabarrus,  Caldwell, 
Carteret,  Catawba,  Cherokee,  Cleveland,  Craven,  Cumberland,  Du- 
plin, Durham,  Forsyth,  Franklin,  Gaston,  Gates,  Graham,  Guil- 
ford, Harnett,  Haywood,  Hyde,  Iredell,  Johnston,  Lincoln,  Macon. 
Mecklenburg,  Mitchell,  Montgomery,  Moore,  Northampton,  Orange, 
Perquimans,  Randolph,  Robeson,  Rutherford,  Scotland,  Union, 
Vance,  Wake,  Warren,  Watauga  and  Y'ancey;  and  in  Goldsboro 
township,  Wayne  county;  Nashville  and  Manning  townships  in 
Nash  county ;  Lake  Waccamaw,  Pine  Bluff,  Whiteville  and  Cliad- 
bourn  townships  in  Columbus  county,  and  Kinston  township  in 
Lenoir  coiinty. 

190.5,  ec.  301,  4.'32.  440,  821. 


osl  MAERIAGE— 7.  Hov   Contrarted.  Ch.   50 


CHAPTER  50. 
MARRIAGE. 

Sections. 

I.     How  contracted,  2081 

II.     Contracting  parties,  2082 — 2085 

III.     The  license,  2086—2092 

I.        How     CONTEACTED. 

2081.  What  constitutes.  The  consent  of  a  male  and  female  per- 
son who  may  lawfully  marry,  presently  to  take  each  other  as  hus- 
band and  wife,  freely,  seriously  and  plainly  expressed  by  each  in 
the  presence  of  the  other,  and  in  the  presence  of  an  ordained  minis- 
ter of  any  religious  denomination  or  of  a  justice  of  the  peace  and 
the  consequent  declaration  by  such  minister  or  officer  that  such  j^er- 
sons  are  man  and  wife,  shall  be  a  valid  and  sufficient  marriage: 
Provided,  that  the  right  of  marriage  among  the  Society  of  Friends, 
according  to  a  form  and  custom  peculiar  to  themselves  shall  not  be 
interfered  with  by  the  provisions  of  this  or  any  other  section  of 
this  chapter. 

Code,  s.  1812;   1871-2,  c.  193,  s.  3. 

II.     Contracting  Parties. 

2082.  Who  may  marry.  All  unmarried  male  persons  of  sixteen 
years,  or  upwards,  of  age,  and  all  unmarried  females  of  fourteen 
years,  or  upwards,  of  age,  may  lawfully  marry,  except  as  herein- 
after forbidden. 

Code,  s.  180D;  R.  C,  e.  68,  s.  14;   1871-2,  c.  193. 

2083.  Who  may  not  marry.  All  marriages  between  a  white  per- 
son and  a  negro  or  Indian,  or  between  a  white  person  and  person 
of  negro  or  Indian  descent  to  the  third  generation,  inclusive,  or 
between  a  Croatan  Indian  and  a  negro,  or  between  a  Croatan  Indian 
and  a  person  of  negro  descent  to  the  third  generation,  inclusive,  or 
between  any  two  persons  nearer  of  kin  than  first  cousins,  or  between 
a  male  person  under  sixteen  years  of  age  and  any  female,  or  between 
a  female  person  under  fourteen  years  of  age  and  any  male,  or  between 
persons  either  of  whom  has  a  husband  or  wife  living  at  the  time  of 
such  marriage,  or  between  persons  either  of  whom  is  at  the  time 
physically  impotent,  or  is  incapable  of  contracting  from  want  of 


i'OS:j  M.UUn\GE^I[.   Coulrarliii;/  I'arllcs.  Cli.   :.n 

will  or  understanding,  shall  be  void :  Provided,  that  no  marriage 
followed  by  cohabitation  and  the  birth  of  issue  shall  be  declared  void 
lifter  the  death  of  either  of  the  parties  for  any  of  the  causes  stated 
in  this  section,  except  for  that  one  of  the  parties  was  a  white  person, 
and  the  other  a  negTO  or  Indian,  or  of  ncgTO  or  indian  descent  to  tliu 
third  generation,  inclusive,  and  for  bigamy. 

Code,  s.  1810;  R.  C,  c.  68,  ss.  7,  8,  9 ;  1871-2,  c.  103,  s.  2;  ISST,  o.  245. 

Note.     See  Divorce  and  Alimony,  s.  1560. 

2084.  Prohibited  degrees  of  icinship.     Whenever   the  degree  of 

kinship  shall  be  estimated  M'ith  the  view  to  ascertain  the  right  of 
kinspeople  to  marry,  the  half-blood  shall  be  counted  as  the  whole- 
blood:  Provided,  that  nothing  herein  contained  shall  be  so  con- 
strued as  to  invalidate  any  marriage  heretofore  contracted  in  case 
where  by  counting  the  half-blood  as  the  whole-blood  the  persons  con- 
tracting such  marriage  would  be  nearer  of  kin  than  first  coiisins ; 
but  in  every  such  case  the  kinship  shall  be  ascertained  by  counting 
relations  of  the  half-blood  as  being  only  half  so  near  kin  as  those 
of  the  same  degree  of  the  whole  blood. 
Code,  s.  1811;   1879,  c.  78. 

2085.  Marriages  between  slaves  validated.   Persons,  both  or 

one  of  whom  were  formerly  slaves,  who  have  complied  with  the  pro- 
visions of  section  five,  chajDter  forty,  of  the  acts  of  the  general  assem- 
bly, ratified  March  tenth,  one  thousand  eight  hundred  and  sixty- 
six,  shall  be  deemed  to  have  been  lawfully  married. 

Code,  s.   1842;    1860,  c.  40,  s.  5. 

III.     The  License. 

2086.  Unlawful  to  perform  ceremony  without.  Xo  minister  or 

officer  shall  ]ierform  a  ceremony  of  marriage  between  any  two  per- 
sons, or  shall  declare  them  to  bo  naan  and  wife,  until  there  shall 
be  delivered  to  him  a  license  for  the  marriage  of  the  said  persons, 
signed  by  the  register  of  deeds  of  the  county  in  which  tlie  marriage 
is  intended  to  take  place,  or  by  his  lawful  deputy. 
Code,  s.   1S13;   1871-2,  c.   193,  s.  4. 

2087.  Penalty  for  performing  ceremony  without.  Kvery  minis- 
ter or  officer  wIki  shall  marry  any  ('(iniijc  without  a  license  being 
first  delivered  to  him,  as  required  by  law,  or  after  the  expiration  of 
such  license,  or  who  shall  fail  to  return  such  license  to  the  register 
of  deeds  within  two  months  after  any  marriage  celebrated  by  virtue 
thereof,   witli   the   certificate   ap])ended   thereto   duly   filled   up   and 


lM)S7  MAREIAGE— ///.   The  License.  Cli.   50 

signed,  shall  forfeit  and  pay  two  hnndred  dollars  to  any  person  who 
shall  sue  therefor. 

Code,  s.  1817;  R.  C,  c.  68,  ss.  6,  13;  1871-2,  c.  193,  s.  8. 

Note.     For  further  penalty,  see  s.  3372. 

2088.  Issued  by  register  of  deeds.  Every  register  of  deeds  shall, 
upon  application,  issue  a  license  for  the  marriage  of  any  two  per- 
sons: Provided,  it  shall  appear  to  him  probable  that  there  is  no  legal 
impediment  to  such  marriage:  Provided  further,  that  where  either 
party  to  the  proposed  marriage  shall  be  under  eighteen  years  of 
age,  and  shall  reside  with  the  father,  or  mother,  or  uncle,  or  aunt, 
or  brother,  or  elder  sister,  or  shall  reside  at  a  school,  or  be  an  orphan 
and  reside  with  a  gaiardian,  the  register  shall  not  issue  a  license  for 
such  marriage  until  the  consent  in  writing  of  the  relation  with 
whom  such  infant  resides,  or,  if  he  or  she  resides  at  a  school,  of  the 
person  by  whom  said  infant  was  i;)laced  at  school,  and  under  whose 
custody  and  conti'ol  he  or  she  is,  shall  be  delivered  to  him,  and  such 
written  consent  shall  be  filed  and  preserved  by  the  register.  And 
whenever  it  shall  appear  to  the  register  of  deeds  that  it  is  jjroba- 
ble  there  is  any  legal  impediment  to  the  marriage  of  any  person  for 
whom  a  license  is  aj^plied  he  shall  have  power  to  administer  to 
the  person  so  applying  an  oath  toueliing  the  legal  capacity  of  said 
parties  to  contract  a  marriage. 

Code,  s.  1814;   1887,  c.  331;   1871-2,  c.   193,  s.  5. 

2089.  Form  of  license.  License  shall  be  in  the  following  or 
some  equivalent  form: 

To  any  ordained  minister  of  any  religious  denomination,  or  to  any  justice  of 

the  peace  for   county:    A.  B.  having  applied  to  me  for  a  license  for 

the  marriage  of  C.  D.  (the  name  of  the  man  to  he  written  in  full)  of  (here  state 
his  residence),  aged.  .  .  .years  (race,  as  the  case  may  be),  the  son  of  (here  state 
the  father  and  mother,  if  known;  state  whether  they  are  living  or  dead,  and 
their  residence,  if  known;  if  any  of  these  facts  are  not  known,  so  state),  and 
E.  F.  (write  the  name  of  the  woman  in  full)  of  (here  state  her  residence), 
aged.  ,  .  .years  (race,  as  the  case  may  be),  the  daughter  of  (here  state  the  names 
and  residences  of  the  parents,  if  known,  as  is  required  above  with  respect  to  the 
man).  (If  either  of  the  parties  shall  be  under  eighteen  years  of  age,  the  license 
shall  here  contain  the  following:)  And  the  written  consent  of  G.  H.,  father  (or 
mother,  etc.,  as  the  case  may  be)  to  the  proposed  marriage  having  been  filed 
with  me,  and  there  being  no  legal  impediment  to  such  marriage  known  to  me, 
you  are  hereby  authorized,  at  any  time  within  one  year  from  the  date  hereof, 
to  celebrate  the  proposed  marriage  at  any  place  within  the  said  county.  You 
are  required,  within  two  months  after  you  shall  have  celebrated  such  marriage, 
to  return  this  license  to  me  at  my  office  with  your  signature  subscribed  to  the 
certificate  under  this  license,  and  with  the  blanks  therein  filled  according  to  the 
facts,  under  penalty  of  forfeiting  two  hundred  doll.irs  to  the  use  of  any  person 
who  shall  sue  for  the  same. 

Issued  this.  .  .  .day  of 19.  .  .  .  L.  M., 

Kegister  of  Deed«  of County. 


20S9  MAKRIAGE— ///.   The  License.  Ch.   5n 

Every  register  of  deeds  shall  designate  in  every  marriage  license' 
issued  the  race  of  the  persons  proposing  to  marry  by  inserting  in 
the  blank  after  the  word  "race"  the  words  "white,"  "colored"  or 
"Indian"  as  the  ease  may  be.  The  certificate  shall  be  filled  np  and 
signed  by  the  minister  or  officer  celebrating  the  marriage,  and  also 
be  signed  by  one  or  more  witnesses  present  at  the  marriage,  who 
shall  add  to  their  names  their  places  of  residence,  as  folloM's : 

I.  N.  0.,  an  ordained  minister  of  (here  state  to  what  religious  denomination, 
or  justice  of  the  peace,  as  the  case  may  be),  united  in  matrimony  (here  name  the 

parties),  the  parties  licensed  above,  on  the.  .  .  .day  of 19.  .  . .,  at  the 

house  of  P.   R.,   in    (here  name   the  town,   if   any,   the   township   and   county), 
according  to  law. 

K.  0. 
Witnesses  present  at  the  marriage: 

S.  T.,  of   (here  give  the  residence). 

Code,  s.  1815;   1899,  c,  541,  ss,  1,  2;   1871-2,  c,  193,  s.  G. 

2090.  Penalty  for  issuing  unlawfully.  Every  register  of  deeds 
who  shall  knowingly  or  without  reasonable  inquiry,  personally  or 
by  deputy,  issue  a  license  for  the  marriage  of  any  two  persons  tc 
which  there  is  any  lawful  impediment,  or  where  either  of  the  per- 
sons is  imder  the  age  of  eighteen  years,  without  the  consent  require'! 
by  law,  shall  forfeit  and  pay  two  hundred  dollars  to  any  parent, 
gniardian,  or  other  person  standing  in  loco  pai'entis  who  shall  sue  for 
the  same. 

Code,  s.  1816;  1895,  c,  387;  1901,  c.  722;  R.  C,  c.  C8,  s.  13;  1871-2,  c.  193,  s.  7. 

2091.  Record  of,  kept  by  register  of  deeds;  original  filed.  Ev- 
ery register  of  deeds  shall  keep  a  book  (which  shall  be  furnished 
on  demand  by  the  board  of  county  commissioners  of  his  county) 
on  the  first  page  of  which  shall  be  written  or  printed : 

"Record   of   marriage   licenses   and   of   returns   thereto,    for   tin 

county  of   ,  from  the   ....    day  of   ,  19 .  . . 

to  the  ....  day  of ,  19 .  . ,  both  inchisive." 

In  said  book  shall  be  entered  alphabetically,  according  to  the 
names  of  the  proposed  husbands,  the  substance  of  each  marriage 
license  and  the  return  thereupon  as  follows:  The  book  shall  be 
divided  by  lines  with  columns  which  shall  be  properly  headed,  and 
in  the  first  of  these,  beginning  on  the  left,  .shall  be  put  the  date  of 
issue  of  the  license ;  in  the  second,  the  name  in  full  of  the  intended 
husband,  with  his  residence ;  in  the  third,  his  age ;  in  the  fourth,  his 
race  and  color;  in  the  fifth,  the  name  in  full  of  the  intended  wife, 
with  her  residence;  in  the  sixth,  her  age;  in  the  seventh,  her  race 
and  color ;  in  the  eighth,  the  name  and  title  of  the  minister  or  oflicer 
who  celebrated  the  marriage;  in  the  ninth,  the  day  of  the  celobra- 


L^091  MARRIAGE—///.   The  License.  Ch.   50 

tion ;  in  the  tenth,  the  place  of  the  celebration ;  in  the  eleventh,  the 
names  of  all  or  at  least  three  of  the  witnesses  who  signed  the  return 
as  i^resent  at  the  celebration.  The  original  license  and  return  thereto 
shall  be  filed  and  preserved. 

Code,  s.  1818;   1899,  e.  .541,  s.  3;   1871-2,  c.   103,  s.  9. 

2092.  Penalty  for  failure  to  record  license  and  the  return. 

Any  register  of  deeds  who  shall  fail  to  record,  in  the  manner  above 
prescribed,  the  substance  of  any  marriage  license  issued  by  him, 
or  who  shall  fail  to  record,  in  the  manner  above  prescribed,  the 
substance  of  any  ret^irn  made  thereon,  within  ten  days  after  such 
return  made,  shall  forfeit  and  pay  two  hundred  dollars  to  any 
person  who  shall  sue  for  the  same. 
Code,  s.  1819;   1871-2,  e.  19.3,  s.  10. 


CHAPTER  51. 
MARRIED  WOMEN. 

Sections. 
I.     Separate  estate  of,  2093—2101 

II.     Rights  and  liabilities  of  liusband.s.  2102—2106 

III.  Contracts  between  husband  and  wife,  2107 — 2108 

IV.  Divorce  and  separation,  2109 — 2111 
V.     Free  traders,  2112—2118 

I.      Sepaeate  Estate  of. 

2093.  Secured;  disposed  of  by  will;  conveyed  with  husband's 

written  assent.  The  real  and  personal  property  of  any  female  in 
this  state,  acquired  before  marriage,  and  all  property,  real  and  per- 
sonal, to  which  she  may,  after  marriage,  become  in  any  manner 
entitled,  shall  be  and  remain  the  sole  and  separate  estate  and  prop- 
erty of  such  female,  and  shall  not  be  liable  for  any  debts,  obliga- 
tions or  engagements  of  her  husband,  and  may  be  devised  and 
bequeathed,  and,  with  the  written  assent  of  her  husband,  conveyed 
by  her  as  if  she  were  unmarried. 
.  Const.,  Art.  X,  s.  6. 
Note.     For  purchase  money  mortgage  executed  by  husband  alone,  see  s.  308.5. 

2094.  Can  not  contract  without  husband's  consent.  No  wo- 
man during  her  coverture  shall  be  capable  of  making  any  contract 
to  affect  her  real  or  personal  estate,  except  for  her  necessary  per- 
.sonal  expenses,  or  for  the  suppoi-t  of  the  family,  or  siich  as  may 


2094  MAERIED  WOMEN— 7.  Separate  Estate.  Ch.   51 

be  necessary  in  order  to  pay  her  debts  existing  before  marriage, 
without  the  written  consent  of  her  husband,  unless  she  be  a  free 
trader,  as  hereinafter  allowed. 

Code,  s.  1826;   1871-2,  o.  193,  s.  17. 

Note.     For  laborer's  and  material  liens  against,  see  s.  2016. 

2095.  May  draw  checks.  Bank  deposits  made  by  or  in  the  name 
of  a  married  woman  shall  be  paid  only  to  her  or  on  her  order,  and 
her  check,  receipt  or  acquittance  shall  be  valid  in  law  to  fully  dis- 
charge the  bank  from  any  and  all  liability  on  account  thereof. 

1891,  c.  221,  s.  30;   1893,  c.  344. 

2096.  What  leases  require  joinder  of  husband  and  privy  exam- 
ination. No  lease  or  agreement  for  a  lease  or  sublease  or  assignment 
b^'  any  married  woman,  not  a  free  trader,  of  her  lands  or  tenements, 
or  chattels  real,  to  run  for  more  than  three  years,  or  to  begin  in  pos- 
session more  than  six  months  after  its  execution,  or  any  conveyanc<' 
of  any  freehold  estate  in  her  real  property,  shall  be  valid,  unless 
the  same  be  executed  by  her  and  her  husband,  and  proved  or  acknowl- 
edged by  them,  and  her  free  consent  thereto,  appear  on  her  examina- 
tion separate  from  her  husband,  as  is  now  or  may  hereafter  bo 
required  by  law  in  the  probate  of  deeds  of  femes  covert. 

Code,  s.  1834;   1871-2,  c.  193,  s.  26. 

2097.  Land  of,  not  sold  or  leased  without  their  consent;  hus- 
band's interest  exempt  from  execution.  No  real  estate  belonging 
at  the  time  of  marriage  to  females,  married  since  the  third  Monday 
of  November,  one  thousand  eight  hundred  and  forty-eight,  nor  any 
real  estate  by  them  subsequently  acquired,  nor  any  real  estate 
acquired  on  and  since  the  first  day  of  March,  one  thousand  eiglii 
hundred  and  forty-nine,  by  femes  covert,  Avho  were  such  on  the 
said  third  Monday  of  November,  one  thousand  eight  hundred  and 
forty-eight,  shall  be  subject  to  be  sold  or  leased  by  the  husband  for 
the  term  of  his  omti  life  or  any  less  term  of  years,  except  by  and 
with  the  consent  of  his  wife,  first  had  and  obtained,  to  be  ascertained 
and  eifectuated  by  deed  and  privy  examination,  according  to  the 
lilies  required  by  law  for  the  sale  of  lands  belonging  to  femes  covert. 
And  no  interest  of  the  husband  whatever  in  such  real  estate  shall 
be  subject  to  sale  to  satisfy  any  execution  obtained  against  him ; 
and  every  such  sale  is  hereby  declared  null  and  void. 

Code,  s.  1840:  E.  C,  c.  56;  1848,  c.  41. 

2098.  May  make  a  will.  Every  married  woman  shall  have  power 
to  devise  and  lieqiieatli  her  real  and  iicr.sonal  estate  as  if  sjie  were  a 
feme  sole;  and  her  will  shall  be  proved  as  is  re(]nireil  of  other  wills. 

•      Code,  s.  1839;   1871-2,  o.  193,  s.  31. 


2099  irARKIED  WOMEN—/.  Separate  Estate.  Ch.   51 

2099.  May  insure  husband's  life.  Any  feme  covert  in  her  own 
name,  or  in  the  name  <if  a  trustee  with  his  assent,  may  canse  to  be 
insured  for  any  definite  time  the  life  of  her  husband,  for  her  sole 
and  separate  use,  and  she  may  dispose  of  the  interest  in  the  same 
by  will,  notwithstandiufi'  her  coverture. 

2100.  Separate  savings;  husband's  liability  for  use  of.  The 

savings  from  the  income  of  the  separate  estate  of  the  wife  are  her 
separate  property.  But  no  husband  who,  during  the  coverture  (the 
wife  not  being  a  free  trader  under  this  chapter),  has  received,  with- 
out objection  from  his  wife,  the  income  of  her  separate  estate,  shall 
be  liable  to  account  for  such  receipt,  for  any  greater  time  than 
the  year  next  preceding  the  date  of  a  summons  issued  against  him 
in  an  action  for  siTch  income,  or  next  preceding  her  death. 
Code,  s.  1837;   1871-2,  c.  193,  s.  29. 

2101.  Liable  for  ante-nuptial  debts.  The  liability  of  a  feme 

sole  for  any  debts  owing,  or  contracts  made  or  damages  incurred  by 
her  before  her  marriage  shall  not  be  impaired  or  altered  by  such 
marriage.  "  ""   ' 

Code,  s.   1823;    1871-2,  c.   193,  s.   14. 

II.     Rights  and  Liadilities  of  ITusbands. 

2102.  Tenant  by  the  courtesy,  when.   Every  man  who  hath 

married.,  or  shall  marry  a  wnmau,  and  by  her  have  issue  born  alive, 
shall,  after  her  death  intestate  as  to  the  lands,  tenements  and  here- 
ditaments hereinafter  mentioned,  be  entitled  to  an  estate  as  tenant 
by  the  curtesy  during  his  life,  in  all  the  lands,  tenements  and 
hereditaments  whereof  his  said  wife  was  beneficially  seized  in  deed 
during  the  coverture,  wherein  the  said  issue  was  capable  of  inherit- 
ing, whether  the  said  seizin  was  of  a  legal  or  of  an  equitable  estate ; 
except  that  when  the  wife  shall  have  obtained  a  divorce  a  mensa  et 
thoro,  and  shall  not  be  living  with  her  husband  at  her  death,  or 
when  the  husband  shall  have  abandoned  his  wife,  or  shall  have  mali- 
ciously turned  her  out  of  doors,  and  they  shall  not  be  living  together 
at  her  death ;  or  if  the  husband  shall  have  separated  himself  fi"om 
his  wife,  and  be  living  in  adultery  at  her  death,  he  shall  not  be  ten- 
ant by  the  courtesy  of  her  lands,  tenements  and  hereditaments. 

Code,  s.   1838;    1871-2,  c.   193,  s.  30. 

2103.  Party  to  action  against  wife;  may  defend.  In  all  actions 

brought  against  a  married  woman,  who  is  not  a  free  trader  ("as 
hereinafter  provided  for),  the  sunmions  shall  be  .served  upon  the 
husband   also,   and  on  motion  to  the  court  in  which  the   action   is 

Rev.  Vol.  1—37  641 


2103  MAERIED  WOMEN— 77.  Husbands.  Ch.  51 

pending,  lie  may  be  allowed,  with  her  consent,  to  defend  the  same 
in  her  name  and  behalf,  bnt  no  jndgnient  sliall  be  given  against  him, 
upon  any  liability  claimed  against  her  arising  before  the  marriage 
or  upon  any  contract  made  by  her  alone  after  her  marriage. 

Code,  s.   1824;    1871-2,  c.   193,   s.   15. 

2104.  Discharged  from  defense,  when;  pays  cost.  Whenever 

any  husband  shall  be  allowed   to  defend   fur  bis   wife,   he  may  l)e 
ordered  to  pay  costs  for   any  misconduct,   and   may  be   discharged 
from  the  conduct  of  her  defense,  if  it  shall  appear  to  the  court  that 
his  defense  is  not  bona  fide  in  her  interest. 
Code,  s.  1825;   1871-2,  c.  193,  s.  16. 

2105.  Jointly  liable  for  wife's  torts.  Every  husband  living  with 
his  wife  shall  be  jointly  liable  with  her  for  all  damages  accruing 
from  any  tort  committed  by  her  and  for  all  costs  and  fines  incum'd 
in  any  criminal  proceeding  against  her. 

Code,  s.  1833;   1S71-2,  c.  193,  s.  25. 

2106.  Not   liable  for  ante-nuptial  debts.   No  man  by  marriage 

shall  incur  any  liability  for  any  debts  owing,  or  contracts  made,  or 
for  wrongs  done  by  his  wife  before  the  marriage. 
Code,  s.  1822;   1871-2,  c.  193,  s.  13. 

III.     CoNTEACTS  Between  Husband  and  AVife. 

2107.  Void  without  approval  of  probating  officer.  No  contract 

between  a  husband  and  wife  made  during  coverture  .shall  be  valid 
to  affect  or  change  any  part  of  the  real  estate  of  the  wife,  or  the 
accruing  income  thereof,  for  a  longer  time  than  three  years  next 
ensuing  the  making  of  such  contract,  or  to  impair  or  change  the  body 
or  capital  of  the  personal  estate  of  the  wife,  or  the  accruing  income 
thereof,  for  a  longer  time  than  three  years  next  ensuing  the  mak- 
ing of  such  contract,  unless  such  contract  shall  be  in  Avriting,  and  be 
duly  proved  as  is  required  for  conveyances  of  land ;  and  upon  the 
examination  of  the  wife  separate  and  apart  from  her  husband,  as 
is  now  or  may  hereafter  be  required  by  law  in  the  probate  of  deeds 
of  femes  covert,  it  shall  appear  to  the  satisfaction  of  such  officer 
that  the  wife  freely  executed  such  contract,  and  freely  consented 
thereto  at  the  time  of  her  separate  examination,  and  that  the  same  is 
not  unreasonable  or  injurious  to  her.  The  certificate  of  the  officer 
shall  state  his  conclusions,  and  shall  be  conclusive  of  the  facts 
therein  stated.  But  the  same  may  be  impeached  for  fraud  as  other 
judg-ments  may  be. 
Code,  s.  1835;   1871-2,  c.  193,  s.  27. 


2108        MARRIED  WOMEN—///.   Contrs.,  Husband.        Ch.   51 

2108.  When  valid.  Contracts  between  husband  and  wife  not  for- 
bidden by  the  preceding  section  and  not  inconsistent  with  public 
policy  are  valid,  and  any  persons  of  full  age  about  to  be  married, 
and  subject  to  the  preceding  section,  any  married  persons  may 
release  and  quitclaim  dower,  tenancy  by  the  courtesy,  and  all  other 
rights  which  they  might  respectively  acquire  or  may  have  acquired 
by  marriage  in  the  property  of  each  other ;  and  such  releases  may  be 
pleaded  in  bar  of  any  action  or  proceeding  for  the  recovery  of  the 
rights  and  estates  so  released. 

Code.  s.   1836;   1871-2,  c.   193,  s.  28. 
Note.     See  also,  ss.  963,  964. 

IV.     Divorce  and  Sepakation. 

2109.  Property  rights  after  divorce  a  vinculo.  When  a  mar- 
riage shall  be  dissolved  a  vinculo,  the  parties  respectively,  or  when 
either  party  shall  be  convicted  of  the  felonious  slaying  of  the  other 
or  of  being  accessory  before  the  fact  of  such  felonious  slaying  the 
party  so  convicted  shall  thereby  lose  all  his  or  her  right  to  an  estate 
by  the  curtesy,  or  dower,  and  all  right  to  any  year's  provision  or 
distributive  share  in  the  personal  property  of  the  other,  and  all 
right  to  administer  on  the  estate  of  the  other,  and  every  right  and 
estate  in  the  real  or  personal  estate  of  the  other  party,  which  by  set- 
tlement before  or  after  marriage  was  settled  upon  such  party  in  con- 
sideration of  the  marriage  only. 

Code,  s.  1843;  1871-2,  c.  193,  s.  42. 
Note.     See  also,  s.  7. 

2110.  Effects  of  elopement.  If  any  married  woman  shall  elope 
with  an  adulterer,  or  shall  wilfully  and  without  just  cause  abandon 
her  husband  and  refuse  to  live  with  him,  and  shall  not  be  living 
with  her  husband  at  his  death,  or  if  a  divorce  from  bed  and  board 
be  granted  on  the  application  of  the  husband,  she  shall  thereby  lose 
all  right  to  dower  in  the  lands  and  tenements  of  her  husband,  and 
also  all  right  to  a  year's  provision,  and  to  a  distributive  share  from 
the  personal  property  of  her  husband,  and  all  right  to  administra- 
tion on  his  estate,  and  also  all  right  and  estate  in  the  property  of  her 
husband,  settled  upon  her  upon  the  sole  consideration  of  the  mar- 
riage, before  or  after  marriage ;  and  such  elopement  may  be  pleaded 
in  bar  of  any  action,  or  proceeding,  for  the  recovery  of  such  rights 
and  estates ;  and  in  case  of  such  elopement,  abandonment,  or  divorce, 
the  husband  may  sell  and  convey  his  real  estate  as  if  he  were  unmar- 
ried, and  the  wife  shall  thereafter  be  barred  of  all  claim  and  right 
of  dower  therein. 

Code.  s.  1844;   1893,  c.  153,  ss.  1,  2,  3;   1871-2,  c.  193,  s.  44. 
Note.     See  also,  ss.  7-9. 


2111      MARRIED  WOMEX— ZF.  Divorce,  Separation.      Cb.   51 

2111.  Effect  of  husband  living  in  adultery.  If  any  luisbaiul 

shall  sejiarate  from  his  wife  and  live  in  adultery,  or  shall  wilfully 
and  without  just  cause  abandon  his  wife  and  refuse  to  live  with 
her,  and  such  conduct  on  his  part  is  not  condoned  by  her,  or  if  a 
divorce  from  bed  and  board  be  granted  on  the  application  of  the 
M-ife,  he  shall  thereby  lose  all  right  to  courtesy  in  the  real  property 
of  the  wife,  and  also  all  right  and  estate  of  whatever  character  in 
and  to  her  personal  pi-operty,  as  administrator,  or  otherwise ;  and 
also  any  right  and  estate  in  the  property  of  the  wife  which  may 
have  been  settled  upon  him  solely  in  consideration  of  the  marriage 
by  any  settlement  before  or  after  marriage,  and  in  case  of  such 
adultery  and  abandonment  or  divorce,  the  wife  may  sell  and  con- 
vey her  real  property  as  if  she  were  unmarried,  and  the  husband, 
if  there  has  been  no  condonation  at  the  time  of  the  conveyance,  shall 
thereafter  be  barred  of  all  claim  and  right  to  courtesy  in  such  real 
property. 

Code,  s.  1845;   1893,  c.  153,  s.  4;   1871-2,  c.  193,  s.  45. 


Note.     See  Divorce  and  Alimony. 

V.     Free  Traders. 

2112.  How  created.  Every  married  woman  of  the  age  of  twenty- 
one  years  or  u^nvards,  with  the  consent  of  her  husband,  may  become 
a  free  trader  in  the  manner  following: 

1.  By  ante-nnptial  contract,  proved  and  registered,  as  herein- 
after required ;  or, 

2.  By  her  and  her  husband  signiing  a  writing  in  the  following  or 
some  equivalent  form: 


A.  B.,  of  the  age  of  twenty-one  years  or  upwards,  wife  of  C.  D.,  of 

county,  with  his  consent,  testified  by  the  signature  hereto,  enters  herself  as   a 
free  trader  from  the  date  of  the  registration  hereof. 

(Signed)  A.  ]^ 

C.  D. 
Witness:  E.  F. 

Registered  this ....  da  j'  of 19  ...  . 

The  said  writing  may  be  jn-oved  by  the  subscribing  witness  or 
acknowledged  by  the  parties  before  any  officer  authorized  to  take 
the  probate  of  deeds,  and  shall  be  filed  and  registered  in  the  office 
of  the  register  of  deeds  for  the  county  in  which  the  woman  pro]ioses 
to  have  her  principal  or  only  place  of  business. 
Code,  s.  1827;  1871-2,  c.  193,  ss.  18,  19. 

2113.   Dates  from  registration.   From  the  time  of  the  registra- 
tion of  the  writing  mentioned  in  the  preceding  section,  the  mar- 


2113  MAEEIED  WOMEN— F.  Free  Traders.  Ch.   51 

ried  woman  therein  mentioned  shall  be  a  free  trader,  and  author- 
ized to  contract  and  deal  as  if  she  were  a  feme  sole. 

Code,  s.  1828;   1871-2,  c.  193,  s.  20. 

2114.  Certified  copy  evidence.  A  copy  of  such  writing,  duly 

proved  and  registered  and  certified  by  the  register  of  the  county  in 
which   the   same   is   registered,   shall   be   admissible   in   evidence    as 
certified  copies  of  registered  deeds  are,  or  may  be  allowed  to  be. 
Code,  s.  1820:   1871-2,  c.  193,  s.  21. 

2115.  How  ended;  publication.  The  right  of  a  married  woman 
to  act  as  a  free  trader  may  be  ended  at  any  time  by  an  entry  by 
lier,  or  by  her  attorney,  in  the  margin  of  the  registration  of  the 
writing  above  mentioned,  to  the  effect  that  from  the  date  of  such 
marginal  entry,  she  ceases  so  to  act,  and  by  publication  to  that 
eifect  weekly  for  three  weeks  in  some  newspaper  published  in  the 
county  in  which  she  had  her  principal  or  only  place  of  business,  or 
if  there  shall  be  none  so  published,  then  in  any  other  convenient 
newspaper.  But  such  entry  and  publication  shall  not  impair  any 
liabilities  incurred  previously  thereto,  nor  prevent  such  married 
woman  from  becoming  liable  afterwards  to  any  person  whom  she 
may  fraudulently  induce  to  deal  with  her  as  a  free  trader. 

Code,  s.   1S30;   1871-2,  e.   193,  s.  22. 

2116.  Living  separate  from  husband;  husband  idiot  or  lunatic. 

Every  woman  who  shall  be  living  separate  from  her  husband,  either 
under  a  judgment  of  divorce  by  a  competent  court,  or  under  a  deed 
of  separation,  executed  by  said  husband  and  wife,  and  registered  in 
the  county  in  which  she  resides,  or  whose  husband  shall  have  been 
declared  an  idiot  or  a  lunatic,  shall  be  deemed  and  held,  from  the 
docketing  of  such  judgment,  or  from  the  registration  of  such  deed, 
or  from  the  date  of  such  idiocy  or  lunacy  and  during  its  continuance, 
a  free  trader,  and  shall  have  power  to  convey  her  personal  estate 
and  her  real  estate  without  the  assent  of  her  husband. 

Code,  s.   1831;   1871-2,  c.  193,  s.  23;   1880,  c.  35. 

2117.  Abandoned  by  husband.  Every  woman  whose  husband 
shall  abandon  her,  or  shall  nuiliciously  turn  her  out  of  doors,  shall 
be  deemed  a  free  trader,  so  far  as  to  be  competent  to  contract  and 
be  contracted  with,  and  to  bind  her  separate  property,  but  the  lia- 
bility of  her  husband  for  her  reasonable  support  shall  not  thereby 
be  impaired,  and  she  shall  have  power  to  convey  her  personal  estate 
and  her  real  estate  without  the  assent  of  her  husband. 

Code,  s.  1832;  1871-2,  c.  193,  s.  24. 

2118.  Persons  trading  without  disclosing  interest;  married 
woman  declared  free  trader;  burden  of  proof.  If  any  iiorson  or 


2118  MARRIED  WOMEN— 7.  Free  Traders.  Ch.   51 

persons  shall  transact  business  as  trader  or  mercliaut,  with  the  addi- 
tion of  the  words  "factor,"  "agent,"  "and  company"  or  "and  Co.," 
or  shall  conduct  such  business  under  any  name  or  style  other  than 
his  own,  except  in  case  of  corporation,  and  fail  to  disclose  the  name 
of  his  principal  or  partner  by  a  sign  placed  conspicuously  at  the 
place  wherein  such  business  is  conducted;  or  if  any  married  woman 
shall  conduct  siich  business  through  her  husband  or  any  other  agent, 
or  if  any  husband  or  agent  of  any  married  woman  shall  conduct  such 
business  for  her  without  displaying  the  Christian  name  of  such 
married  woman,  and  the  fact  that  she  is  a  feme  covert,  by  a  sign 
placed  conspicuously  at  the  place  wherein  such  business  is  conducted, 
then  all  the  property,  stock  of  goods  and  merchandise,  and  choses  in 
action  purchased,  used  and  contracted  in  the  course  of  such  business 
shall,  as  to  creditors,  be  liable  for  the  debts  contracted  in  the  course 
of  such  business  by  the  person  in  charge  of  same.  Any  married  wo- 
man conducting  such  business  as  aforesaid  without  complying  with 
the  jjrovisions  of  this  section  shall  for  all  purposes  be  deemed  and 
treated,  as  to  all  debts  contracted  in  the  course  of  such  business,  as  a 
free  trader  as  fully  as  if  she  had  in  all  respects  complied  with  the  pro- 
visions of  this  subchapter:  Provided,  this  section  shall  not  apply  to 
any  person  transacting  business  under  license  as  an  auctioneer, 
broker  or  commission  merchant.  In  all  actions  under  this  section 
it  shall  be  ineimibent  on  such  trader,  merchant  or  married  woman  to 
prove  compliance  with  the  same. 
190.5,  c.  443. 


Note.     For  marriage  settlements,  see  ss.  963.  964,  2108. 

For  effect  of  marriage  settlement  on  creditors,  see  Conveyances,  s.  963. 

For  judgment  entered  against  married  women,  see  Civil  Procedure,  s.  .563. 


CHAPTER  52. 
MILLS. 


Sections. 

I. 

II. 

III. 

IV. 

Public, 

Water  mills  established. 

Dams;  backing  and  convoying 

Damages, 

water, 

2119—2121 
2122 — 2130 
2131—2140 
2141—214.5 

2119.   What    are.   Every   water  grist-mill,   steam   mill,   or   wind 
mill,  that  shall  grind  for  toll,  shall  be  a  ]iul)]i('  mill. 
Code,  s.  1846;  R.  C.  c.  71,  s.  1;   1777,  c.  122,  s.  1. 


2120  MILLS— 7.  Puhlic.  Ch.  52 

2120.  Grind  according  to  turn;  toll  taken.  All  millers  of  pub- 
lic mills  shall  grind  according  to  turn,  and  shall  well  and  sufficiently 
grind  the  grain  brought  to  their  mills,  if  the  water  will  permit,  and 
shall  take  no  more  toll  for  grinding  than  one-eighth  part  of  the 
Indian  corn  and  wheat,  and  one-fourteenth  part  for  chopping  grain 
of  any  kind ;  and  every  miller  and  keeper  of  a  mill  making  default 
therein  shall,  for  each  offense,  forfeit  and  pay  five  dollars  to  the 
party  injured:  Provided,  that  the  owner  may  grind  his  own  grain 
at  any  time :  Provided  further,  that  owners  of  public  mills  in  Per- 
son county,  when  operated  by  gasoline,  steam  or  any  other  motive 
power,  may  charge  as  toll  one-seventh  part  of  wheat  and  Indian 
corn. 

Code,  s.  1S47;  R.  C,  c.  71.  s.  C;  1777,  c.  122,  s.  10;  1793,  c.  402;  1905,  c.  094. 

2121.  IVIeaSUreS  kept,  toll  by  weight.  All  millers  shall  keep  in 
their  mills  the  following  measures,  namely,  a  half-bushel  and  peck 
of  full  measui'e,  and  also  proper  toll-dishes  for  each  measure;  but 
the  toll  allowed  by  law  may  be  taken  by  weight  or  measure  at  the 
option  of  the  miller  and  customer. 

Code,  s.  1848;   1885,  e.  202;  R.  C,  c.  71,  s.  7;   1777,  c.  122,  s.  11. 


Note.     Keeping  fal.se  toll-dishes  a  misdemeanor,  see  s.  .3679. 
II.     Water  Mills  Established. 

2122.  Procedure.  Any  person  wishing  to  build  a  water  mill,  who 
hath  land  on  only  one  side  of  a  stream,  shall  issue  a  summons 
returnable  to  the  superior  court  of  the  county  in  which  the  land 
sought  to  be  condemned,  or  some  part  of  it,  lies,  against  the  persons 
in  possession  and  the  owners  of  the  land  on  the  opposite  side  of 
the  stream,  and  against  such  others  as  have  an  interest  in  the  con- 
troversy, and  the  procedure  shall  be  as  is  provided  in  other  special 
proceedings,  except  so  far  as  the  same  may  be  modified  by  this 
chapter. 

Code,  s.   1849;    1868-9,  o.   158,  s.   1. 

2123.  Commissioners  appointed,  how.  If  no  just  cause  should 

be  shown  against  the  building  of  such  mill,  the  court  shall  appoint 
three  freeholders,  one  of  whom  shall  be  chosen  by  the  plaintift', 
another  by  the  defendants,  and  the  third  by  the  court,  or  if  the  plain- 
tiff or  defendants  shall  refuse  or  fail,  or  unreasonably  delay  to 
name  a  commissioner,  the  court  shall  name  one  in  lieu  of  such  delin- 
quent party.  These  commissioners  may  be  changed  from  time  to  time 
by  permission  of  tiie  court  for  just  cause  shown. 

Code,   s.   1850;    1868  9,  c.   1.58,   s.  2. 


2124  illLLS— 77.  EsiahJtshcd.  Cli.  52 

2124.  What  commissioner  presides;  penalty  for  failure  to  per- 
form duty.  The  third  commissioner  shall  cause  the  others  to  he 
notified  of  the  time  and  place  of  meeting,  and  shall  preside  at  their 
meetings.  They  may,  if  necessary,  summon  and  examine  witnesses, 
who  shall  he  sworn  by  the  presiding  commissioner;  any  commis- 
sioner named  by  or  for  either  of  the  parties,  who,  without  just  cause, 
shall  fail  to  attend  any  meeting  notified  by  the  president,  shall  for- 
feit and  pay  to  the  opposite  party  fifty  dollars ;  and  if  the  president 
shall,  in  like  manner,  unreasonably  delay  to  notify  the  other  commis- 
sioners of  a  meeting,  or  fail  to  attend  one  that  is  appointed,  he  shall 
forfeit  and  pay  to  the  plaintiff  fifty  dollars,  and  to  the  defendant  a 
like  sum. 

Code,  s.  1851;   18(;S-9,  c.   158,  s.  3. 

2125.  Duty  of  commissioners.  The  commissioners  shall  be  sworn 
b}'  some  officer  qualified  to  administer  an  oath  to  act  impartially 
between  the  parties,  and  to  perform  the  duties  herein  imposed  on 
them  honestly  and  to  the  best  of  their  ability.  They  shall  view 
the  premises  where  the  mill  is  proposed  to  be  built,  and  shall  lay 
off  and  value  a  portion  of  the  land  of  the  plaintiff,  not  to  exceed  one 
acre  in  area,  and  an  equal  area  of  the  land  of  the  defendants  o]ipo- 
site  thereto,  and  report  their  proceedings  to  the  court  within  a  rea- 
sonable time,  not  exceeding  sixty  days. 

Code,  s.  1852;   1868-9.  c.   158,  s.  4. 

2126.  Report  contains  what.  The  report  of  the  commissioners 
shall  set  forth — 

1.  The  location,  quantities  and  value  of  the  several  areas  laid  off 
by  them. 

2.  Whether  either  of  them  includes  houses,  gardens,  orchards  or 
other  immediate  conveniences. 

3.  Whether  the  proposed  mill  will  overflow  another  mill  or  create 
a  nuisance  in  the  neighborhood. 

4.  Any  other  matter  upon  which  they  shall  have  been  directed 
by  the  court  to  report,  or  which  they  may  think  necessary  to  the 
doing  of  full  justice  between  the  parties. 

Code,   s.   1853;    1808-9,  c.   158,  s.  5. 

2127.  When  mill  not  allowed.  Tf  the  area  laid  off  on  the  land  of 
either  party  take  away  houses,  gardens,  orchards,  or  other  immediate 
conveniences;  or  if  the  mill  proposed  will  overflow  another  mill, 
or  will  create  a  nuisance  in  the  neighhovhood,  the  murt  shall  nut 
allow  the  propo.sed  mill  to  be  built. 

Code,  s.   18.54;    1808-9,  c.   1.58,  s.  0. 


2128  MILLS—//.  Esiahlished.  Ch.  52 

2128.  Power  of  court  on  return  of  report.  If  the  report  be  in 

favor  of  building  tlie  proposed  mill,  and  is  confirmed,  then  the  court 
may,  in  its  discretion,  allow  either  the  plaintiff  or  defendant  to 
erect  such  mill  at  the  jilace  proposed,  and  shall  order  the  costs,  and 
the  value  of  the  opposite  area,  to  be  paid  by  the  party  to  whom 
such  leave  shall  be  granted ;  and  upon  such  jjayment,  the  party  to 
whom  such  leave  shall  be  gTanted  shall  be  vested  with  title  in  fee 
to  the  opposite  area.  Such  payment  may  be  made  into  court  for 
ihe  use  of  the  parties  entitled  thereto. 

Code,   s.   1855;    1868-9,  c.   158,  s.   7. 
Note.     For  costs,  see  s.  1269. 

2129.  Built  when;  kept  up.  The  person  to  whom  leave  shall  be 
granted  shall,  within  one  year,  begin  to  build  such  water  mill, 
and  shall  finish  the  same  within  three  years ;  and  thereafter  keep 
it  up  for  the  use  and  ease  of  such  as  shall  be  customers  to  it; 
otherwise,  the  said  land  shall  return  to  the  person  from  whom  it 
was  taken,  or  to  such  other  person  as  shall  have  his  right,  unless  the 
time  for  finishing  the  mill,  for  reasons  approved  by  the  court,  be 
enlarged.  -  -  -     ■ 

Code,  s.  1856;   1868-9,  c.  158,  s.  8. 

2130.  Time  in  which  must  be  rebuilt.  If  any  water  mill  belong- 
ing to  any  person  not  being  of  age,  a  married  woman,  or  of  unsound 
mind,  or  imprisoned,  falls,  burns,  or  is  otherwise  destroyed,  such 
person  and  his  heirs  shall  have  three  years  to  rebuild  and  repair 
the  same,  and  any  person  under  any  disability  aforesaid  shall  have 
three  years  from  the  removal  of  the  disability. 

Code,  s.  1857;   190.3,  e.  74,  s*.  1,  2;   1868-9,  c.  158,  s.  9. 

III.     Dam.s  ;   Racking  and  Conveyinc;  Water. 

2131.  Procedure.  Any  person  who  has  land  on  one  or  both  sides 
of  a  stream  and  wishes  to  biiild  a  water  mill  or  has  a  water  mill 
already  built  and  may  find  it  necessary  for  the  better  operation  of 
said  mill  or  the  building  of  the  said  mill  to  convey  water  either  to 
or  from  his  mill  by  ditch,  water-way,  drain,  mill-race  or  tail-race,  or 
in  any  other  manner,  over  the  lands  of  any  other  person,  or  erect  a 
dam  to  pond  said  water  over  the  lands  of  any  other  person,  or  raise 
any  dam  already  built,  may  make  application  by  petition  in  writing 
to  the  clerk  of  the  superior  court  of  the  county  in  which  the  said 
lands  to  be  affected,  or  a  greater  part  thereof,  are  situated,  for  the 
right  to  so  convey  the  said  water  or  pond  the  same  by  the  erection  of 
a  dam  or  the  raising  of  any  dam  already  built ;  and  the  procedure 
shall  be  as  in  other  special  proceedings. 

1905,  c.  534,  s.  la,  k. 

649 


k 


2132    MILLS—///.  Dams;  Backing  and  Conveying  Water.   Ch.   5i' 

2132.  Petition  to  contain,  what.  The  petition  shall  specify  the 
lands  to  be  atl'ected,  the  name  of  the  owner  of  said  lands  and  the 
character  of  the  ditch,  race,  water-way  or  drain  or  pond  intended  to 
be  made,  and  said  owner  or  owners  shall  be  made  parties  defendant. 
The  petition  shall  state  the  distance  desired  to  be  condemned  on  each 
side  of  the  ditch,  water-way  or  drain  to  be  constructed  or  erected,  and 
not  more  than  thirty  feet  from  each  bank  can  be  condemned. 

in05,  c.  534,  s.  1,  b. 

2133.  Commissioners  appointed.  Upon  the  hearing  of  the  peti- 
tion, if  the  prayer  thereof  be  granted,  the  clerk  shall  appoint  three 
disinterested  persons  qualified  to  act  as  jurors,  and  not  connected 
either  by  blood  or  marriage  with  the  parties,  appraisers  to  assess 
the  damage,  if  any,  that  will  accrue  to  the  said  lands  by  the  contem- 
plated work,  and  shall  issue  a  notice  to  them  to  meet  upon  the  prem- 
ises on  a  day  specified,  not  to  exceed  ten  days  from  the  date  of  said 
notice. 

1905,  c.  534,  s.  1,  c. 

2134.  Commissioners;  oatii  and  duty.   The  appraisers  having 

met,  shall  take  an  oath  before  some  officer  qualified  to  administer 
oaths  to  faithfiilly  perform  their  duty  and  to  do  impartial  justice 
in  the  case,  and  shall  then  examine  all  the  lands  in  any  way  to  be 
aflFected  by  the  said  work  and  assess  the  damage  thereto  and  make 
report  thereof  imder  their  hands  and  seals  to  the  clerk  from  whom 
the  notice  issued,  who  shall  have  power  to  confirm  the  same. 

1005,  p.  534,  s.  1,  d. 

2135.  Damages  assessed.  In  determining  the  amount  of  such 
compensation  to  be  paid  to  the  owners  of  the  said  lands  and  assessing 
the  damages  thereto  by  reason  of  the  erection  or  construction  of  such 
water-way,  ditcb,  drain  or  dam  they  shall  make  an  allowance  or 
deduction  on  account  of  any  benefits  which  the  parties  in  interest 
may  derive  from  the  construction  or  erection  of  such  water-way, 
ditch,  drain  or  dam,  and  shall  ascertain  the  damages,  as  near  as  may 
be,  to  the  extent  it  may  damage  each  acre  of  land  so  appropriated 
or  occupied  by  the  said  mill-owner.  The  damages  assessed  by  the 
appraisers  under  this  subchapter  shall  include  all  damages  that  the 
owners  shall  thereafter  suffer  or  be  entitled  to  by  reason  of  the  con- 
struction of  the  said  water-ways,  races,  ditches  or  dams. 

190.5,  c.  534,  s.  1,  e,  m. 

2136.  When  mill  not  allowed.  If  the  area  laid  off  on  the  lands 
of  cither  party  take  away  houses,  gardens,  orchards  or  immediate 
conveniences,  or  if  the  mill  proposed  or  erected  will  overflow  another 
mill  or  pond  water  within  two  hundred  feet  of  another  mill  or  will 


I'l.'JG  MILLS — ///.  Dams;  Backing  and  Conveying  Water.   Ch.   52 

ii\"ei-flow  or  pond  water  within  two  hundred  feet  of  the  mill-site  or 
|ireinises  of  a  person  who  has  the  right  to  rebuild  a  mill  under  sec- 
lion  two  thousand  one  hundred  and  thirty  or  by  the  authority  of  law, 
I'Y  the  mill  create  a  nuisance  in  the  neifrhborhood,  the  court  shall  not 
.illow  the  report  of  the  appraisers  to  be  atfirmed. 

1905,  c.  534,  s.  1,  g. 

2137.  Rights  of  petitioner.  After  the  return  of  the  appraisers 
and  the  conlirmation  thereof  the  petitioner  shall  have  full  right  and 
p'lwer  to  enter  upon  said  lands  and  make  such  ditches,  water-ways, 
drains,  races  or  other  necessary  works  and  construct  such  dams: 
Provided,  he  has  first  paid  or  tendered  the  damage  assessed  as  above 
to  the  owner  of  such  lands  or  his  known  or  recognized  agent  in  this 
state.  If  the  o-wner  be  a  nonresident  and  have  no  known  agent  in 
this  state  the  amount  so  assessed  shall  be  paid  by  the  petitioner  into 
the  office  of  the  clerk  of  the  superior  court  of  the  county  for  the  use 
of  such  owner:  Provided  further,  that  the  mill-owner  shall  not  be 
compelled  to  pay  said  damages  so  assessed  unless  he  shall  enter  upon 
such  lands  and  make  ditches,  drains  or  other  works  or  erect  siich 
dam. 

1905,  c.  534,  s.  1,  f. 

2138.  Mills  not  erected  when;  abatement  of  nuisance.    No 

other  person  shall  have  the  right  to  erect  or  maintain  any  dam,  ditch, 
water-way,  drain  or  race  that  will  overflow  or  pond  water  within  two 
hundred  feet  of  the  mill-site  or  premises  of  any  person  or  body  cor- 
porate who  shall  have  erected  a  mill,  dam,  ditch,  drain  or  race  under 
the  provisions  of  this  chapter,  or  of  any  mill-site  owned  by  any  per- 
son who  may  have  the  right  to  rebuild  a  mill  under  section  two 
thousand  one  hundred  and  thirty,  or  by  the  authority  of  law,  and 
when  any  peison  shall  violate  the  provisions  of  this  section  the 
owmer  of  said  mill  or  mill-site  shall  have  a  right  of  action  against 
said  person  to  tear  down  said  dam  or  other  works  so  built  or  erected 
to  the  extent  herein  forbidden  and  to  abate  the  same  as  prescribed 
by  law  for  the  abatement  of  nuisances. 

1905,  c.  534,  s.  1,  h. 

2139.  Report  registered.  The  petitioner,  or  any  other  person 
interested,  may  have  the  said  assessment  registered  upon  the  certifi- 
cate of  the  clerk  and  shall  pay  the  register  the  usual  legal  fees  for 
registering  such  instruments  in  his  office. 

1905,  c.  534,  s.  1,  i. 

2140.  Fees  of  appraisers.  Each  appraiser  shall  be  entitled  fi) 
a  fee  of  one  dollar  for  each  day  actually  employed  in  making  said 
assessment,  to  be  paid  by  the  petitioner. 

1905,  c.  534,  s.  1,  j. 

f).-)l 


2141  MILLS— ZT'.  Damages.  Cli.   52 

IV.     Damages. 

2141.  For  erection  of  mills;  procedure.  Any  person  conceiving 

himself  injured  by  the  erection  of  any  gristmill,  or  mill  for  other 
useful  purposes,  may  issue  his  smnmons  returnable  before  the  judge 
of  the  superior  court  of  the  county  where  the  endamaged  land,  or 
any  jaart  thereof  lies,  against  the  persons  authorized  to  be  made 
parties  defendant.  In  his  complaint  he  shall  set  forth  in  what 
respect  and  to  what  extent  he  is  injured,  together  with  such  other 
matters  as  may  be  necessary  to  entitle  him  to  the  relief  demanded. 
The  court  shall  then  proceed  to  hear  and  determine  all  the  ques- 
tions of  law  and  issues  of  fact  arising  on  the  i)leadings  as  in  other 
civil  actions. 

Code,  s.   18oS;    1876-7,  c.   197,  s.   1. 

2142.  Dams,  when  abated  as  nuisances.  When  damages  shall 

be  recovered  in  final  judgment  in  sticli  ei\'il  actions  and  execution 
shall  issue  and  be  returned  unsatisfied,  and  the  jdaintiff  is  not  able 
to  collect  the  same  either  from  the  insolvency  of  the  defendant  or 
by  reason  of  the  exem]itions  allowed  to  defendant,  the  judge  shall, 
on  the  facts  being  made  to  appear  before  him  by  affidavit  or  other 
evidence,  order  that  the  dam,  or  portion  of  the  dam,  or  other  cause 
creating  the  injury,  shall  be  abated  as  a  nuisance,  and  he  .shall 
have  power  to  make  all  necessary  orders  to  effect  this  purpose. 
Code,  s.   1859;   1876-7,  c.   197,  s.  3. 

2143.  Judgment  binding  five  years,  when,  a  judgment  giving 

to  the  plaintifl^  an  annual  sum  by  way  of  damages  shall  be  binding 
between  the  parties  for  five  years  from  the  issuing  of  the  .summons, 
if  the  mill  is  kept  up  during  that  time,  unless  the  damages  .shall  be 
increased  by  raising  the  water  or  otherwise. 
Code,  s.   18G0;   1808-9,  c.   158,  s.  12. 

2144.  Judgment  binding  one  year,  when.  In  all  cases  where  the 

final  judginent  of  the  court  shall  assess  the  yearly  damage  of  the 
])laintifF  as  high  as  twenty  dollars,  nothing  in  this  chapter  contained 
shall  be  construed  to  prevent  the  ]daintiff,  his  heirs  or  assigns,  fmui 
suing  as  heretofore,  and  in  such  case,  the  final  judgment  aforesaid 
shall  be  binding  only  for  the  year's  damage  preceding  the  issuing 
of  the  summons. 
Code,  s.  18(il;   1868-9,  c.  158,  a.  14. 

2145.  Judgment  against  plaintiff;  costs,  how  paid.  If  the  final 

pidgment  of  the  cf)urt  shall  be  that  the  jilainliff  li;itli  sustained  nn 
damage,  he  shall  ]iay  the  costs  of  his  proceeding;  but  if  the  final 
judgment  .shall  be  in  favor  of  the  plaintiff,  he  shall  have  execution 


2145  MILLS— 7T'.  Damages.  Ch.  52 

against  the  defendant  for  one  year's  damage,  preceding  the  issuing 
of  the  summons,  and  for  all  costs:  Provided,  that  if  the  damage 
adjudged  do  not  amount  to  five  dollars,  the  plaintiff  shall  recover 
no  more  costs  than  damages.  And  if  the  defendant  do  not  annually 
l^ay  the  plaintiff,  his  heirs  or  assigns,  before  it  falls  due,  the  sum 
adjudged  as  the  damages  for  that  year,  the  plaintiff  may  sue  out 
execution  for  the  amount  of  the  last  year's  damage,  or  any  part 
thereof  which  may  remain  unpaid. 
Code,  a.  1SG2;   1868-9,  c.  158,  s.  15. 


CHAPTEE  53. 
NAMES  OF  PERSONS. 

(Sections  2146—2150.) 

2146.  Can  not  be  altered  by  legislature.  The  general  assembly 

shall  not  have  iiower  to  pas^  any  private  law  to  alter  the  name  of  any 
person,     *     *     *     but  shall  have  power  to  pass  general  laws  regu- 
lating the  same. 
Const.,  Art.  II,  s.   11. 

2147.  Application  to  alter  before  clerk  superior  court;  notice. 

Any  person  wishing,  for  good  cause  shown,  to  change  his  name, 
shall  file  his  application  before  the  clerk  of  the  superior  court  of 
the  county  in  which  he  may  live,  first  having  given  ten  days'  notice 
of  said  application  by  publication  at  the  courthouse  door,  and  in 
said  application  shall  state  the  true  name  of  the  applicant,  the  name 
desired  to  be  adopted,  the  reasons  why  said  change  is  desired,  and 
that  his  name  has  never  been  changed  before  by  law.  No  person 
shall  be  allowed  to  change  his  name  under  this  chapter  but  once, 
isni,  c.  145,  ss.  1,  2. 

2148.  Proof  of  good  character  filed.  Said  apiilicant  shall  also 
file  with  said  petition  proof  of  his  good  character,  which  proof  must 
be  made  by  at  least  two  citizens  of  said  county  who  know  the  stand- 
ing of  said  applicant. 

1891,  c.  145,  s.  3. 

2149.  Change  ordered  by  clerk.  Upon  said  application  being 

made  upon  the  verified  petition  of  the  applicant  and  the  ju'oof  of 
good  character,  it  shall  be  the  duty  of  the  clerk  of  the  su]ioriiu-  court, 


2149  XAMES  OF  PERSONS.  Ch.  5:; 

if  he  thinks  good  and  siifficient  reason  exists  for  the  change  of  name, 
to  issue  an  order  changing  the  name  of  the  applicant  from  his  tnio 
name  to  the  name  sought  to  be  adopted,  and  when  said  order  is 
made  and  the  applicant's  name  changed  said  applicant  shall  be  enti 
tied  to  all  the  privileges  and  protection  under  said  new  name  as  he 
would  have  been  under  the  old  name. 

1801,  c.   145,  s.  4. 

2150.  Clerk  to  issue  certificate;  record  made.  The  clerk  shall 

issue  to  the  applicant  a  certificate  under  his  hand  and  seal  of  office, 
stating  the  change  made  in  said  applicant's  name,  and  shall  also 
record  said  application  and  order  on  the  docket  of  special  proceed- 
ings in  his  court. 
1891,  c.  145,  s.  5. 


Note.     For  corporate  names,  see  Corporations,  s.  11.37. 

For  protection  of  names,  see  Trademarks. 

For  change  of  name  of  minor  child,  see  s.  177. 

For  fraudulent!}'  trading  under  corporate  or  partnership  name,  see  s.  2118. 


2151  NEGOTIABLE  INSTS.— 7.  NegoliahilUy. 


Ch.   54 


CHAPTER  54. 
NEGOTIABLE  I  INSTRUMENTS. 

Sections. 

I.  Requirdiients  for  negotiability,  2151 — 2160 

II.  Date.  '  2161—2163 

III.  Incomplete,  2164—2166 

IV.  Signature.  2167—2171 
V.  Consideration,  2172—2177 

VI.  Indorsement.  2178—219!) 

VII.  Rights  of  holder,  2200—2208 

VIII.  Liability  of  parties,  2209—2218 

IX.  Presentment  for  payment,  2219—2238 

X.  Notice  of  dishonor.  2239—2268 

XI.  Discharge  of,  2269—2275 

XII.  Bills,  form  and  interpretation,  2276 — 2281 

XIII.  Acceptance,  2282—2292 

XIV.  Presentment  for  acceptance,  229.3 — 2301 
XV.  Protest,  2302—2310 

XVI.  Acceptance  for  honor,  2311 — 2320 

XVII.  Payment  for  honor,  2321—2327 

XVIIT.  Bills  in  a  set,  2328—2333 

XIX.  Promissory  notes  and  checks.  2334 — 2339 

XX.  General  provisions,  2340—2346 


I.     Requirements  for  Negotiability. 


2151.  What  to  contain.  An  in.strument  to  be  negotiable  mnst 
conform  to  the  follo^ving  requirements:  (1)  It  mnst  be  in  writing 
and  signed  by  the  maker  or  drawer;  (2)  must  contain  an  uncon- 
ditional promise  or  order  to  pay  a  sum  certain  in  money;  (3)  must 
be  payable  on  demand  or  at  a  fixed  or  determinable  future  time; 
(4)  must  be  payable  to  the  order  of  a  specified  person  or  to  bearer; 
and  (5)  where  the  instrument  is  addressed  to  a  drawee,  he  must  be 
named,    or   otherwise    indicated   therein    with    reasonable    certainty. 

1899,  c.  733,  s.   1. 

2152.  What  constitutes  a  sum  certain.  The  sum  payable  is  a 

sum  certain  within  the  meaning  of  this  chapter,  although  it  is  to 
be  paid  (1)  with  interest;  or  (2)  by  stated  installments;  or  (3)  by 
stated  installments  with  a  provision  that  upon  default  in  payment  of 
any  installment  the  whole  shall  become  due;  or  (4)  with  exchange, 
whether  at  a  fixed  rate  or  at  the  current  rate;  or  (5)  with  costs  of 
collection  or  an  attorney's  fee  in  case  payment  shall  not  be  made 
at  maturity. 
1899,  c.  733,  s.  2. 


2153  jS^EGOTIABLE  IXSTS.— /.  XegoiiahUUij.  Ch.   .VI 

2153.  What  promise  unconditional.  An  unqualified  order  or 
promise  to  jiay  is  uncniiditioual  witliin  tlie  nieaniui!;  of  this  chapter, 
though  coupled  with  (1)  an  indication  of  a  particular  fund  out  of 
which  reimbursement  is  to  be  made,  or  a  particular  account  to  be 
debited  with  the  amount;  or  (2)  a  statement  of  the  transaction  which 
gives  rise  to  the  instrument.  Bvit  an  order  or  promise  to  pay  out  of 
a  partictilar  fund  is  not  unconditional. 

1899,  e.  733.  s.  3. 

2154.  Additional  promise  makes  non-negotiable;  exceptions. 

An  instrument  which  contains  an  order  or  promise  to  do  any  act  in 
addition  to  the  jiayment  of  money  is  not  negotiable.  But  the  nego- 
tiable character  of  an  instrument  otherwise  negotiable  is  not  affected 
by  a  provision  which  (1)  authorizes  the  sale  of  collateral  securities 
in  case  the  instrument  be  not  paid  at  maturity;  or  (2)  authorizes  a 
confession  of  judginent  if  the  instrument  be  not  paid  at  maturity : 
or  (3)  waives  the  benefit  of  any  law  intended  for  the  advantage  or 
protection  of  obligor;  or  (4-)  gives  the  holder  an  election  to  require 
something  to  be  done  in  lieti  of  payment  of  money.  But  nothiui: 
in  this  section  shall  validate  any  provision  or  stipulation  otherwise 
illegal. 

1899,  c.  73;5,  s.  5. 

2155.  Things  which  do  not  affect.  The  validity  and  negotiable 
character  of  an  instrument  are  not  atifected  by  the  fact  that  (1)  it 
is  not  dated;  or  (2)  does  not  specify  the  value  given,  or  that  any 
value  has  been  given  therefor;  or  (3)  does  not  specify  the  place 
where  it  is  drawn  or  the  place  where  it  is  payable;  or  (4)  bears  a 
seal;  or  (5)  designates  a  particular  kind  of  current  money  in  which 
payment  is  to  be  made.  Btit  nothing  in  this  section  shall  alter  or 
repeal  anj'  statute  requiring  in  certain  cases  the  miturc  of  the  con- 
sideration to  be  stated  in  the  instrument. 

1899,  c.  73.3,  s.  6. 

2156.  What  is  a  determinable  future  time.  An  instrument  is 

payable  at  a  determinable  future  time,  within  the  meaning  of  this 
chapter,  which  is  expressed  to  be  jiayable  (1)  at  a  fixed  ])oriod  after 
date  or  sight;  or  (2)  on  or  before  a  fixed  or  determinable  future 
time  specified  therein;  or  (3)  on  or  at  a  fixed  period  after  the  occur 
rence  of  a  specified  event  which  is  certain  to  happen,  though  the 
time  of  happening  be  tmcertain.  An  instrument  ])ayable  upon  a 
contingency  is  not  negotiable,  and  the  happening  of  the  event  does 
not  cure  the  defect. 
1899,  c.  733,  s.  4. 


2157  NEGOTIABLE  INSTS.— /.  Xegotiahiliiij.  Ch.  51 

2157.  When  payable  on  demand.  Au  instrument  is  payable  on 
demand  {1)  when  it  is  expressed  to  be  payable  on  demand,  or  at 
sight  or  on  presentation;  or  (2)  in  which  no  time  for  payment  is 
expressed.  Where  an  instrument  is  issued,  accepted  or  indorsed 
when  overdue,  it  is,  as  regards  the  person  so  issuing,  accepting  or 
indorsing  it,  payable  on  demand. 

1899,  c.  733,  s.  7. 

2158.  What  are  payable  to  order.  The  instrument  is  payable 
to  order  when  it  is  drawn  payable  to  the  order  of  a  specified  person, 
or  to  him  or  his  order.  It  may  be  di'awn  payable  to  the  order  of 
(1)  a  payee  who  is  not  maker,  drawer  or  drawee;  or  (2)  the  drawer 
or  maker;  or  (3)  the  drawee;  or  (4)  two  or  more  payees  jointly; 
or  (5)  one  or  some  of  several  payees,  or  (6)  the  holder  of  an  office 
for  the  time  being.  When  the  instrument  is  payable  to  order,  the 
payee  must  be  named  or  otherwise  indicated  therein  with  reasonable 
certainty. 

1899,  c.  733,  s.  8. 

2159.  What  are  payable  to  bearer.  The  instrument  is  payable 

to  bearer  (1)  when  it  is  expressed  to  be  so  payable;  or  (2)  when  it 
is  payable  to  a  person  named  therein  or  to  bearer;  or  (3)  when  it  is 
payable  to  the  order  of  a  fictitious  or  nonexisting  person,  and  such 
fact  was  known  to  the  person  making  it  so  payable;  or  (4)  when  the 
name  of  the  payee  does  not  purport  to  be  the  name  of  any  person; 
or  (5)  when  the  only  or  last  indorsement  is  an  indorsement  in  blank. 
1899,  c.  733,  s.  9. 

2160.  No  formal  language  required.  The  negotiable  instrument 

need  not  follow  the  language  of  this  chapter,  but  any  terms  are  suffi- 
cient which  clearly  indicate  an  intention  to  conform  to  the  require- 
ments hereof. 
1899,  0.  733,  s.  10. 

II.     Date. 

2161.  Prima  facie  true.  Where  the  instrument  or  an  acceptance 
or  any  indorsement  thereon  is  dated,  such  date  is  deemed  prima  facie 
to  be  the  true  date  of  the  making,  drawing,  acceptance  or  indorse- 
ment, as  the  case  may  be. 

1899,  c.  733,  s.  11. 

2162.  Incorrect,  does  not  invalidate.  The  instnmient  is  not 

invalid  for  the  reason  only  that  it  is  antedated  or  post-dated,  pro- 
vided that  this  is  not  done  for  an  illegal  or  fraudulent  purpose.     The 
person  to  whom  an  instrument  so  dated  is  delivered,  acquires  the 
title  thereto  as  of  the  date  of  delivery. 
1899,  c.  733,  s.  12. 

Rev.  Vol.  1—38  6.57 


2163  NEGOTIABLE  INSTS.— //.  Dale.  Cli.   54 

2163.  Holder  may  insert.  When  an  instrument  expressed  to  be 
payable  at  a  fixed  period  after  date  is  issued  \indated,  or  where  the 
acceptance  of  an  instrument  payable  at  a  fixed  period  after  sight 
is  undated,  any  holder  may  insert  therein  the  true  date  of  issue  or 
acceptance,  and  the  instrument  shall  be  payable  accordingly.  The 
insertion  of  a  wrong  date  does  not  avoid  the  instrument  in  the  hands 
of  a  subsequent  holder  in  due  course;  but  as  to  him  the  date  sn 
inserted  is  to  be  regarded  as  the  true  date. 

1899,  c.  733,  s.  13. 

III.     Incomplete. 

2164.  Blanks  may  be  filled  by  holder.  Where  the  instrument  is 

wanting  in  any  material  particiilar,  the  person  in  possession  thereof 
has  a  prima  facie  authority  to  complete  it  by  filling  up  the  blanks 
therein.  And  a  signature  vn  a  blank  paper  delivered  by  the  person 
making  the  signature  in  order  that  the  paper  may  be  converted  into 
a  negotiable  instrument  operates  as  a  prima  facie  authority  to  fill  it 
up  as 'such  for  any  amount.  In  order,  however,  that  any  such  instru- 
ment when  completed  may  be  enforced  against  any  person  who 
became  a  party  thereto  prior  to  its  completion,  it  must  be  filled  up 
strictly  in  accordance  with  the  authority  given  and  within  a  reasona- 
ble time.  But  if  any  such  instrument  after  completion  be  negotiated 
to  a  holder  in  due  course,  it  is  valid  and  efl:'ectual  for  all  purposes 
in  his  hands,  and  he  may  enforce  it  as  if  it  had  been  filled  up  strictly 
in  accordance  with  the  authority  given  and  within  a  reasonable 
time. 

1899,  c.  733,  s.  14. 

2165.  Not  valid  unless  delivered.  Where  an  incomplete  instru- 
ment has  not  been  delivered  it  will  not,  if  completed  and  negotiated 
without  authority,  be  a  valid  contract  in  the  hands  of  any  holder 
as  against  any  person  whose  signature  was  placed  thereon  before 
delivery. 

1899,  c.  733,  s.  15. 

2166.  Revocable  until  delivery.  Every  contract  on  a  negotiable 
instrument  is  incomplete  and  revocable  until  delivery  of  the  instru- 
ment for  the  purpose  of  giving  effect  thereto.  As  between  immediate 
parties,  and  as  regards  a  remote  party  other  than  a  holder  in  diie 
course,  the  delivery  in  order  to  be  effectual  must  be  made  either  by 
or  under  the  authority  of  the  party  making,  drawing  or  indorsing. 
as  the  case  may  be;  and  in  such  case  the  delivery  may  bo  shown  to 
have  been  conditional  or  for  a  special  purpose  only,  and  not  for 
the  purpose  of  transferring  the  property  in  the  instrument.  But 
where  the  instrument  is  in  the  hands  of  a  holder  in  due  course  a 


i'LG6  :N"EG0TIABLE  INSTS.— ///.  Incomplele.  Ch.   54 

\  alid  delivery  thereof  by  all  parties  prior  to  him,  so  as  to  make  them 
liable  to  him,  is  conclusively  presmned.  And  where  the  instrument 
is  no  longer  in  possession  of  a  party  whose  signature  appears  thereon, 
:i  ^alid  and  intentional  delivery  by  him  is  presumed  until  the  eon- 
nary  is  proved. 
1899,  c.  733,  s.  16. 

IV.     Signature. 

2167.  No  liability  without.  No  person  is  liable  on  the  instrument 
whose  signature  does  not  appear  thereon,  except  as  herein  otherwise 
expressly  provided.  But  one  who  signs  in  a  trade  or  assumed  name 
will  be  liable  to  the  same  extent  as  if  he  had  signed  in  his  own 
name. 

1899,  c.  733,  s.  18. 

2168.  May  be  made  by  agent.  The  signature  of  any  party  may 
be  made  by  a  duly  authorized  agent.  ISTo  particular  form  of  appoint- 
ment is  necessary  for  this  purpose,  and  the  authority  of  the  agent 
may  be  established  as  in  other  cases  of  agency. 

1899,  e.  733,  s.  19. 

2169.  Effect  of  signing  as  agent.  Where  the  instrument  con- 
tains, or  a  person  adds  to  his  signature,  words  indicating  that  he 
signed  for  or  on  behalf  of  the  principal  or  in  a  representative  capac- 
ity, he  is  not  liable  on  the  instrument  if  he  was  duly  aiithorized; 
but  the  mere  addition  of  words  describing  him  as  an  agent  or  as 
filling  a  representative  character,  without  disclosing  his  principal, 
does  not  exempt  him  from  personal  liability. 

1899,  c.  733,  s.  20. 

2170.  Effect  of,  by  procuration.  A  signature  by  procuration 
operates  as  notice  that  the  agent  has  but  a  limited  authority  to  sign, 
and  the  principal  is  bound  only  in  case  the  agent  so  signing  acted 
within  the  actual  limits  of  his  authority. 

1899,  c.  733,  s.  21. 

2171.  Forgery  of,  renders  wholly  inoperative.  When  a  signature 

is  forged  or  made  without  the  authority  of  the  person  whose  signa- 
ture it  purports  to  be,  it  is  wholly  inoperative  and  no  right  to  retain 
the  instrument  or  to  give  a  discharge  therefor  or  to  enforce  payment 
thereof  against  any  party  thereto  can  be  acquired  through  or  i;nder 
such  signature,  unless  the  party  against  whom  it  is  sought  to  enforce 
such  right  is  precluded  from  -setting  up  the  forgery  or  Avant  of 
authority. 

1899,  c.  733,  s.  23. 


2172  XEGOTIABLE  IXSTS.— T'.   Conshleraiion.  Ch.  o4 

V.       CoNSIDEKATIOIs". 

2172.  Valuable,  presumed.  Every  negotiable  instrument  is 
deemed  prima  facie  to  liave  been  issued  for  a  valuable  consideration, 
and  every  person  whose  signature  appears  thereon  to  have  become 
a  party  thereto  for  value. 

1899,  c.  733;  s.  24. 

2173.  What  constitutes  value.  Value  is  any  consideration  sutK- 
cient  to  support  a  simple  contract.  An  antecedent  or  pre-existing 
debt  constitutes  value  and  is  deemed  such  whether  the  instrument  is 
payable  on  demand  or  at  a  future  time. 

1899,  c.  733,  s.  25. 

2174.  Holder  deemed  holder  for  value  when  value  given.  Where 

value  has  at  any  time  been  given  for  the  instrument  the  holder  is 
deemed  a  holder  for  value  in  respect  to  all  parties  Avho  became  such 
prior  to  that  time. 
1899,  e.  733,  s.  26. 

2175.  Holder  of  lien,  holder  for  value  to  extent  of  lien.  Where 

the  holder  has  a  lien  on  the  instrument  arising  either  from  contract 
or  by  implication  of  law  he  is  deemed  a  holder  for  value  to  the 
extent  of  his  lien. 
1899,  c.  733,  s.  27. 

2176.  Absence  or  failure  of,  as  defense.  Absence  or  failure  of 

consideration  is  matter  of  defense  as  against  any  person  not  a  holder 
in  due  course,  and  partial  faihire  of  consideration  is  a  defense  pro 
tanto,  whether  the  failure  is  an  ascertained  and  liquidated  amount 
or  otherwise. 
1899,  c.  733,  s.  28. 

2177.  Accommodation  party,  who  is;  liability.  An  accommoda- 
tion party  is  one  who  has  signed  the  instrument  as  maker,  drawer, 
acceptor  or  indorser  without  receiving  value  therefor,  and  for  the 
purpose  of  lending  his  name  to  some  other  person.  Such  a  person  is 
liable  on  the  instrument  to  a  holder  for  value,  notwithstanding  such 
holder  at  the  time  of  taking  the  instrument  knew  him  to  be  only 
an  accommodation  party. 

1899,  c.  733,  s.  29. 

VI.     Indorsement. 

2178.  What  is  negotiation.  An  instrument  is  negotiated  wiien 
it  is  transferred  from  one  person  to  another  in  such  manner  as  to 


2178  I^TEGOTIABLE  INSTS.— TT.  Indorsement.  Ch.   54 

constitute  the  transferee  the  holder  thereof.     If  payable  to  bearer 
it  is  negotiated  by  delivery;  if  payable  to  order,  it  is  negotiated  by 
the  indorsement  of  the  holder,  and  completed  by  delivery. 
1899,  c.  733,  s.  30. 

2179.  How  made.  The  indorsement  must  be  written  on  the  in- 
strument itself  or  upon  a  paper  attached  thereto.  The  sigiiature  of 
the  indorser,  without  additional  words,  is  a  sufficient  indorsement. 

1899,  c.  733,  s.  31. 

2180.  Effect  of,  by  corporations  and  infants.  The  indorsement 

or  assignment  of  the  instrument  by  a  corporation,  an  infant,  or  mar- 
ried woman  passes  the  property  therein,  notwithstanding  that  fi'om 
want  of  capacity  the  corporation,  infant,  or  married  woman  may 
incur  no  liability  thereon. 
1899,  c.  733,  s.  22. 

2181.  Must  be  of  entire  instrument.  An  indorsement  must  be  au 
indorsement  of  the  entire  instrument.  An  indorsement  which  pur- 
ports to  transfer  to  the  indorsee  a  part  only  of  the  amount  payable 
or  which  purports  to  transfer  the  instrument  to  two  or  more  indorsees 
severally,  does  not  operate  as  a  negotiation  of  the  instrument.  But 
where  the  instrument  has  been  paid  in  jDart  it  may  be  indorsed  as 
to  the  residue. 

1899,  c.  733,  s.  32. 

2182.  Kinds  of.  An  indorsement  may  be  either  in  blank  or  spe- 
cial, and  it  may  also  be  either  restrictive  or  qualified  or  conditional. 

1899,  c.  733,  s.  33. 

2183.  Special,  defined;  in  blank.  A  special  indorsement  specifies 
the  person  to  whom  or  to  whose  order  the  instrument  is  to  be  paya- 
ble ;  and  the  indorsement  of  such  indorsee  is  necessary  to  the  further 
negotiation  of  the  instrument.  An  indorsement  in  blank  specifies 
no  indorsee,  and  an  instrument  so  indorsed  is  payable  to  bearer  and 
may  be  negotiated  by  delivery. 

1899,  c.  733,  s.  34. 

2184.  Holder  may  convert  blank  to  special.  The  holder  may 

convert  a  blank  indorsement  into  a  special  indorsement  by  writing 
over  the  signature  of  the  indorser  in  blank  any  contract  consistent 
with  the  character  of  the  indorsement. 
1899,  c.  733,  s.  35. 

2185.  Restrictive,  defined.  An  indorsement  is  restrictive,  which 
oitlier  (1)  prohibits  the  further  negotiation  of  the  instrument;  or 
(2)  constitutes  the  indorsee  the  agent  of  the  indorser;  or  (3)  vests 


21S5  NEGOTIABLE  INSTS.— TV.  Indorsemcnl.  Ch.   :.+ 

the  title  in  the  indorsee  in  trust  for  or  to  the  use  of  some  other  per 
son.     But  the  mere  absence  of  words  implying  power  to  negotiate 
does  not  make  an  indorsement  restrictive. 
1899,  c.  733,  s.  36. 

2186.  Restrictive,  confers  what  rights.  A  restrictive  indorse- 
ment confers  upon  the  indorsee  the  right  {!)  to  receive  payment  of 
the  instrument;  (2)  to  bring  any  action  thereon  that  the  indorscr 
could  bring;  (3)  to  transfer  his  rights  as  such  indorsee,  where  the 
form  of  the  indorsement  authorizes  him  to  do  so.  But  all  subsequent 
indorsees  acquire  only  the  title  of  the  first  indorsee  under  the  restrict- 
ive indorsement. 

1899,  e.  733,  s.  37. 

2187.  Qualified,  constitutes  indorser  a  mere  assignor  of  title. 

A  qualified  indorsement  constitutes  the  indorser  a  mere  assignor  of 
the  title  to  the  instrument.  It  may  be  made  by  adding  to  the 
indorser's  signature  the  words  "without  recourse"  or  any  words  of 
similar  imjDort.  Such  an  indorsement  does  not  impair  the  negotiable 
character  of  the  instrument. 
1899,  c.  733,  s.  38. 

2188.  Conditional,  effect  of.  Where  an  indorsement  is  condi- 
tional, a  party  required  to  pay  the  instrument  may  disregard  the 
condition  and  make  payment  to  the  indorsee  or  his  transferee, 
whether  the  condition  has  been  fulfilled  or  not.  But  any  person 
to  whom  an  instrument  so  indorsed  is  negotiated  will  hold  the  same 
or  the  proceeds  thereof  subject  to  the  rights  of  the  person  indorsing 
conditionally. 

1899,  c.  733,  s.  39. 

2189.  Effect  of  special,  instrument  payable  to  bearer.  Where 

an  instrument  payable  to  bearer  is  indorsed  specially,  it  may  never- 
theless be  further  negotiated  by  delivery;  but  the  person  indorsing 
specially  is   liable  as  indorser  to  only  such  holders   as  make   title 
through  his  indorsement. 
1899,  c.  73.3,  s.  40. 

2190.  By  two  or  more  payees.  Where  an  instrument  is  payable 
to  the  order  of  two  or  more  payees  or  indorsees  who  are  not  part- 
ners, all  must  indorse  unless  the  one  indorsing  has  authority  to 
indorse  for  the  others. 

1809,  c.  733,  s,  41. 

2191.  Payable  to  cashier  or  other  fiscal  officer,  payable  to  cor- 
poration.   ^\'li('re  nu  instrument  is  drawn  or  ind<)rs(>d  to  a  person  as 


2191  NEGOTIABLE  IIS^STS.— F/.  Indorsement.  Ch.   54 

cashier  or  other  tiscal  officer  of  a  bank  or  corporation  it  is  deemed 
prima  facie  to  be  payable  to  the  bank  or  corporation  of  which  he  is 
such  officer,  and  may  be  negotiated  by  either  the  indorsement  of  the 
bank  or  corporation  or  the  indorsement  of  the  officer. 
1899,  c.  733,  s.  42. 

2192.  Name  of  payee  wrong,  how  indorsed.  Where  the  name 

of  a  payee  or  indorsee  is  wrongly  designated  or  misspelled  he  may 
indorse  the  instrument  as  there  described,  adding,  if  he  thinlv  fit,  his 
proper  signature. 
1899,  c.  733,  s.  43. 

2193.  Indorser  in  representative  capacity  may  negative  per- 
sonal liability.  Where  any  person  is  under  obligation  to  indorse  in 
a  representative  capacity  he  may  indorse  in  siich  terms  as  to  negative 
personal  liability. 

1899,  c.  733,  s.  44. 

2194.  Undated,  presumed,  before  due.   Except  where  an  in- 

doi'sement  bears  date  after  the  maturity  of  the  instrument,  every 
negotiation  is  deemed  prima  facie  to  have  been  effected  before  the 
instrument  was  overdue. 
1899,  c.  733,  s.  45. 

2195.  Presumed  made  at  place  of  date  of  instrument.  Except 

wh^re  the  contrary  appears,  every  indorsement  is  presumed  prima 
facie  to  have  been  made  at  the  place  where  the  instnunent  is  dated. 
1899,  c.  733,  s.  46. 

2196.  Once  negotiable,  continues  so  till  discharged.  An  instru- 
ment negotiable  in  its  origin  continues  to  be  negotiable  until  it  has 
been  restrictively  indorsed  or  discharged  by  payment  or  otherwise. 

1899,  e.  733,  s.  47. 

2197.  Holder  may  strike  out;  effect  of.  The  holder  may  at  any 
time  strike  out  any  indorsement  which  is  not  necessary  to  his  title. 
The  indorser  whose  indorsement  is  struck  out  and  all  indorsers  sub- 
sequent to  him  are  thereby  relieved  from  liability  on  the  instru- 
ment. 

1899,  c.  733,  s.  48. 

2198.  Transfer  without,  makes  non-negotiable  till  indorsed. 

Where  the  holder  of  an  instrument  payable  to  his  order  transfers 
it  for  value  without  indorsing  it,  the  transfer  vests  in  the  transferee 
such  title  as  the  transferrer  had  therein,  and  the  transferee  acquires 
in  addition  the  right  to  have  the  indorsement  of  the  transferrer.  But 
for  the  purpose  of  determining  whether  the  transferee  is  a  holder 


2198  XEGOTIABLE  IXSTS.— TT.  indorsement.  Ch.   54 

in  due  course,  the  negotiation  takes  effect  as  of  the  time  when  the 
indorsement  is  actually  made. 
1899,  c.  733,  s.  40. 

2199.  Negotiation  back  to  prior  party  releases  intermediate 

parties.  Where  an  instrument  is  negotiated  back  to  a  prior  party, 
such  party  may,  subject  to  the  provisions  of  this  chapter,  reissue  and 
further  negotiate  the  same.  But  he  is  not  entitled  to  enforce  pay- 
ment thereof  against  any  intervening  party  to  whom  he  was  per- 
sonally liable. 
1899,  c.  733,  s.  50. 

VII.     Rights  of  Holder. 

2200.  IVIay  sue  in  his  own  name.  The  holder  of  a  negotiable 
instrument  may  sue  thereon  in  his  own  name,  and  payment  to  him 
in  due  course  discharges  the  instrument. 

1899,  c.  733.  s.  51. 

2201.  What  constitutes  holder  in  due  course.   A  holder  in 

due  course  is  a  holder  who  has  taken  the  instrument  under  the  fol- 
lowing conditions:  (1)  That  the  instrument  is  complete  and  regular 
upon  its  face;  (2)  that  he  became  the  holder  of  it  before  it  was 
overdue  and  without  notice  that  it  has  been  previously  dishonored, 
if  such  was  the  fact;  (3)  that  he  took  it  for  good  faith  and  value; 
(■i)  that  at  the  time  it  was  negotiated  to  him  he  had  no  notice  of 
any  infirmity  in  the  instrument  or  defect  in  the  title  of  the  person 
negotiating  it. 
1899,  c.  733,  s.  52. 

2202.  Delay  in  presenting  when  on  demand.  Where  an  instru- 
ment payable  on  demand  is  negotiated  an  unreasonable  length  of 
time  after  its  iss\ie,  the  holder  is  not  deemed  a  holder  in  due  course. 

1899,  c.  733.  s.  53. 

2203.  Effect  of  notice  of  infirmity.  Where  the  transferee  received 
notice  of  any  infirmity  in  the  instrument  or  defect  in  the  title  of 
the  person  negotiating  the  same  before  he  has  paid  the  full  amount 
agreed  to  be  jDaid  therefor,  he  will  be  deemed  a  holder  in  due  course 
only  to  the  extent  of  the  amount  theretofore  paid  by  him. 

1899,  c.  733,  s.  54. 

2204.  Fraud,  duress  or  force  in  obtaining,  makes  title  void. 

The  title  of  a  i:)erson  who  negotiates  an  instrument  is  defective  within 
the  meaning  of  this  chapter  when  he  obtained  the  instrument,  or 
any  signature  thereto,  by  fraud,  duress  or  force  and  fear  or  other 
unlawful  means,  or  for  an  illegal  consideration,  or  when  he  nego- 


2204     :NEG0TIABLE1'NSTS.— VII.  Birjhis-of  Holder.      Ch.   54 

tiates  it  in  breach  of  faith  or  under  such  circumstances  as  amount  to 
a  fraud. 

1899,  c.  733,  s.  55. 

2205.  Actual  knowledge  necessary  to  constitute  notice  of  in- 
firmity. To  constitute  notice  of  an  intirmit}'  in  the  instrument  or 
defect  in  the  title  of  the  person  negotiating  the  same  the  person  to 
whom  it  is  negotiated  must  have  had  actual  knowledge  of  the  infirm- 
ity or  defect  or  knowledge  of  such  facts  that  his  action  in  taking  the 
instrument  amounted  to  bad  faith. 

1899,  e.  73.3,  s.  56. 

2206.  Free  from  defect,  in  title  of  prior  parties.  A  holder  in  due 

course  holds  the  instrument  free  from  any  defect  of  title  of  prior 
parties,  and  free  from  defenses  available  to  prior  parties  among 
themselves,  and  may  enforce  payment  of  the  instrument  for  the  full 
amount  thereof  against  all  parties  liable  thereon. 
1899,  c.  733,  s.  57. 

2207.  Holds  as  non-negotiable,  when.  In  the  hands  of  any 

holder  other  than  a  holder  in  due  course  a  negotiable  instrument  is 
subject  to  the  same  defenses  as  if  it  were  non-negotiable.  But  a 
holder  who  derives  his  title  through  a  holder  in  due  course  and  who 
is  not  himself  a  j^arty  to  any  fraud  or  illegality  affecting  the  instru- 
ment has  all  the  rights  of  such  former  holder  in  respect  of  all  par- 
ties prior  to  the  latter. 
1899,  c.  733,  s.  58_. 

2208.  Deemed  prima  facie  in  due  course.   Every  holder  is 

deemed  prima  facie  to  be  a  holder  in  due  course ;  but  when  it  is  shown 
that  the  title  of  any  person  who  has  negotiated  the  instrument  was 
defective,  the  burden  is  on  the  holder  to  prove  that  he  or  some  person 
under,  whom  he  claims  acquired  the  title  as  a  holder  in  due  course. 
But  the  last-mentioned  rule  does  not  apply  in  favor  of  a  party  who 
became  bound  on  the  instrument  prior  to  the  acquisition  of  such 
defective  title. 
1899,  c.  733,  s.  59. 

VIII.     Liability  of  Parties. 

2209.  Maker's  admissions  and  engagements.   The  maker  of 

a  negotiable  instrument  by  making  it  engages  that  he  will  pay  it 
according  to  its  tenor,  and  admits  the  existence  of  the  payee  and  his 
then  capacity  to  indorse. 
1899,  c.  733,' s.  60. 


2210     XEGOTIAPyLE  IXSTS.— T77/.  LiahilUy  of  Part.     Ch.   54 

2210.  Drawer's  admissions  and  engagements.    The  drawer 

by  drawing  tiie  instrument  admits  the  existence  of  the  payee  and 
his  then  capacity  to  indorse,  and  engages  that  on  due  presentment 
the  instrument  will  be  accepted  or  paid,  or  both,  according  to  its 
tenor,  and  that  if  it  be  dishonored  and  the  necessary  proceedings  on 
dishonor  be  duly  taken,  he  will  pay  the  amount  thereof  to  the  holder 
or  to  any  subsequent  indorser  M'ho  may  be  compelled  to  pay  it.  But 
the  drawer  may  insert  in  the  instrument  an  express  stipulation  nega- 
tiving or  limiting  his  own  liability  to  the  holder. 
1899,  c.  733,  s.  61. 

2211.  Acceptor's  engagements.  The  acceptor  by  accepting  the 
instrument  engages  that  he  will  pay  it  according  to  the  tenor  of  his 
acceptance;  and  admits  (1)  existence  of  the  drawer,  the  genuineness 
of  his  signature  and  his  capacity  and  authority  to  draw  the  instru- 
ment; and  (2)  the  existence  of  the  i^ayee  and  his  then  capacity 
to  indorse. 

1899,  c.  733,  s.  62. 

2212.  Who  deemed  indorsers.  A  person  placing  his  signature 
upon  an  instrument  otherwise  than  as  maker,  drawer  or  acceptor 
is  deemed  to  be  an  indorser,  unless  he  clearly  indicates  by  appropri- 
ate words  his  intention  to  be  boimd  in  some  other  capacity. 

1899,  c.  733,  s.  63. 

2213.  Signing  in  blank,  liable  as  indorser.  Where  a  person  not 

otherwise  a  party  to  an  instrument  places  thereon,  his  signature  in 
blank  before  delivery  he  is  liable  as  indorser  in  accordance  with  the 
following  rules:  (1)  If  the  instrument  is  payable  to  the  order  of  a 
third  person  he  is  liable  to  the  payee  and  to  all  subsequent  parties; 

(2)  if  the  instrument  is  payable  to  the  order  of  the  maker  or  drawer, 
or  is  payable  to  bearer,  he  is  liable  to  all  parties  subsequent  to  the 
maker  or  drawer;  (3)  if  he  signs  for  the  accommodation  of  the 
payee  he  is  liable  to  all  parties  subsequent  to  the  payee. 

1899,  c.  733,  s.  64. 

2214.  Delivery  or  qualified  indorsement  warrants  what.  Every 

person  negotiating  an  instrument  by  delivery  or  by  a  qualified 
indorsement  warrants  (1)  that  the  instrument  is  genuine  and  in  all 
respects  what  it  purports  to  be;  (2)  that  he  has  a  good  title  to  it; 

(3)  that  all  prior  parties  had  capacity  to  contract;  (4)  that  he  has 
no  knowledge  of  any  fact  which  would  impair  the  validity  of  the 
instrument  or  render  it  valueless.  But  when  the  negotiation  is  by 
delivery  only  the  warranty  extends  in  favor  of  no  holder  other  than 
the  immediate  transferee.     The  provisions  of  subdivision  three  of 


1'1'U    NEGOTIABLE  I  XSTS.—r///.  LiahUitu  of  Part.    Ch.  54 

iliis  section  do  not  apply  to  persons  negotiating  public  or  corporate 
securities  other  than  bills  and  notes. 
1899,  c.  733,  s.  65. 

2215.  Indorser  without  qualification  warrants  what.    Every 

indorser  who  indorses  without  qualiiication  warrants  to  all  subse- 
quent holders  in  due  course  (1)  the  matters  and  things  mentioned  in 
subdivisions  one,  two  and  three  of  the  next  preceding  section ;  and 
(2)  that  the  instrument  is  at  the  time  of  his  indorsement  valid  and 
subsisting.  And  in  addition  he  engageg  that  on  due  presentment 
it  shall  be  accepted  or  paid,  or  both,  as  the  case  may  be,  according 
to  its  tenor,  and  that  if  it  be  dishonored  and  the  necessary  proceed- 
ings on  dishonor  be  duly  taken  he  will  pay  the  amount  thereof  to 
the  holder  or  to  any  subsequent  indorser  who  may  be  compelled  to 
pay  it. 

1899,  c.  733,  s.  66. 

2216.  Indorser  of  instrument  negotiable  by  delivery.  Where  a 

person  places  his  indorsement  on  an  instriuncnt  negotiable  by  deliv- 
ery he  incurs  all  the  liabilities  of  an  indorser. 
1899,  c.  733,  s.  67. 

2217.  In  order  of  their  indorsement.  As  respects  one  another, 

indorsers  are  liable  prima  facie  in  the  order  in  which  they  indorse; 
but  evidence  is  admissible  to  show  that  as  between  or  among  them- 
selves they  have  agreed  otherwise.     Joint  payees  or  joint  indorsees 
who  indorse  are  deemed  to  indorse  jointly  and  severally. 
1899,  c.  733.  s.  68. 

2218.  Broker  or  agent  negotiating  without  indorsement.  Where 

a  broker  or  other  agent  negotiates  an  instrument  without  indorse- 
ment he  incurs  all  the  liabilities  prescribed  by  section  two  thousand 
two  hundred  and  fourteen,  unless  he  discloses  the  name  of  his  princi- 
pal and  the  fact  that  he  is  acting  only  as  agent. 
1899,  c.  733,  s.  69. 

IX.     Peesentjient  for  Paymext. 

2219.  When  necessary;  when  not.  Presentment  for  payment  is 
not  necessary  in  order  to  charge  the  person  primarily  on  the  instru- 
ment ;  but  if  the  instrument  is  by  its  terms  payable  at  a  special  place, 
and  he  is  able  and  willing  to  pay  it  there  at  maturity,  such  ability 
and  willingness  are  equivalent  to  a  tender  of  payment  upon  his  part. 
But,  except  as  herein  otherwise  provided,  presentment  for  payment 
is  necessary  in  order  to  charge  the  drawer  and  indorsers. 

1899,  c.  733.  s.  70. 

fior 


2220  NEGOTIABLE  TXSTS.— Z.Y.  Presentment.  Cli.   54 

2220.  At  what  time.  Where  the  instrument  is  not  payable  ou 
demand,  presentment  must  be  made  on  the  day  it  falls  due.  Where 
it  is  ijayable  on  demand,  presentment  must  be  made  within  a  reason- 
able time  after  its  issue,  except  that  in  the  case  of  a  bill  of  exchange 
presentment  for  payment  will  be  sufficient  if  made  within  a  rea- 
sonable time  after  the  last  negotiation  thereof. 

1899,  c.  733,  s.  71. 

2221.  How  made.  Presentment  for  pa.>anent  to  be  sufficient  must 
be  made  (1)  by  the  holder  or  by  some  person  authorized  to  receive 
payment  on  his  behalf;  (2)  at  a  reasonable  hour  on  a  business  day; 
(3)  at  a  proper  place  as  herein  defined;  (4)  to  the  person  primarily 
liable  on  the  instrument,  or,  if  he  is  absent  or  inaccessible,  to  any 
person  found  at  the  place  where  the  presentment  is  made. 

1899,  c.  733,  s.  72. 

2222.  Proper  place  for.  Presentment  for  payment  is  made  at 
the  projjer  place  (1)  where  a  place  of  payment  is  specified  in  the 
instrument  and  it  is  there  presented;  (2)  where  no  place  of  paj-ment 
is  specified  but  the  address  of  the  person  to  make  the  paj'ment  is 
given  in  the  instrument,  and  is  there  presented;  (3)  where  no 
place  of  payment  is  specified  and  no  address  is  given  and  the  instru- 
ment is  presented  at  the  usual  place  of  business  or  residence  of  the 
person  to  make  payment;  (4)  in  any  other  case  if  presented  to  the 
person  to  make  payment  wherever  he  can  be  found,  or  if  j^resented 
at  his  last  known  place  of  business  or  residence. 

1899,  c.  733,  s.  73. 

2223.  Instrument  exhibited  to  party,  delivered  when  paid.  The 

instrument  must  be  exhibited  to  the  person  from  whom  payment 
is  demanded,  and,  when  it  is  paid,  must  be  delivered  up  to  the  party 
paying  it. 

1899,  c.  733,  s.  74. 

2224.  Payable  at  bank,  how  made.  Where  the  instrument  is 
payable  at  a  bank  presentment  for  pajanent  must  be  made  during 
banking  hours,  imless  the  person  to  make  payment  has  no  fimds 
there  to  meet  it  at  any  time  during  the  day,  in  which  case  present- 
ment at  any  hour  before  the  bank  is  clo.sed  on  that  day  is  sufficient. 

1899,  c.  733,  s.  75. 

2225.  When  made  to  personal  representative.  Where  the  per- 
son primarily  liable  on  the  instrument  is  dead,  and  no  place  of  pay- 
ment is  specified,  presentment  for  payment  must  be  made  to  his 
personal  representative,  if  such  there  be,  and  if  with  the  exercise 
of  reasonable  diligence  he  can  be  found. 

1899,  c.  733,  s.  76. 


2226  NEGOTIABLE  IjSTSTS.— /Z.  Presentment.  Ch.   54 

2226.  How  made  to  partners.  Where  the  persons  primarily  lia- 
ble on  the  instrument  are  liable  as  partners  and  no  place  of  payment 
is  specified,  presentment  for  payment  may  be  made  to  any  one  of 
them,  even  though  there  has  been  a  dissolntion  of  the  firm. 

1899,  c.  733,  s.  77. 

2227.  To  persons  severally  liable.  Where  there  are  several  per- 
sons not  parties  primarily  liable  on  the  instrument  and  no  place 
of  payment  is  specified,  presentment  must  be  made  to  them  all. 

1899,  c.  733,  s.  78. 

2228.  When  not  required  to  charge  drawer.  Presentment  for 

payment  is  not  required  in  order  to  charge  the  drawer  where  he  has 
no  right  to  expect  or  require  that  the  drawee  or  acceptor  will  pay 
the  instrument. 
1899,  c.  733,  s.  79. 

2229.  Not  required  to  charge  indorser,  when.  Presentment  for 

payment  is  not  required  in  order  to  charge  an  indorser  where  the 
instrument  was  made  or  accepted  for  his  accommodation,  and  he 
has  no  reason  to  expect  that  the  instrument  will  be  paid  if  pre- 
sented. 

1899,  c.  733,  3.  80. 

2230.  Delay  in  making,  when  excused.  Delay  in  making  pre- 
sentment for  payment  is  excused  when  the  delay  is  caused  by  cir- 
cumstances beyond  the  control  of  the  holder  and  not  impiitable  to 
bis  default,  misconduct  or  negligence.  When  the  cause  of  delay 
ceases  to  operate  presentment  miist  be  made  with  reasonable  dili- 
gence. 

1899,  c.  733,  s.  81. 

2231.  Dispensed  with,  when.  Presentment  for  payment  is  dis- 
pensed with  (1)  where  after  the  exercise  of  reasonable  diligence 
presentment  as  required  by  this  chapter  can  not  be  made;  (2)  where 
the  drawee  is  a  fictitious  person;  (3)  by  waiver  of  presentment, 
express  or  implied. 

1899,  c.  733.  s.  82. 

2232.  What  constitutes.  The  instrument  is  dishonored  by  non- 
payment when  (1)  it  is  duly  presented  for  payment  and  payment  is 
refused  or  can  not  be  obtained;  or  (2)  presentment  is  excused  and 
the  instrument  is  overdue  and  unpaid. 

1899,  c.  733,  s.  83. 

2233.  Dishonor  gives  right  of  action  against  those  secondarily 

liable.   Subject  to  the  provisions  of  this  chapter,  when  the  instrument 


2233  XEGOTIABLE  INSTS.— /A'.  Presentment.  Ch.   5-t 

is  dishonored  by  noupavment,  an  immediate  right  of  recourse  to  all 
parties  secondarily  liable  thereon  acciiies  to  the  holder. 
1899,  c.  733,  s.  84. 

2234.  When  negotiable  instruments  payable.  Every  negotiable 

instrument  is  payable  at  the  time  fixed  therein  with  grace  as  allowed 
by  the  succeeding  section.  When  the  day  of  maturity  falls  upon  Sun- 
day or  a  holiday  the  instrument  is  payable  on  the  next  succeeding 
business  day.  Instruments  falling  due  on  Saturday,  when  it  is  a 
holiday,  are  to  be  presented  for  payment  on  the  next  succeeding  busi- 
ness day,  except  that  instruments  payable  on  demand  may  at  the 
ojition  of  the  holder  be  presented  for  payment  before  twelve  o'clock 
noon  on  Saturday,  when  that  entire  day  is  not  a  holiday. 
1899,  c.  733,  s.  85. 

2235.  Days  of  grace,  what  allowed.  All  bills  of  exchange  paya- 
ble within  the  state,  at  sight,  in  which  there  is  no  express  stipulation 
to  the  contrary,  shall  be  entitled  to  days  of  grace  as  the  same  are 
allowed  by  the  custom  of  merchants  on  foreign  bills  of  exchange 
payable  at  the  expiration  of  a  certain  period  after  date  or  sight :  Pro- 
vided, that  no  days  of  grace  shall  be  allowed  on  any  bill  of  exchange, 
promissory  note,  or  draft  payable  on  demand. 

Code,  s.  43;  1905,  c.  327. 

2236.  Time,  how  computed.  Where  the  instrument  is  payable 
at  a  fixed  period  after  date,  after  sight,  or  after  the  happening  of  a 
specified  event,  the  time  of  payment  is  determined  by  excluding 
the  day  from  which  the  time  is  to  begin  to  run  and  by  including 
the  date  of  payment. 

1899,  c.  733,  s.  86. 

2237.  Instrument  payable  at  bank  is  an  order  to  bank  to  pay. 

Where  the  instrument  is  made  payable  at  a  bank  it  is  equivalent  to 
an  order  to  the  bank  to  pay  the  same  for  the  account  of  the  princi- 
pal debtor  thereon. 
1899,  e.  733,  s.  87. 

2238.  Payment  in  due  course,  what  is.  Payment  is  made  in 
due  course  when  it  is  made  at  or  after  the  maturity  of  tlic  instru- 
ment to  the  holder  thereof  in  good  faith  and  M'ithout  notice  that  liis 
title  is  defective. 

1899,  c.  733.  s.  88. 

X.     XoTicE  OF  Dishonor. 

2239.  Effect  of  failure  to  give.  Except  as  herein  otherwise  pro- 
vided, when  a  negotiable  instrument  has  been  dishonored  by  non- 


I'L'.IO  InTEGOTIABLE  INSTS.— X.  DisJwnor.  Ch.  54 

aicej^tance  or  nonpayiiient,  notice  of  dishonor  must  be  given  to  the 
1 1  rawer  and  to  each  indorser,  and  any  drawer  or  indorser  to  whom 
such  notice  is  not  given  is  discharged. 
1899,  c.  733.  s.  89. 

2240.  By  whom  given.  The  notice  may  be  given  by  or  on  behalf 
of  the  holder  or  by  or  on  behalf  of  any  party  to  the  instrument  who 
might  be  compelled  to  pay  it  to  the  holder,  and  who  upon  taking  it 
up  woiild  have  a  i-ight  to  reimbursement  from  the  party  to  whom 
notice  is  given. 

1899,  c.  733,  s.  90. 

2241.  May  be  given  by  agent.  Notice  of  dishonor  may  be  given 
by  an  agent  either  in  his  own  name  or  in  the  name  of  any  i^arty 
entitled  to  give  notice,  whether  that  party  be  his  principal  or  not. 

1899,  c.  733,  s.  91. 

2242.  Who  benefited  by  holder's  notice.  Where  notice  is  given 

by  or  on  behalf  of  the  holder,  it  inures  to  the  benefit  of  all  subse- 
quent holders  and  all  prior  parties  who  have  a  right  of  recourse 
against  the  party  to  whom  it  is  given. 
1899,  c.  733,  s.  92. 

2243.  Given  by  a  party  inures  to  benefit  of  holder  and  subse- 
quent parties.  Where  notice  is  given  by  or  on  behalf  of  a  party 
entitled  to  give  notice  it  inures  to  the  benefit  of  the  holder  and  all 
parties  subsequent  to  the  party  by  whom  notice  is  given. 

1899,  e.  733,  s.  93. 

2244.  Agent  may  give  to  principal  or  parties.  Where  the  iustru- 

ment  has  been  dishonored  in  the  hands  of  an  agent  he  may  either  him- 
self give  notice  to  the  parties  liable  thereon  or  he  may  give  notice 
to  his  principal.  If  he  give  notice  to  his  principal  he  must  do  so 
within  the  same  time  as  if  he  were  the  holder,  and  the  principal 
upon  the  receipt  of  such  notice  has  him.self  the  same  time  for  giv- 
ing notice  as  if  the  agent  had  been  an  independent  holder. 
1899,  c.  733,  s.  94. 

2245.  Defects  of,  not  to  invalidate  unless  party  misled.  A  writ- 
ten notice  need  not  be  signed  and  an  insufficient  written  notice  may 
be  supplemented  and  validated  by  verbal  communication.  A  mis- 
description of  the  instrument  does  not  vitiate  unless  the  party  to 
whom  the  notice  is  given  is  in  fact  misled  thereby. 

1899,  c.  733.  s.  9.5. 

2246.  Terms  of,  may  be  oral  or  written.  The  notice  may  be  in 

writing  or  merely  oral  and  may  be  given  in  any  terms  which  suffi- 


2246  XEGOTIABLE  IXSTS.— A".  Dishonor.  Ch.  54 

ciently  identify  the  instrument  and  indicate  that  it  has  been  dishon- 
ored by  nonacceptance  or  nonpayment.     It  may  in  all  cases  be  given 
by  delivering  it  personally  or  through  the  mails. 
1899,  e.  733,  s.  96. 

2247.  May  be  given  to  party  or  agent.  Is'otice  of  dishonor  may 

be  given  either  to  the  party  himself  or  to  his  agent  in  that  behalf. 
1899,  c.  733,  s.  97. 

2248.  When  given  to  personal  representative.  When  any  party 

is  dead  and  his  death  is  known  to  the  party  giving  notice,  the  notice 
must  be  given  to  a  personal  representative  if  thei-e  be  one,  and  if 
with  reasonable  diligence  he  can  be  found.  If  there  is  no  personal 
representative,  notice  may  be  sent  to  the  last  residence  or  last  place 
of  business  of  the  deceased. 
1899,  c.  733,  s.  98. 

2249.  To  partner  for  firm.  When  the  parties  to  be  notified  are 
partners,  notice  to  any  one  partner  is  notice  to  the  firm  even  though 
there  has  been  a  dissolution. 

1899,  c.  733,  s.  99. 

2250.  Joint  parties,  eacil  notified.  Notice  to  joint  parties  who 
are  not  partners  miist  be  given  to  each  of  them  unless  one  of  them 
has  authority  to  receive  such  notice  for  the  others. 

1899,  c.  733.  s.  100. 

2251.  To  trustee  in  banl<ruptcy,  etc.  ^Yhere  a  party  has  been 
adjudged  a  bankrupt  or  an  insolvent  or  has  made  an  assignment  for 
the  benefit  of  his  creditors,  notice  may  be  given  either  to  the  party 
himself  or  to  his  trustee  or  assignee. 

1899,  c.  733.  s.  101. 

2252.  At  what  time  given.  Xotlce  may  be  given  as  soon  as  the 
instiimient  is  dishonored,  and,  unless  delay  is  excused  as  hereinafter 
provided,  must  be  given  within  the  times  fixed  by  this  chapter. 

1899,  c.  733,  s.  102. 

2253.  When  given  to  persons  residing  in  same  place.  When 

the  person  giving  and  the  person  to  receive  notice  reside  in  same  place 
notice  must  be  given  within  the  following  times:  (1)  If  given  at 
the  place  of  business  of  the  person  to  receive  notice  it  must  be  given 
before  the  close  of  business  hours  on  the  day  following;  (2)  if  given 
at  his  residence  it  m\ist  be  given  before  the  usual  hours  of  rest  on 
the  day  following;  (3)  if  sent  by  mail  it  must  be  deposited  in  the 

672 


L'L'.-,3  NEGOTIABLE  INSTS.— Z.  Dislwnor.  Ch.  54 

|MistofEce  in  time  to  reach  him  in  the  usual  course  on  the  day  fol- 
lowing. 

1899,  c.  733,  s.  103. 

2254.  When  given  by  mail.  Where  the  person  giving  and  the 
person  to  receive  notice  reside  in  different  places  the  notice  must  be 
given  within  the  following  times:  (1)  If  sent  by  mail  it  must  be 
deposited  in  the  postoffice  in  time  to  go  by  mail  the  day  following 
the  day  of  dishonor,  or  if  there  be  no  mail  at  a  convenient  ho\ir  on 
that  day,  by  the  next  mail  thereafter;  (2)  if  given  otherwise  than 
through  the  postoffice,  then  within  the  time  that  notice  would  have 
been  received  in  due  course  of  mail  if  it  had  been  deposited  in  the 
postoffice  within  the  time  specified  in  the  last  subdivision. 

1899,  c.  733,  s.  104. 

2255.  Duly  mailed,  deemed  given.    Where  notice  of  dishonor  is 

duly  addressed  and  deposited  in  the  postoffice  the  sender  is  deemed 
to  have  given  due  notice,  notwithstanding  any  miscarriage  in  the 
mails. 

1899,  c.  733,  s.  105. 

2256.  When  deemed  mailed.  Notice  is  deemed  to  have  been 
dei^osited  in  the  postoffice  when  deposited  in  any  branch  postoffice  or 
in  any  letter-box  under  the  control  of  the  postoffice  department. 

1899,  0.  733,  s.  106. 

2257.  When  given  to  antecedent  parties.  Where  a  party  re- 
ceives notice  of  dishonor  he  has,  after  the  I'eceipt  of  such  notice,  the 
same  time  for  giving  notice  to  antecedent  parties  that  the  holder 
has  after  the  di.shonor. 

1899,  e.  733,  s.  107. 

2258.  Where  to  be  sent.  Where  a  party  has  added  an  address 
to  his  signature,  notice  of  dishonor  must  be  sent  to  that  address;  but 
if  he  has  not  given  such  address,  then  the  notice  must  be  sent  as  fol- 
lows: (1)  Either  to  the  postoffice  nearest  to  his  place  of  residence  or 
to  the  postoffice  where  he  is  accustomed  to  receive  his  letters;  or  (2) 
if  he  lives  in  one  place  and  have  his  place  of  business  in  another, 
notice  may  be  sent  to  either  place;  or  (3)  if  he  be  sojourning  in 
another  place  notice  may  be  sent  to  the  place  where  he  is  so  sojourn- 
ing. But  where  the  notice  is  actually  received  by  the  party  within 
the  time  specified  in  this  chapter  it  will  be  sufficient,  though  not 
sent  in  accordance  with  requirements  of  this  section. 

1899,  e.  733,  s.  108. 

Rev.  Vol.  1—39  673 


2259  jSTEGOTIABLE  INSTS.— X.  Dishonor.  Ch.  5i 

2259.  May  be  waived.  Notice  of  dishonor  may  be  waived  either 
before  the  time  of  giving  notice  has  arrived  or  after  the  omission  to 
give  due  notice,  and  the  waiver  may  be  express  or  implied. 

1899,  c.  733,  s.  109. 

2260.  Waiver  embodied  in  instrument  binds  all  parties.  Where 

the  waiver  is  embodied  in  the  instrimient  itself  it  is  binding  upon 
all  parties,  but  where  it  is  written  above  the  sigTiature  of  an  indorser 
it  binds  him  only. 
1899,  c.  733,  s.  110. 

2261.  Unnecessary  when  protest  waived.  A  waiver  of  pro- 
test, whether  in  the  case  of  a  foreign  bill  of  exchange  or  other  nego- 
tiable instrument,  is  deemed  to  be  a  waiver  not  only  of  a  formal 
protest  but  also  of  a  presentment  and  notice  of  dishonor. 

1899,  c.  73.3,  s.  111. 

2262.  Dispensed  with,  when.  N^otice  of  dishonor  is  dispensed 
with  when,  after  the  exercise  of  reasonable  diligence,  it  can  not 
be  given  to  or  does  not  reach  the  pai-ties  sought  to  be  charged. 

1899,  c.  733,  s.  112. 

2263.  Delay  in  giving,  excused,  when.  Delay  in  giving  notice 

of  dishonor  is  excused  when  the  delay  is  caused  by  circumstances 
beyond  the  control  of  the  holder  and  not  imputable  to  his  default, 
misconduct  or  negligence.    When  the  cause  of  delay  ceases  to  operate, 
notice  must  be  given  with  reasonable  diligence. 
1899,  c.  733,  s.  113. 

2264.  Not   required,   when.   iSTotice  of  dishonor   is   not  required 

to  be  given  to  the  drawer  in  either  of  the  following  cases:  (1)  Where 
the  drawer  and  the  drawee  are  the  same  person;  (2)  where  the 
drawee  is  a  fictitious  person  or  a  person  not  having  capacity  to  con- 
tract; (3)  where  the  drawer  is  the  person  to  whom  the  instrument 
is  presented  for  payment;  (4)  where  the  drawer  has  no  right  to 
expect  or  require  that  the  drawee  or  acceptor  will  honor  the  instru- 
ment; (5)  where  the  drawer  has  countermanded  payment. 
1899,  c.  733,  s.  114. 

2265.  To  indorser,  not  required,  when.  Xoticc  of  dishonor  is 

not  required  to  be  given  to  an  indorser  in  cither  of  the  following 
cases:  (1)  Where  the  drawee  is  a  fictitious  person  or  a  person  not 
having  capacity  to  contract  and  the  indorser  was  aware  of  the  fact  at 
the  time  he  indorsed  the  instrument;  (2)  whei"e  the  indorser  is  the 
person  to  whom  the  instrument  is  presented  for  payment;  (3)  where 
the  instrument  was  made  or  accepted  for  his  accommodation. 
1899,  c.  733,  s.  115. 

()74 


2266  A^EGOTIABLE  INSTS.— X.  Dishonor.  Cli.   54 

2266.  Notice  of  nonacceptance  makes  unnecessary.  Where 

due  notice  of  dishonor  by  nonaccei^tance  has  been  given,  notice  of  a 
subsequent  dishonor  by  nonijayment  is  not  necessary  unless  in  the 
meantime  the  instrument  has  been  accepted. 
1899,  c.  733,  s.  IIG. 

2267.  Effect  of  failure  to  give  notice  of  nonacceptance.  An 

omission  to  give  notice  of  dishonor  by  nonacceptance  does  not  preju- 
dice the  rights  of  a  liolder  in  due  course  subsequent  to  the  omis- 
sion. 

1899,  c.  733,  s.  117. 

2268.  Protest  not  required,  except  of  foreign  bills  of  exchange. 

Where  any  negotiable  instrument  has  been  dishonored  it  may  be 
protested  for  nonacceptance  or  nonpayment  as  the  case  may  be,  but 
protest  is  not  required  except  in  the  case  of  foreign  bills  of  ex- 
change. 

1899,  c.  733,  s.  118. 

XI.     Discharge  of. 

2269.  What  constitutes.  A  negotiahle  instrument  is  discharged 
(1)  by  payment  in  due  course  by  or  on  behalf  of  the  principal 
debtor;  (2)  by  payment  in  due  course  by  the  party  accommodated, 
where  the  iilstrument  is  made  or  accepted  for  accommodation;  (3) 
by  the  intentional  cancellation  thereof  by  the  holder;  (4)  by  any 
other  act  which  will  discharge  a  simple  contract  for  the  payment  of 
money;  (5)  Avhen  the  principal  debtor  becomes  the  holder  of  the 
instrument  at  or  after  maturity  in  his  own  right. 

1899,  c.  733,  s.  119. 

2270.  When  one  secondarily  liable  discharged.  A  person  sec- 
ondarily liable  on  the  instrument  is  discharged  ( 1 )  by  any  act  which 
discharges  the  instrument;  (2)  by  the  intentional  cancellation  of  his 
signature  by  the  holder;  (3)  by  the  discharge  of  a  prior  party;  (4) 
by  a  valid  tender  of  payment  made  by  a  prior  party ;  ( 5 )  by  a 
release  of  the  principal  debtor,  unless  the  holder's  right  of  recourse 
against  the  party  secondarily  liable  is  expressly  reserved;  (6)  by 
any  agreement  binding  upon  the  holder  to  extend  the  time  of  pay- 
ment or  to  postpone  the  holder's  right  to  enforce  the  instrument, 
unless  made  with  the  assent  of  the  party  secondarily  liable  or  unless 
the  right  of  recourse  against  such  party  is  expressly  reserved. 

1899,  c.  733,  s.   120. 

2271.  Payment  by  party  secondarily  liable  is  not.  When  the 

instrument  is  paid  by  a  party  secondarily  liable  thereon  it  is  not 
discharged;  but  the  party  so  paying  it  is  remitted  to  his  former 


2271  NEGOTIABLE  I'NSTS.—XI.  Discharge.  Ch.   54 

rights  as  regards  all  prior  parties,  and  lie  may  strike  out  his  own 
and  all  subsequent  indorsements,  and  again  negotiate  the  instrument, 
except  (1)  where  it  is  payable  to  the  order  of  the  third  person  and 
has  been  paid  by  the  drawer;  and  (2)  Avhere  it  was  made  or 
accepted  for  accommodation  and  has  been  paid  bv  the  party  accom- 
modated. 

1899,  c.  733,  s.  121. 

2272.  Holder  may  renounce  in  writing  his  rights  against  any 

party.  The  holder  may  expressly  renounce  his  rights  against  any 
party  to  the  instrument  before,  at  or  after  its  maturity.  An  abso- 
lute and  imconditional  renunciation  of  his  rights  against  the  princi- 
pal debtor  made  at  or  after  the  maturity  of  the  instrument  discharges 
the  instrument.  But  a  renunciation  does  not  affect  the  rights  of  a 
holder  in  due  course  without  notice.  A  renunciation  must  be  in 
writing,  unless  the  instrument  is  delivered  up  to  the  person  prima- 
rily liable  thereon. 
1899,  c.  733,  s.  122. 

2273.  Cancellation    by   mistake   inoperative.   A  cancellation 

made  unintentionally  or  under  a  mistake  or  without  the  authority 
of  the  holder  is  inoperative,  but  where  an  instrument  or  any  signa- 
ture thereon  appears  to  have  been  cancelled  the  burden  of  proof  lies 
on  the  party  who  alleges  that  the  cancellation  was  made  unintention- 
ally or  under  a  mistake  or  without  authority. 
1899,  c.  733.  s.  123. 

2274.  Material  alteration  without  assent  avoids.  Where  a  ne- 
gotiable instrument  is  materially  altered  without  the  assent  of  all 
parties  liable  thereon,  it  is  avoided  except  as  against  a  party  who 
has  himself  made,  authorized  or  assented  to  the  alteration  and  subse- 
quent indorsers.  But  when  an  instrument  has  been  materially 
altered  and  is  in  the  hands  of  a  holder  in  due  course  not  a  party 
to  the  alteration  he  may  enforce  payment  thereof  according  to  its 
original  tenor. 

1899,  e.  733,  s.  124. 

2275.  Material  alteration  defined.  Any  alteration  which  changes 
(1)  the  date;  (2)  the  sum  payable  either  for  principal  or  interest; 
(3)  the  time  or  place  of  payment;  (4)  the  number  or  the  relation 
of  the  parties;  (5)  the  medium  or  currency  in  which  payment  is  to 
be  made ;  or  which  adds  a  place  of  payment  where  no  place  of  pay- 
ment is  specified,  or  any  other  change  or  addition  which  alters  the 
effect  of  the  instrument  in  any  respect,  is  a  material  alteration. 

1899,  c.  73.3,  s.  125. 


2i'76  :NEG0TIABLE  mSTS.—XII.  Form,  etc.  Cli.   5-t 

XII.     Bills,  Form  and  Inteepeetation. 

2276.  Bills  defined.  A  bill  of  exchange  is  an  unconditional  order 
in  writing,  addressed  by  one  person  to  another,  signed  by  the  jDerson 
giving  it,  requiring  the  person  to  whom  it  is  addressed  to  pay  on 
demand  or  at  a  fixed  or  determinable  future  time  a  sunreertaJB  in 
money  to  order  or  to  bearer. 

1899,  c.  733.  s.  126. 

2277.  Not  assignment  of  fund.  A  bill  of  itself  does  not  oper- 
ate as  an  assignment  of  the  funds  in  the  hands  of  the  drawee  availa- 
ble for  the  payment  thereof,  and  the  drawee  is  not  liable  on  the 
bill  unless  and  until  he  accepts  the  same. 

1899,  c.  733,  s.  127. 

2278.  May  be  addressed  to  two  or  more  drawees  jointly  but  not 

in  alternative.  A  bill  may  be  addressed  to  two  or  more  drawees 
jointly,  whether  they  are  partners  or  not,  but  not  to  two  or  more 
drawees  in  the  alternative  or  in  succession. 
1899,  e.  733,  s.  128. 

2279.  Inland  bill  defined.  An  inland  bill  of  e.xchange  is  a  bill 
which  is  or  on  its  face  purports  to  be  both  drawn  and  payable  within 
this  state.  Any  other  bill  is  a  foreig-n  bill.  Unless  the  contrary 
appears  on  the  face  of  the  bill  the  holder  may  treat  it  as  an  inland 
bill. 

1899,  c.  733,  s.  129. 

2280.  When  holder  may  treat  as  bill  or  note.  Where  in  a  bill 

•drawer  and  drawee  are  the  same  person,  or  where  the  drawee;  is  a 
fictitious   person  or   a  person  not  having  capacity  to  contract,   the 
holder  may  treat  the  instrument  at  his  option,  either  as  a  bill  of 
€xchauge  or  a  promissory  note. 
1899,  c.  733,  s.  130. 

2281.  Referee  in  case  of  need.  The  drawer  of  a  bill  and  any 
endorser  may  insert  thereon  the  name  of  a  person  to  whom  the 
holder  may  resort  in  case  of  need :  that  is  to  say,  in  case  the  bill 
is  dishonored  by  nonaeceptance  or  nonpayment.  Such  person  is 
called  the  referee  in  case  of  need.  It  is  in  the  option  of  the  holder 
to  resort  to  the  referee  in  case  of  need  or  not,  as  he  may  see  fit. 

1899,  c.  733,  s.  131. 

XIII.     Acceptance. 

2282.  Defined.  The  acceptance  of  a  bill  is  the  signification  by 
the  drawee  of  Iiis  assent  to  the  order  of  the  drawei'.     The  acceptance 


2282  NEGOTIABLE  IXSTS.— A'///.  Acceptance.  Ch.   r.-i 

must  be  in  writing  and  signed  by  the  drawer.     It  must  not  express 
that  the  drawee  will  perform  his  promise  by  any  other  means  than 
the  payment  of  money. 
1899,  e.  733.  s.  132. 

2283.  Must  be  written  on  bill.  The  holder  of  a  bill  presenting 
the  same  for  acceptance  may  require  that  the  acceptance  be  written 
on  tlie  bill,  and  if  such  request  is  refused,  may  treat  the  bill  as 
dishonored. 

1899,  c.  733,  s.  133. 

2284.  Effect  of,  on  paper  other  than  bill.  Where  an  acceptance 

is  written  on  a  paper  other  than  the  bill  itself  it  does  not  bind  the 
acceptor  except  in  favor  of  a  person  to  whom  it  is  shown  and  who, 
on  the  faith  thereof,  receives  the  bill  for  value. 
1899,  c.  733,  s,  134. 

2285.  Unconditional  promise  in  writing  to  accept  valid,  when. 

An  unconditional  promise  in  writing  to  accept  a  bill  before  it  is 
drawn   is  deemed  an   actual  acceptance   in   favor  of  every  person 
who,  upon  the  faith  thereof,  receives  the  bill  for  value. 
1899,  c.  733,  s.  135. 

2286.  Twenty-four   hours   allowed   drawee   to    accept.    The 

drawee  is  allowed  twenty-four  hours  after  presentment  in  which  to 
decide  whether  or  not  he  will  accept  the  bill,  but  the  acceptance,  if 
given,  dates  as  of  the  day  of  presentation. 
1899,  c.  733,  s.  136. 

2287.  Destruction  of,  or  failure  to  return,  bill  deemed  accept- 
ance. Where  a  drawee  to  whom  a  bill  is  delivered  for  acceptance 
destroys  the  same  or  refuses  within  twenty-four  hours  after  such 
delivery,  or  within  such  other  period  as  the  holder  may  allow,  to 
return  the  bill  accepted  or  nonaccepted  to  the  holder,  he  will  be 
deemed  to  have  accepted  the  same. 

1899,  c.  73.3,  s.  137. 

2288.  May  be  accepted  before  signed,  when  overdue,  etc.  A 

bill  may  be  accepted  before  it  has  been  signed  by  the  drawer  or  while 
otherwise  incomplete,  or  when  it  is  overdue,  or  after  it  has  been  dis- 
honored by  a  previous  refusal  to  accept,  or  by  nonpayment.  I^ut 
when  a  bill  payable  after  sight  is  dishonored  by  nonacceptance  and 
the  drawee  subsequently  accepts  it,  the  holder,  in  the  absence  of  any 
different  agreement,  is  entitled  to  have  the  bill  accepted  as  of  the 
date  of  the  first  presentment. 
1899,  c.  733.  s.  138. 

078 


2289         NEGOTIABLE  INSTS.— ZZ/7.  Acceptajice.         Ch.  54 

2289.  General  and  qualified.  An  acceptance  is  either  general 
or  qualified.  A  general  acceptance  assents  without  qualification  to 
the  order  of  the  drawer.  A  qualified  acceptance  in  express  terms 
varies  the  effect  of  the  bill  as  drawn. 

1899,  c.  733,  s.  139. 

2290.  What  is  general.  An  acceptance  to  pay  at  a  particular 
place  is  a  general  acceptance  unless  it  expressly  states  that  the  bill 
is  to  be  paid  there  only  and  not  elsewhere. 

1899,  c.  733,  s.  140. 

2291.  What  is  qualified.  An  acceptance  is  qualified  which  is 
d)  conditional;  that  is  to  say,  which  makes  payment  by  the 
acceptor  dependent  on  the  fulfillment  of  a  condition  therein  stated ; 
(2)  partial;  that  is  to  say,  an  acceptance  to  pay  part  only  of  the 
amount  for  which  the  bill  is  drawn;  (3)  local;  that  is  to  say,  an 
acceptance  to  pay  only  at  a  particular  place;  (4)  qualified  as  to 
time;  (5)  the  acceptance  of  some  one  or  more  of  the  drawees,  hut 
not  of  all. 

1899,  c.  733,  s.  141. 

2292.  Holder  may  refuse  qualified  acceptance  and  treat  bill 

as  dishonored.  Tlie  holder-  may  refuse  to  take  a  qualified  accept- 
ance, and  if  he  does  not  obtain  an  unqualified  acceptance  he  may 
treat  the  bill  as  dishonored  by  nonacceptance.  When  a  qualified 
acceptance  is  taken  the  drawer  and  endorsers  are  discharged  from 
liability  on  the  bill  unless  they  have  expressly  or  imjjliedly  author- 
ized the  holder  to  take  a  qualified  acceptance  or  subsequently  assent 
thereto.  When  the  drawer  or  an  indorser  receives  notice  of  a  qviali- 
fied  acceptance  he  must,  within  a  reasonable  time,  express  his  dis- 
sent to  the  holder  or  he  will  be  deemed  to  have  assented  thereto. 
1899,  c.  733,  s.  142. 

XIV.     Presentment   fob  Acceptance. 

2293.  Necessary,  in  what  cases.  Presentment  for  acceptance 
must  be  made  (1)  where  the  bill  is  payable  after  sight,  or  in  any 
other  case  where  presentment  for  acceptance  is  necessary  in  order 
to  fix  the  maturity  of  the  instrument;  or  (2)  where  the  bill  expressly 
stipulates  that  it  shall  be  presented  for  acceptance;  or  (3)  where 
the  bill  is  drawn  payable  elsewhere  than  at  the  residence  or  place 
of  business  of  the  drawee.  In  no  other  case  is  presentment  for 
acceptance  necessary  in  order  to  render  any  party  to  the  bill  liable. 

1899,  c.  733,  s.  143. 

679 


2294         NEGOTIABLE  TNSTS.— A'/F.  Acceptance.         Ch.  54 

2294.  Failure  to  present  in  reasonable  time  discharges  drawee 

and  indorsers.  Except  as  herein  otherwise  provided  the  holder  of 
a  bill  which  is  required  by  the  next  preceding  section  to  be  pre- 
sented for  accei3tanee  must  either  present  it  for  acceptance  or  nego- 
tiate it  within  a  reasonable  time.  If  he  fail  to  do  so  the  drawee 
and  all  indorsers  are  discharged. 

1899,  c.  733,  s.  144. 

2295.  How  made.  Presentment  for  acceptance  must  be  made  by 
or  on  behalf  of  the  bolder,  at  a  reasonable  hour  on  a  business  day 
and  before  the  bill  is  overdue,  to  the  drawee  or  some  person  author- 
ized to  accept  or  refuse  acceptance  on  his  behalf;  and  (1)  where  a 
bill  is. addressed  to  two  or  more  drawees  who  are  not  partners,  pre- 
sentment must  be  made  to  them  all  unless  one  has  authority  to 
accept  or  refuse  acceptance  for  all,  in  which  case  presentment  may 
be  made  to  him  only;  (2)  M-here  the  drawee  is  dead  presentment 
may  be  made  to  his  personal  representative;  (3)  where  the  drawee 
has  been  adjudged  a  bankrupt  or  an  insolvent  or  has  made  an  assign- 
ment for  the  benefit  of  creditors  presentment  may  be  made  to  him 
or  to  his  trustee  or  assig-nee. 

1899,  c.  733,  s.  145. 

2296.  On  what  day  presented.  A.  bill  may  be  presented  for 
acceptance  on  any  day  on  which  negotiable  instruments  may  be 
presented  for  payment  under  the  provisions  of  this  chapter.  Wlien 
Saturday  is  not  a  holiday  presentment  for  acceptance  may  be  made 
before  twelve  o'clock  noon  on  that  day. 

1899,  c.  733,  s.  146. 

2297.  Excused,  when;  can  not  be  made  before  due.  Where  the 

holder  of  a  bill  drawn  payable  elsewhere  than  at  the  place  of  busi- 
ness or  the  residence  of  the  drawee  has  not  time  with  the  exercise 
of  reasonable  diligence  to  present  the  bill  for  acceptance  before  pre- 
senting it  for  payment  on  the  day  that  it  falls  due,  the  delay  caused 
by  presenting  the  bill  for  acceptance  before  presenting  it  for  pay- 
ment is  excused  and  does  not  discharge  the  drawers  and  indorsers. 
1899.  c.  733,  s.  147. 

2298.  Excused  and  bill  treated  as  dishonored.  Presentment  for 

acceptance  is  excused  and  a  bill  may  be  treated  as  dishonored  by 
nonacceptance  in  either  of  the  following  cases:  (1)  AVhere  the 
drawee  is  dead  or  has  absconded  or  is  a  fictitious  person  or  a  per- 
son not  having  capacity  to  contract  by  bill;  (2)  where  after  the 
exercise  of  reasonable  diligence  presentment  can  not  be  made;  ('■)) 
where,  although  presentment  has  been  irregular,  acceptance  has  lieen 
refused  on  some  ground. 
1899,  c.  733,  s.  148. 


2299         NEGOTIABLE  INSTS.— Z77.  Acceptance.         Ch.  54 

2299.  When  bill  dishonored  by  nonacoeptance.  A  bill  is  dis- 
honored by  noil  acceptance  (1)  when  it  is  duly  presented  for  accept- 
ance and  such  an  acceptance  as  is  prescribed  in  this  chapter  is  re- 
fused or  can  not  be  obtained ;  or  (2)  when  a  presentment  for  accept- 
ance is  executed  and  the  bill  is  not  accepted. 

1899,  c.  733,  s.  149. 

2300.  When  bill  must  be  treated  as  dishonored.  Where  a  bill 

is  duly  presented  for  acceptance  and  is  not  accepted  within  the  pre- 
scribed time,  the  person  i^resentiug  it  must  treat  the  bill  as  dishon- 
ored by  nonacceptance  or  he  loses  the  right  of  recourse  against  the 
drawer  and  indorsers. 
1899,  c.  733,  s.  150. 

2301.  Bill  dishonored  by  nonacoeptance,  holder  has  recourse 

on  drawer  and  indorsers.  When  a  bill  is  dishonored  by  nonaccept- 
ance an  immediate  right  of  recourse  against  the  drawers  and  indors- 
ers accrues  to  the  holder  and  no  jJi'esentment  for  payment  is  nec- 
essary. 

1899,  c.  733,  s.  151. 

XV.     Pkotest. 

2302.  Necessary  only  on  foreign  bills.  Where  a  foreign  bill 

appearing  on  its  face  to  be  such  is  dishonored  by  nonacceptance,  it 
must  be  duly  protested  for  nonacceptance,  and  where  such  a  bill 
which  had  not  jireviously  been  dishonored  by  ■nonacceptance  is  dis- 
honored by  nonpayment  it  must  be  duly  protested  for  nonpayment. 
If  it  is  not  so  protested  the  drawer  and  indorsers  are  discharged. 
Where  a  bill  does  not  appear  on  its  face  to  be  a  foreign  bill  protest 
in  case  of  dishonor  is  unnecessary. 

1899,  c.  733,  s.  152. 

2303.  Annexed  to  bill,  specifies  what.  The  protest  must  be  an- 
nexed to  the  bill  or  must  contain  a  copy  thereof  and  must  be  under 
the  hand  and  seal  of  the  notary  making  it,  and  must  specify  (1) 
the  time  and  place  of  presentment;  (2)  the  fact  that  presentment 
was  made  and  the  manner  thereof;  (3)  the  cause  or  reason  for  pro- 
testing the  bill;  (4)  the  demand  made  and  the  answer  given,  if  any, 
or  the  fact  that  the  drawee  or  acceptor  could  not  be  found. 

1899,  c.  733,  s.  153. 

2304.  By  whom  made.  Protest  may  be  made  by  (1)  a  notary 
public;  or  (2)  by  any  respectable  resident  of  the  place  where  the 
bill  is  dishonored,  in  the  presence  of  two  or  more  credible  wit- 
nesses. 

1899,  c.  733.  s.  154. 

681 


2305  NEGOTIABLE  IXSTS.— XT.  Protest.  Ch.  o-i 

2305.  Must  be  made  on  day  of  dishonor.  When  a  bill  is  pro- 
tested, such  protest  must  be  made  on  the  day  of  its  dishonor,  unless 
delay  is  excused  as  herein  provided.  When  a  bill  has  been  dulj' 
noted  the  protest  may  be  subsequently  extended  as  of  the  date  of  the 
noting. 

1899,  c.  733,  s.  155. 

2306.  At  what  place  made.  A  bill  must  be  protested  at  the 
place  where  it  is  dishonored,  except  that  when  a  bill  drawn  paya- 
ble at  the  place  of  business  or  residence  of  some  person  other  than 
the  drawee  has  been  dishonored  by  nonacceptanee  it  must  be  pro- 
tested for  nonpayment  at  the  place  where  it  is  expressed  to  be  paya- 
ble, and  no  further  presentment  for  payment  to  or  demand  on  the 
drawee  is  necessary. 

1899,  c.  733,  s.  156. 

2307.  For  nonpayment,  after,  for  nonacceptanee.  A  bill  which 

has  been  protested  for  nonacceptanee  may  be  subsequently  protested 
for  nonpayment. 
1899,  c.  733,  s.  157. 

2308.  Before  maturity,  in  bankruptcy,  etc.  Where  the  acceptor 

has  been  adjudged  a  bankrupt  or  an  insolvent  or  has  made  an  assign- 
ment for  the  benefit  of  creditors  before  the  bill  matures,  the  holder 
may  cause  the  bill  to  be  protested  for  better  security  against  the 
drawer  and  indorsers. 
1899,  c.  733,  s.  158. 

2309.  Dispensed  with,  when.  Protest  is  dispensed  with  by  any 
circumstances  which  would  dispense  with  notice  of  dishonor.  Delay 
in  noting  or  protesting  is  exciised  when  delay  is  caused  by  circum- 
stances beyond  the  control  of  the  holder  and  not  imputable  to  his 
default,  misconduct  or  negligence.  When  the  cause  of  delay  ceases 
to  operate  the  bill  must  be  noted  or  protested  with  reasonable  dili- 
gence. 

1899,  c.  733,  s.  159. 

2310.  On  copy  of  lost  bill.  Where  a  bill  is  lost  or  destroyed  or 
is  wrongly  detained  from  the  person  entitled  to  hold  it,  protest  may 
be  made  on  a  copy  or  written  particulars  thereof. 

1899,  c.  73.3,  s.  160. 

XVI.     Acceptance  foe  Honor. 

2311.  When  may  be  made.  Where  a  bill  of  exchange  has  been 
protested  for  dislidunr  liy  nonacceptanee  or  protested  for  better  secu- 


2311      NEGOTIABLE  INSTS.— ZF/.  Accepta7ice,  etc.      Ch.  5i 

rity,  and  is  not  overdue,  any  person  not  being  a  party  already  liable 
thereon  may,  with  the  consent  of  the  holder,  intervene  and  accept 
the  bill  supra  protest  for  the  honor  of  any  party  liable  thereon  or 
for  the  honor  of  the  person  for  whose  account  the  bill  is  drawn. 
The  acceptance  for  honor  may  be  part  only  of  the  sum  for  which 
the  bill  is  drawn,  and  where  there  has  been  an  acceptance  for  honor 
for  one  party  there  may  be  a  further  acceptance  by  a  different  person 
for  the  lionor  of  anotlier  party. 
1899,  c.  733.  s.  161. 

2312.  How  made.  An  acceptance  for  honor  supra  protest  must 
be  in  writing  and  indicate  that  it  is  an  acceptance  for  honor,  and 
must  be  signed  by  the  acceptor  for  honor. 

1899,  c.  733.  s.  162. 

2313.  Deemed  for  honor  of  drawer.  Where  an  acceptance  for 

honor  does  not  exjiressly  state  for  whose  honor  it  is  made,  it  is 
deemed  to  be  an  acceptance  for  the  honor  of  the  drawer. 
1899,  0.  733.  s.  163. 

2314.  Liability  on.  The  acceptor  for  honor  is  liable  to  the  holder 
and  to  all  parties  to  the  bill  subsequent  to  the  party  for  whose  honor 
he  has  accepted. 

1899,  0.  733.  s.  164. 

2315.  Liable,  when.  The  acceptor  for  honor  by  such  acceptance 
engages  that  he  will  on  due  presentment  pay  the  bill  according  to 
the  terms  of  his  acceptance,  provided  it  shall  not  have  been  paid  by 
the  drawee ;  and  provided  also,  that  it  shall  have  been  duly  presented 
for  payment  and  protested  for  nonpayment  and  notice  of  dishonor 
given  to  him. 

1899,  e.  733.  s.  165. 

2316.  Maturity,  how  calculated.  Where  a  bill  payable  after 
sight  is  accepted  for  honor  its  maturity  is  calculated  from  the  date 
of  the  noting  for  nonacceptance  and  not  from  the  date  of  the  accept- 
ance for  honor. 

1899,  e.  733.  s.  166. 

2317.  Protest  before  presentment  to  acceptor.  Where  a  dis- 
honored bill  has  lx>cn  accepted  for  honor  supra  protest  or  contains 
a  reference  in  case  of  need,  it  must  be  protested  for  nonpayment 
before  it  is  presented  for  payment  to  the  acceptor  for  honor  or 
referee  in  case  of  need. 

1899,  c.  733.  s.  167. 

683 


2318      ]STEGOTIABLE  IKSTS.— A'T7.  Acceptance,  etc      Ch.  54 

2318.  How  presented  for  payment.  Presentment  for  payment 
to  the  acceptor  for  honor  must  be  made  as  follows:  (1)  If  it  is  to  be 
presented  in  the  place  where  the  protest  for  nonpayment  was  made 
it  must  be  presented  not  later  than  the  day  following  its  maturity; 
(2)  if  it  is  to  be  presented  in  some  other  place  than  the  j^lace 
where  it  was  protested,  then  it  must  be  forwarded  within  the  time 
in  this  chapter  specified. 

1899,  c.  733,  s.  168. 

2319.  Delay  in  presenting  to  acceptor  for  honor  or  referee  in 

case  of  need  excused,  when.   The  provisions  of  section  two  thou- 
.sand  two  hundred  and  thirty  apply  where  there  is  delay  in  mak- 
ing presentment  to  the  acceptor  for  honor  or  referee  in  case  of  need. 
1899,  c.  733.  s.  169. 

2320.  Protest  when  not  paid  by  acceptor.  When  the  bill  is 

dishonored  by  the  acceptor  for  honor  it  must  be  protested  for  non- 
payment by  him. 
1899,  c.  733.  s.  170. 

XVII.     Payjient  foe  Honok. 

2321.  After  protest.  Where  a  bill  has  been  protested  for  non- 
payment any  person  may  intervene  and  pay  it  supra  j^rotest  for 
the  honor  of  any  person  liable  thereon  or  for  the  honor  of  the  per- 
son for  whose  account  it  was  drawn. 

1899,  c.  733,  s.  171. 

2322.  IVIust  be  attested  by  notarial  act  of  honor.  The  payment 

for  honor  supra  protest  in  order  to  operate  as  such  and  not  as  a  mere 
voluntary  payment  must  be  attested   by  a  notarial   act  of  honor, 
which  may  be  appended  to  the  protest  or  form  an  extension  to  it. 
1899,  c.  733,  s.  172. 

2323.  Notarial  act  of  honor,  on  what  founded.  The  notarial 

act  of  honor  must  be  founded  on  a  declaration  made  by  the  payer 
for  honor  or  by  his  agent  in  that  behalf  declaring  his  intention  to 
pay  the  bill  for  honor  and  for  whose  iionor  he  pays. 
1899,  c.  733.  s.  173. 

2324.  Who  given  preference  in.     wiicre  two  or  more  persons 

offer  to  pay  a  bill  for  the  honor  of  different  i)arties  the  person  whose 
payment  will  discharge  most  parties  to  the  bill  is  to  be  given  the 
preference. 

1899,  c.  733,  s.  174. 


L':;25       ]STEGOTIABLE  INSTS.— ZF//.  Payment,  etc.       Ch.   54 

2325.  Discharges  all  subsequent  parties.  Where  a  bill  has  been 

]iaid  for  honor  all  parties  subsequent  to  the  party  for  whose  honor 
it  is  paid  are  discharged,  but  the  payer  for  honor  is  subrogated  for 
and  succeeds  to  both  the  rights  and  duties  of  the  holder  as  regards 
rlie  party  for  whose  honor  he  pays  and  all  parties  liable  to  the 
latter. 

1899,  c.  733,  s.  175. 

2326.  Refusing  payment  forfeits  rights.  Where  the  holder  of 

r.  bill  refuses  to  receive  payment  supra  protest  he  loses  his  right  of 
recourse  against  any  party  who  would  have  been  discharged  by  such 
pajTnent. 

1899,  c.  733,  s.  176. 

2327.  Payer  for  honor  entitled  to  bill  and  protest.  The  payer 

for  honor  on  paying  to  the  holder  the  amount  of  the  bill  and  the 
notarial  expenses  incidental  to  its  dishonor  is  entitled  to  receive  both 
the  bill  itself  and  the  protest. 
1899.  c.  733.  s.  177. 

XVIII.     Bills  in  a  Set. 

2328.  Constitute  one  bill.  Where  a  bill  is  drawn  in  a  set,  each 
part  of  the  set  being  numbered  and  containing  a  reference  to  the 
other  parts,  the  whole  of  the  parts  constitute  one  bill. 

1899,  c.  733.  s.  178. 

2329.  Two  or  more  parts  negotiated,  holder  whose  title  first 

accrues  owner.  Where  two  or  more  parts  of  a  set  are  negotiated  to 
different  holders  in  due  course  the  holder  whose  title  first  accrues 
is,  as  between  such  holders,  the  true  owner  of  the  bill.  But  nothing 
in  this  section  aft'ects  the  rights  of  a  person  who  in  due  course  accepts 
or  pays  the  part  first  presented  to  him. 
1899,  c.  73.3.  s.  179. 

2330.  Indorser  liable  for  all  he  indorses.  Where  the  holder  of 

a  set  indorses  two  or  more  parts  to  different  persons  he  is  liable  on 
every  such  part,  and  every  indorser  subsequent  to  him  is  liable  on 
the  part  he  has  himself  indorsed  as  if  such  parts  were  separate  bills. 
1899,  c.  733,  s.  180. 

2331.  Acceptor  liable  for  all  he  accepts.  The  acceptance  may 
be  written  on  any  part  and  it  must  be  written  on  one  part  only.  If 
the  drawee  accepts  more  than  one  part  and  such  accepted  parts  are 
negotiated  to  different  holders  in  due  course  he  is  liable  on  every 
such  part  as  if  it  were  a  separate  bill. 

1899,  c.  733.  a.  181. 

685 


2332     NEGOTIABLE  IXSTS.— XT7//.  Bills  in  a  Set.     Ch.  5-t 

2332.  Payment  of  part  does  not  release  from  outstanding  ac- 
cepted part.  When  the  acceptor  of  a  bill  drawn  in  a  set  pays  it 
without  requiring  the  part  bearing  his  acceptance  to  be  delivered 
up  to  him,  and  that  part  at  maturity  is  outstanding  in  the  hands  of 
a  holder  in  due  course,  he  is  liable  to  the  holder  thereon. 

1899,  c.  733,  s.  182. 

2333.  Payment  of  one  part  discharges  whole,  when.  Except 

as  herein  otherwise  provided  where  any  one  part  of  a  bill  drawn  in 
a  set  is  discharged  by  payment  or  otherwise  the  whole  bill  is  dis- 
charged. 

1899,  c.  733.  s.  183. 

XIX.     Peomissoey  Notes  axd  Checks. 

2334.  Negotiable  promissory  note  defined.  A  negotiable  prom- 
issory note  within  the  meaning  of  this  chapter  is  an  unconditional 
promise  in  writing  made  by  one  person  to  another,  signed  by  the 
maker,  engaging  to  pay  on  demand  or  at  a  fixed  or  determinable 
future  time  a  sum  certain  in  money  to  order  or  to  bearer.  Where  a 
note  is  drawn  to  the  maker's  own  order  it  is  not  complete  until 
indorsed  by  him. 

1899,  c.  733.  s.  184. 

2335.  Check  defined,  law  governing.  A  check  is  a  bill  of  e.\- 

cliange  drawn  on  a  bank  payable  on  demand.     Except  as  herein 
otherwise  provided  the  provisions  of  this  chapter  are  applicable  to 
a  bill  of  exchange  payable  on  demand  apply  to  a  check. 
1899,  c.  733,  s.  185. 

2336.  Failure  to  present  in  reasonable  time  discharges  drawer. 

A  check  must  be  presented  for  payment  within  a  reasonable  time 
after  its  issue  or  the  drawer  will  be  discharged  from  liability  thereon 
to  the  extent  of  the  loss  caused  by  the  delay. 
1899,  c.  733,  s.  186. 

2337.  Certification  of  check  an  acceptance.  Where  a  check 

is  certified  by  the  bank  on  which  it  is  drawn  the  certification  is 
equivalent  to  an  acceptance. 
1899,  c.  733,  s.  187. 

2338.  Certification  discharges  drawer  and  indorsers.  WHiere 

the  holder  of   a  check   procures   it   to   be   acccjitcd   or  certified   the 
drawer  and  all  indorsers  are  discharged  froni  liability  thereon. 
1899,  c.  733,  s.  188. 


2339    NEGOTIABLE  IXSTS.—Z7X.  Notes  and  Cliecls.    Ch.   54 

2339.  Check  not  assignment  of  funds.  A  check  of  itself  does 

not  oijerate  as  an  assignment  of  any  part  of  the  funds  to  the  credit 
of  the  drawer  with  the  bank,   and  the  bank  is  not  liable  to  the 
holder  unless  and  until  it  accepts  or  certifies  the  check. 
1899,  e.  733,  s.  189. 

XX.     Genekai.  Provisioxs. 

2340.  Terms  defined.  In  this  chapter,  unless  the  context  other- 
wise requires — 

"Acceptance"  means  an  acceptance  completed  by  delivery  or  notifi- 
cation. 

"Action"  includes  counterclaim  and  setoff. 

"Bank"  includes  any  person  or  association  of  persons  carrying 
on  the  business  of  banking,  whether  incorporated  or  not. 

"Bearer"  means  the  person  in  possession  of  a  bill  or  note  which 
is  payable  to  bearer. 

"Bill"  means  bill  of  exchange,  and  "note"  means  negotiable  prom- 
issory note. 

"Delivery"  means  transfer  of  possession,  actual  or  constructive, 
from  one  person  to  another. 

"Holder"  means  the  payee  or  indorsee  of  a  bill  or  note  who  is  in 
possession  of  it,  or  the  bearer  thereof. 

"Indorsement"  means  an  indorsement  completed  by  delivery. 

"Instrument"  means  negotiable  instniment. 

"Issue"  means  the  first  delivery  of  the  instrument,  complete  in 
form,  to  a  person  who  takes  it  as  a  holder. 

"Person"  includes  a  body  of  persons,  whether  incorporated  or  not. 

"Value"  means  valuable  consideration. 

"Written"  includes  printed,  and  "writing"   includes  print. 
1899,  e.  733,  s.   191. 

2341.  Rules  of  construction.  Where  the  language  of  the  instru- 
ment is  ambiguous  or  there  are  omissions  therein,  the  following  rules 
of  construction  apply : 

1.  Where  the  sum  payable  is  expressed  in  words  and  also  in  fig- 
ures and  there  is  a  discrepancy  between  the  two,  the  sum  denoted 
by  the  words  is  the  sum  payable ;  but  if  the  words  are  ambiguous 
or  imcertain,  reference  may  be  had  to  the  figures  to  fix  the  amount. 

2.  Where  the  instrument  is  not  dated  it  will  be  considered  to 
be  dated  as  of  the  time  it  was  issued. 

3.  Where  there  is  conflict  between  the  written  and  printed  pro- 
visions of  the  instrument  the  written  provisions  prevail. 

4.  Where  the  instrument  is  so  ambiguous  that  there  is  doubt 
whether  it  is  a  bill  or  a  note  the  holder  may  treat  it  as  either  at  his 
election. 

687 


2341  ISTEGOTIABLE  IXSTS.— XT.   General  Provisions.     Ch.   54 

5.  "Where  a  signature  is  so  placed  upon  the  instrument  that  it  is 
not  clear  in  what  capacity  the  person  making  the  same  intended  to 
sign,  he  is  to  be  deemed  au  indorser. 

6.  Where  an  instrument  containing  the  words  "I  promise  to 
pay"  is  signed  by  two  or  more  persons,  they  arc  deemed  to  be  jointly 
and  severally  liable  thereon. 

1899,  c.  733,  s.  17. 

Note.     For  time  from  which  interest  runs,  see  s.  1952. 

2342.  Who  primarily  and  secondarily  liable.  The  person  pri- 
marily liable  on  an  instrument  is  the  person  who  by  the  terms  of  the 
instrument  is  absolutely  required  to  pay  the  same.  All  other  parties 
are  secondarily'  liable. 

1899,  c.  733,  s.  192. 

2343.  Reasonable  time  determined  by  usage.  In  determininu- 

what  is  reasonable  time  or  an  unreasonable  time  regard  is  to  Ih' 
had  to  the  nature  of  the  instrument,  the  usage  of  trade  or  business 
(if  any)  with  respect  to  such  instruments  and  the  facts  of  the  par- 
ticular case. 
1899,  c.  733.  s.  193. 

2344.  Law  merchant  applicable.  In  any  case  not  provided  for 
in  this  chapter  the  rules  of  the  law  merchant  shall  govern. 

1899,  c.  733,  s.  196. 

2345.  This  chapter  not  retroactive.  The  provisions  of  this  chap- 
ter do  not  apply  to  negotiable  instruments  made  and  delivered  prior 
to  the  eighth  day  of  March,  one  thousand  eight  hundred  and  ninety- 
nine. 

1899,  c.  733,  s.  197. 

2346.  This  chapter  not  to  authorize  certain  things.  Nothing 

in  this  chapter  shall  authorize  the  enforcement  of  an  authorization 
to  confess  judgment  or  a  Avaiver  of  homestead  and  personal  property 
exemptions  or  a  provision  to  pay  counsel  fees  for  collection  incorpo- 
lated  in  any  of  the  instruments  mentioned  in  this  chapter;  but  the 
mention  of  such  provisions  in  such  instrumonts  shall  not  affect  the 
other  terms  of  such  instruments  or  the  negotiability  thereof. 
1899,  c.  733,  s.  197;  1905,  c.  327. 


Note.     Instruments  falling  due  on  Sunday  or  holidays,  see  s.  2234. 
From  what  time  interest  to  run,  see  Interest,  s.  1952. 


2347  ISTOTARIES.  Ch.  55 


CHAPTEE  55. 
NOTARIES. 

(Sections  2347—2352.) 

2347.  Appointed  by  governor;  qualified  before  clerk.  The  gov- 
ernor may,  from  time  to  time,  at  his  discretion,  appoint  one  or  more 
fit  persons  in  every  covmty,  to  act  as  notaries  public,  who  shall  hold 
their  office  for  two  years  from  and  after  the  date  of  their  appoint- 
ment ;  and  on  exhibiting  their  commission  to  the  clerk  of  the  superior 
court  of  the  county  in  which  they  are  to  act,  shall  be  duly  qualified,  by 
taking  before  said  clerk  an  oath  of  ofiice,  and  the  oaths  prescribed 
for  oificers. 

Code,  s.  3304;  R.  C,  c.  75;  1777,  c.  118,  s.  15;  1881,  c.  317. 

2348.  Commission;  record  of  qualification  by  clerk.  The  gov- 
ernor shall  issue  to  each  a  commission,  a  certificate  of  which  shall 
be  deposited  Avith  the  clerk  of  the  court,  and  filed  among  the  records, 
and  he  shall  note  on  his  minutes  the  qualification  of  the  notary  public. 

Code,  s.  3305;   R.  C,  c.  75,  s.  2. 

2349.  Clerks  notaries  ex  officio;  may  certify  own  seals.  The 

clerks  of  the  superior  court  may  act  as  notaries  public,  in  their 
several  counties,  by  virtue  of  their  ofiice  as  clerks,  and  may  certify 
their  notarial  acts  under  the  seals  of  their  respective  courts. 

Code,  s.   3306;   R.  C,  c.   75,  s.   3;    1833,  c.   7,  ss.   1,  2. 

2350.  May  take  probates,  administer  oaths,  etc.   Notaries 

public,  in  and  out  of  the  state,  shall  have  power  to  take  and  certify 
the  acknowledgment  or  proof  of  powers  of  attorney,  mortgages,  deeds 
and  other  instrument  of  writing,  to  take  depositions  and  to  adminis- 
ter oaths  and  affirmations  in  matters  incident  or  belonging  to  the 
duties  of  their  office,  and  to  take  affidavits  to  be  used  before  a  court, 
judge  or  other  officer,  within  the  state,  and  shall  have  power  to 
take  the  privy  examination  of  femes  covert. 

Code,  s.  3307;   1866,  c.  30;    1879,  c.  128. 

Note.     For  powers  of  notary  of  another  state,  see  s.  990. 

2351.  May  exercise  power  in  other  than  own  county.  Notaries 

public  shall  have  full  power  and  authority  to  perform  the  functions 
of  their  office  in  any  and  all  counties  of  the  state,  and  full  faith  and 

Rev.  Vol  1—40  689 


2351  XOTARIES.  Ch.  55 

credit  shall  be  given  to  any  of  their  official  acts  wheresoever  the 
same  shall  be  made  and  done. 

1891.  e.  248. 

2351a.  Must  state  expiration  of  commission.  Notaries  public 

shall  state  after  each  otfieial  siy-nature  l>y  them  the  date  of  the  expira- 
tion of  their  commissions;  but  the  failure  to  do  so  shall  not  thereby 
invalidate  their  official  acts. 

2352.   Seal.   Official  acts  by  notaries  public  shall  be  attested  by 
their  notarial  seals. 


CHAPTEE  5(;. 

OATHS. 

(Sections  2353—2.36.3.) 

2353.  Oaths  administered  with   solemnity.   Whereas,  lawful 

oaths  for  the  discovery  of  truth  and  establishing  right  are  itecessary 
and  highly  condticive  to  the  important  end  of  good  government; 
and  being  most  solemn  appeals  to  Almighty  God,  as  the  omniscient 
witness  of  trutli  and  the  jttst  and  omnipotent  avenger  of  falsehood, 
sttch  oaths,  therefore,  otight  to  be  taken  and  administered  with  the 
utmost  solemnity. 

R.  C,  c.  70.  s.  1;   1777,  c.  108.  s.  2. 

2354.  How  administered.  Judges  and  justices  of  tlie  peace,  and 
other  persons  who  may  be  empowered  to  administer  oaths,  shall 
(except  in  the  cases  in  this  chapter  excepted)  require  the  party  sworn, 
to  lay  his  hand  tipon  the  Holy  Evangelists  of  Almighty  God,  in  token 
of  his  engagement  to  speak  the  truth,  as  he  hopes  to  be  saved  in 
the  way  and  method  of  salvation  pointed  out  in  that  blessed  volume ; 
and  in  further  token,  that,  if  he  should  swerve  from  the  truth,  he 
may  lie  justly  (]e]iri\'ed  of  all  the  bh-ssing  of  the  Gosjiel,  and  made 
liable  to  that  vengeance  which  he  lias  imprecated  on  his  own  head  ; 
and  he  shall  kiss  the  Holy  Gospel,  as  a  seal  of  confirmation  to  the 
said  engagements. 

Code,  s.  3309;  R.  C,  c.  76,  s.  1;  1777,  c.  108,  s.  2. 

2355.  Who  may  be  sworn  with  uplifted  hand;  form  of  affirma- 
tion. When  tlie  ]ierson  to  be  sworn  shall  be  conscientiously  scru])u 
lous  of  taking  a  book  oath  in  manner  aforesaid,  he  shall  be  excuscil 


L':;55  OATHS.  Cli.   56 

iVum  laying  hands  upon,  or  touching  the  Holy  Gospel;  and  the  oath 
I'  [nired  shall  be  administered  in  the  following  manner,  namely:  He 
^-liall  stand  with  his  right  hand  lifted  up  towards  heaven,  in  token 
'if  his  solemn  appeal  to  the  Supreme  God,  and  also,  in  token  that 
if  he  should  swer\-e  from  the  truth  he  would  draw  down  the  ven- 
L;(ance  of  heaven  upon  his  head,  and  shall  introduce  the  intended 
oath  .with  these  words,  namely: 

I,  A.  B.,  do  appeal  to  God,  as  a  w-itnesg  of  the  truth  and  the  avenger  of  false- 
hood, as  I  shall  answer  the  same  at  the  great  day  of  judgment,  when  the  secrets 
of  all  hearts  shall  be  known,   (etc.,  as  the  words  of  the  oath  may  be). 

Code,  s.  3310;  R.  C,  e.  76,  s.  2;   1777,  e.  108,  s.  3. 

2356.  How  Quakers,  Moravians,  etc.,  affirm.  The  solenm  atfir- 

mation  of  (Quakers,  iluravians,  Dunkers  and  ]\Icnnonists,  made  in 
the  manner  heretofore  used  and  accustomed,  shall  be  admitted  as 
evidence  in  all  civil  and  criminal  actions;  and  in  all  cases  where 
they  are  required  to  take  an  oath  to  support  the  constitution  of  the 
state,  or  of  the  United  States,  or  an  oath  of  office,  they  shall  make 
their  solemn  affirmation  in  the  words  of  the  oath  beginning  after 
the  word  "swear";  which  affirmation  shall  be  effectual  to  all  intents 
and  purposes. 

Code,  s.  3311;  R.  C,  e.  76,  s.  3;  1777,  c.  108,  s.  4:  1777,  c.  115,  s.  42;  1819, 
c.   1019;    1821,  c.   1112. 

2357.  Oath  to  support  constitution  of  United  States;  form  of; 

all  officers  to  take.  All  members  of  the  general  assembly,  and  all 
officers  who  shall  be  elected  or  appointed  to  any  office  of  trust  or 
profit  within  the  state,  shall,  agreeably  to  act  of  congress,  take  the 
following  oath  or  affirmation: 

I,  A.  B.,  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will  sup- 
port tlie  constitution  of  the  United  States;  so  help  me,  God. 

Which  oath  shall  be  taken  before  they  enter  upon  the  execution 
of  the  duties  of  the  office. 

Code,  s.  3313;  R.  C,  c.  76,  s.  5;  1791,  c.  342,  s.  2. 

2358.  Oath  or  affirmation  to  support  constitution;  form  of; 

taken  by  all  officers.  Every  member  of  the  general  assembly,  and 
every  person  who  shall  be  chosen  or  appointed  to  hold  any  office  of 
trust  or  profit  in  the  state,  shall,  before  taking  his  seat  or  entering 
upon  the  execution  of  the  office,  take  and  subscribe  the  following 
oath  or  affirmation : 

I,  A.  B.,  do  solemnly  and  siucerelj'  swear  (or  alTinn)  that  I  will  be  faithful 
and  bear  true  allegiance  to  the  .'state  of  North  Carolina,  and  to  the  constitutional 
powers  and  authorities  which  are  or  may  be  established  for  the  government 
thereof;  and  that  I  will  endeavor  to  support,  maintain  and  defend  the  constitu- 
tion of  said  state,  not  inconsistent  with  the  constitution  of  the  United  States, 
to  the  best  of  my  knowledge  and  ability;  so  help  me,  God. 

691 


2358  •    OATHS.  Ch.  56 

^Vhere  such  person  sliall  be  of  the  people  called  Quakers,  Mora- 
vians, Mcunonists  or  Dunkers,  he  shall  take  and  subscribe  the  ful- 
lowing  affirmation : 

I.  A.  B.,  do  solemnly  and  sincerely  declare  and  affirm  that  I  will  truly  and 
faithfully  demean  myself  as  a  peaceful  citizen  of  North  Carolina ;  that  I  will  be 
subject  to  the  powers  and  authorities  that  are  or  may  be  established  for  the 
good  government  thereof,  not  inconsistent  with  the  constitution  of  the  st;ite 
and  the  constitution  of  the  United  States,  either  by  yielding  an  active  or  passive 
obedience  thereto,  and  that  I  will  not  abet  or  join  the  enemies  of  the  state,  by 
any  means,  in  any  conspiracy  whatever,  against  the  state;  that  I  will  disclose 
and  make  known  to  the  legislative,  executive  or  judicial  powers  of  the  state 
all  treasonable  conspiracies  which  I  shall  know  to  be  made  or  intended  against 
the  state. 

Code,  s.  3312;   E.  C,  c.  76,  s.  4;   1781,  c.  342,  s.  1. 

2359.  When  deputies  may  administer.  In  all  cases  where  any 

civil  officer,  in  the  discharge  of  his  duties,  is  ijermitted  by  the  law 
to  administer  an  oath,  the  deputy  of  such  officer,  when  discharging 
such  duties,  shall  have  authority  to  administer  it,  provided  he  is 
a  sworn  officer;  and  the  oath  thus  administered  by  the  deputy  shall 
be  as  obligatory  as  if  administered  by  the  principal  officer,  and 
shall  be  attended  with  the  same  penalties  in  case  of  false  swearing. 
Code,  s.  3316;  R.  C,  c.  76,  s.  7;  1836.  c.  27,  s.  2. 

2360.  Oaths  of  sundry  persons,  forms  of.  The  oaths  of  office 

to  be  taken  by  the  several  persons  hereafter  named,  shall  be  in  the 
words  following  the  names  of  said  persons  respectively: 

ADMINISTKATOE. 

You  swear  (or  affirm)  that  you  believe  A.  B.  died  without  leaving  any  last 
will  and  testament;  that  you  will  well  and  truly  administer  all  and  singular 
the  goods  and  chattels,  rights  and  credits  of  the  said  A.  B.,  and  a  true  and 
perfect  inventory  thereof  return  according  to  law;  and  that  all  other  duties 
appertaining  to  the  charge  reposed  in  you,  you  will  well  and  truly  perform, 
according  to  law,  and  with  your  best  skill  and  ability;   so  help  you,  God. 

ATTORNEY  AT  LAW. 

I,  A.  B.,  do  swear  (or  affirm)  that  I  will  truly  and  honestly  demean  myself 
in  the  practice  of  an  attorney,  according  to  the  best  of  my  knowledge  and 
ability;   so  help  me,  God. 

ATTORNEY  GENERAL,   STATE  SOLICITORS  AND  COUNTY  ATTORNEYS. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  trulj'  serve  the 
State  of  North  Carolina  in  tne  office  of  attorney  general  (solicitor  for  the  State 
or  attorney  for  the  state  in  the  county  of  )  ;  I  will,  in  the  exe- 
cution of  my  office,  endeavor  to  have  the  criminal  laws  fairly  and  impartially 
administered,  so  far  as  in  me  lies,  according  to  the  best  of  my  knowledge  and 
abilitv;  so  help  me,  God. 

AUDITOR. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  1  will  well  and  truly  execute  the 
trust  reposed  in  me  as  auditor,  without  favor  or  partiality,  according  to  law, 
to  the  best  of  my  knowledge  and  ability;  so  help  me,  God. 


2;;(i()  OATHS.  Ch.  5G 


BOOK  DEBT  OATH. 

You  swear  (or  affirm)  that  the  matter  in  dispute  is  a  book  account;  that  you 
have  no  means  to  prove  the  delivery  of  such  articles,  as  you  propose  to  prove  by 
your  own  oath,  or  any  of  them,  but  by  yourself;  and  you  further  swear  that 
the  account  rendered  by  you  is  just  and  true;  and  that  you  have  given  all  just 
credits;  so  help  you,  God. 

BOOK  DEBT  OATH  FOR  ADMINISTRATOR. 

You,  as  e.xecutor  or  administrator  of  A.  B.,  swear  (or  affirm)  that  you  verily 
believe  this  account  to  be  just  and  true,  and  that  thei-e  are  no  witnesses,  to  your 
knowledge,  capable  of  proving  the  delivery  of  thel  articles  therein  charged;  and 
that  you  found  the  book  or  account  so  stated,  and  do  not  know  of  any  other  or 
further  credit  to  be  given  than  what  is  therein  given;  so  help  you,  God. 

CLERK  OF  THE  SUPREME  COURT. 

I,  A.  B.,  do  swear  (or  affirm)  that,  by  myself  or  any  other  person,  I  neither 
have  given,  nor  will  give,  to  any  person  whatsover,  any  gratuity,  gift,  fee  or 
reward,  in  consideration  of  my  appointment  to  the  office  of  clerk  of  the  supreme 
court  of  North  Carolina;  nor  have  I  sold,  or  offered  to  sell,  nor  will  I  sell,  or 
offer  to  sell,  my  interest  in  the  said  office;  I  also  solemnly  swear  that  I  do  not, 
directly  or  indirectly,  hold  any  other  lucrative  office  in  this  State;  I  do  further 
swear  that  I  will  execute  the  office  of  clerk  of  the  supreme  coui-t  without  preju- 
dice, favor,  affection  or  partiality,  to  the  best  of  my  skill  and  ability;  so  help 
me,  God. 

CLERK  OF  THE  SUPERIOR  COURT. 

I,  A,  B.,  do  swear  (or  affirm)  that,  by  myself  or  any  other  person,  I  neither 
have  given,  nor  will  I  give,  to  any  person  whatsoever,  any  gratuity,  fee,  gift  or 
reward,  in  consideration  of  my  election  or  appointment  to  the  office  of  clerk  of 

the  superior  court  for  the  county  of ;  nor  have  I  sold,  or  offered  to 

sell,  nor  will  I  sell  or  offer  to  sell,  my  interest  in  the  said  office;  I  also  solemnly 
swear  that  I  do  not,  directly  or  indirectly,  hold  any  other  lucrative  office  in  the 
state:  and  I  do  further  swear  that  I  will  execute  the  office  of  clerk  of  the  superior 
court  for  the  county  of without  prejudice,  favor,  affection  or  par- 
tiality, to  the  best  of  my  skill  and  ability;  =o  help  me,  God. 

COMMISSIONERS  ALLOTTING  A  YEAR'S  PROVISIONS. 

You  and  each  of  you  swear  (or  affirm)  that  you  vfiW  lay  off  and  allot  to  the 
petitioner  a  year's  provisions  for  herself  and  family,  according  to  law,  and  with 
your  best  skill  and  ability;  so  help  you,  God. 

COMMISSIONERS  DIVIDING  AND  ALLOTTING  REAL  ESTATE. 

You  and  each  of  you  swear  (or  affirm)  that,  in  the  partition  of  the  real  estate 
now  about  to  be  made  by  you,  you  will  do  equal  and  impartial  justice  among 
the  several  claimants,  according  to  their  several  rights,  and  agreeably  to  law; 
so  help  voii,  God. 

COMMISSIONER  OF  WRECKS. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  truly  and  faithfully  dis- 
charge the  duties  of  a  commissioner  of  wrecks,  for  the  district  of , 

in  the  county  of ,  according  to  law;   so  help  me,  God. 

CONSTABLE. 

1,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  truly  serve  the 
state  of  North  Carolina  in  the  office  of  constable;  I  will  see  and  cause  the  peace 
of  the  state  to  be  well  and  truly  preserved  and  kept,  according  to  my  power; 


2360  OATHS.  Cli.  -V; 

I  will  arrest  all  such  persons,  as  in  my  sight,  shall  ride  or  go  armed  offensively, 
or  shall  commit  or  make  any  riot,  affray  or  other  hreach  of  the  peace;  I  will  do 
my  best  endeavor,  upon  complaint  to  me  made,  to  apprehend  all  felons  and 
rioters  or  persons  riotously  assembled,  and  if  any  such  offenders  shall  makr 
resistance  with  force,  1  will  make  hue  and  cry,  and  will  pursue  them  according  to 
law,  and  will  faithfully  and  without  delay  execute  and  return  all  lawful  pre- 
cepts to  me  directed;  I  will  well  and  truly,  according  to  my  knowledge,  power 
and  ability,  do  and  execute  all  other  things  belonging  to  the  office  of  constable, 
so  long  as  I  shall  continue  in  office;  so  help  me,  God. 

COTTON  WEIGHER  FOR  PUBLIC. 

I ,  public  weigher  for  the  city  of   (or  as  the  case 

may  be),  do  solemnly  swear  that  I  will  justly,  impartially  and  without  any 
deduction,  except  as  may  be  allowed  by  law,  weigh  all  cotton  that  may  be  brought 
to  me  for  that  purpose,  and  tender  a  true  account  thereof  to  tht  parties  con 
cenied,  if  required  so  to  do;   so  help  me,  God. 

ENTRY-TAKER. 

I.  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  impartially  dis- 
charge the  several  duties  of  the  office  of  entrj'-taker  for  the  county  of  

according  to  law:  so  help  me,  God. 

EXECUTOR. 

You  swear  (or  allirm)  that  you  believe  this  writing  to  be  and  contain  the  la.st 
will  and  testament  of  A.  B..  deceased;  and  that  you  will  well  and  truly  execute 
the  same  by  first  paying  his  debts  and  then  his  legacies,  as  far  as  the  said 
estate  shall  extend  or  the  law  shall  charge  you;  and  that  you  will  well  and 
faithfully  execute  the  office  of  an  executor,  agreeably  to  the  trust  and  confidence 
reposed  in  you,  and  according  to  law;   so  help  you,  God. 

FINANCE  COMMITTEE. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  diligently  inquire  into  all 
matters  relating  to  the  receipts  and  disbursements  of  county  funds  and  a  true 
report  make,  without  partiality;  so  help  me,  God. 

GRAND  JURY— FOREMAN  OF. 

You,  as  foreman  of  this  gi-and  inquest  for  the  body  of  this  county,  shall  dili- 
gently inquire  and  true  presentment  make  of  all  such  matters  and  things  a< 
shall  be  given  you  in  charge;  the  state's  counsel,  your  fellows'  and  your  own 
you  shall  keep  secret ;  you  shall  present  no  one  for  en\-j',  hatred  or  malice : 
neither  shall  you  leave  any  one  unpresented  for  fear,  favor  or  affection,  reward 
or  the  hope  of  reward;  but  you  shall  present  all  things  truly,  as  they  come  to 
vuur  knowledge,  according  to  the  best  of  your  understanding;  -so  help  you,  God. 

GRAND  JURORS. 

Tlic  same  oath  which  your  foromnin  hath  taken  on  his  part,  you  and  each 
of  you  shall  well  and  truly  observe  and  keep  on  your  part ;  so  help  you,  God. 

GRAND   JURY— OFFICER   OF. 

You  swear  (or  affirm)  (hat  you  will  faithfiiUy  carrj'  all  papers  sent  from  the 
court  to  the  grand  jury,  or  from  the  grand  jury  to  the  court,  without  alteration 
or  erasenient,  and  without  disclosing  llic  contents  therof;  so  help  you,  God. 

004 


1   i':3r,o  OATHS.  •  Ch.  56 


JURY— OFFICER  OF. 

You  swear  (or  allirin)  that  you  will  keep  every  person,  sworn  pf  this  jury, 
together  in  some  private  or  convenient  place,  without  meat  or  drink  (water 
excepted).  You  shall  not  suffer  any  person  to  speak  to  them,  neither  shall  you 
speak  to  them  yourself,  unless  it  be  to  ask  them  whether  they  are  agreed  in 
their  verdict,  but  with  leave  of  the  court;  so  help  you,  God. 

JURY,   IN  A  CAPITAL   CASE. 

You  swear  (or  affirra)  that  you  will  well  and  truly  try,  and  true  deliverance 
make,  between  the  state  and  the  prisoner  at  the  bar,  whom  you  shall  have  In 
charge,  and  a  true  verdict  give  according  to  the  evidence;   so  help  you,  God. 

JURY,  IN  CRIMINAL  ACTIONS  NOT  CAPITAL. 

You  and  each  of  you  swear  (or  affirm)  that  you  \vill  well  and  truly  try  all 
issues  in  criminal  actions  which  shall  come  before  you  during  this  term,  and 
true  verdicts  give  according  to  the  evidence  thereon;   so  help  you,  God. 

(The  same  oath  to  talesmen,  by  using  the  word  "day"  instead  of  "term.") 

JURY,  IN  CIVIL  ACTIONS. 

You  and  each  of  you  swear  (or  affirm)  that  you  will  well  and  truly  try  all 
civil  actions  which  shall  come  before  you  during  this  term,  and  true  verdicts  give 
according  to  the  evidence;  so  help  you,  God. 

(The  same  oath  to  talesmen,  by  using  the  word  "day"  instead  of  "term.") 

JURY,  LAYING  OFF  DOWER. 

You  and  each  of  you  swear  (or  affirm)  that  you  will,  without  partiality 
and  according  to  your  best  judgment,  lay  off  and  allot  to  A.  B.,  widow  of  C.  D., 
such  dower  in  the  lands  of  said  C.  D.,  as  by  law  she  is  entitled  to;  so  help 
you,  God. 

JURY,   LAYING   OFF   ROADS   AND   ASSESSING   DAMAGES. 

1,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  lay  out  the  road,  directed 
to  be  laid  out  by  the  board  of  commissioners  of  the  county,  to  the  greatest  ease 
and  advantage  of  the  inhabitants,  and  with  as  little  prejudice  to  the  owners  of 
land  over  which  the  same  shall  be  laid  out  as  may  be;  and  will  truly  and 
impartially  assess  the  damages  which  may  be  awarded  by  me  for  injuries  done 
to  lands  by  the  laying  out  of  said  road,  without  favor,  affection,  malice  or 
hatred,  to  the  best  of  my  skill  and  knowledge;   so  help  me,  God. 

JUDGE  OF  THE  SUPREME  COURT. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  in  my  office  of  justice  of  the 
supreme  court  of  North  Carolina  I  will  administer  Justice  without  respect  to 
persons,  and  do  equal  right  to  the  poor  and  the  rich,  to  the  state  and  to  individ- 
uals; and  that  I  will  honestly,  faithfully  and  impartially  perform  all  the  duties 
of  the  said  office  according  to  the  best  of  my  abilities,  and  agreeably  to  the 
constitution  and  laws  of  the  state;  so  help  me,  God. 

JUDGE  OF  THE  SUPERIOR  COURT. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  mil  well  and  truly  serve  the 
state  of  North  Carolina  in  the  office  of  judge  of  the  superior  court  of  the  said 
state;  I  will  do  equal  law  and  right  to  all  persons,  rich  and  poor,  without 
having  regard  to  any  person.     I  will  not  wittingly  or  willingly  take,  by  myself 

695 


2360  OATHS.  Ch.   5G 

or  by  any  other  person,  any  fee,  gift,  gratuity  or  reward  whatsoever,  for  any 
matter  or  thing  by  nie  to  be  done  by  virtue  of  my  oIKce,  except  the  fees  and 
salary  by  laiv  appointed;  I  will  not  maintain,  by  myself  or  by  any  other  per- 
son, privately  or  openly,  any  plea  or  quarrel  depending  in  any  of  the  said  courts; 
I  will  not  delay  any  person  of  common  right  by  reason  of  any  letter  or  command 
from  any  person  or  persons  in  authority  to  me  directed,  or  for  any  other  cause 
whatsoever;  and  in  case  any  letter  or  orders  come  to  me  contraiy  to  law,  1  will 
proceed  to  enforce  the  law,  such  letters  or  orders  notwithstanding;  I  will  not 
appoint  any  person  to  be  clerk  of  any  of  the  said  courts  but  such  of  the  candi- 
dates as  appear  to  me  sufficiently  qualified  for  that  olliee;  and  in  all  such  appoint- 
ments I  will  nominate  without  reward,  hope  of  reward,  prejudice,  favor  or 
partiality  or  any  other  sinister  motive  whatsoever;  and  finally,  in  all  things 
belonging  to  mj'  office,  during  my  continuance  therein,  I  will  faithfully,  truly 
and  justly,  according  to  the  best  of  my  skill  and  judgment,  do  equal  and  impar- 
tial justice  to  the  public  and  to  individuals;  so  help  me,  God. 

JUSTICE  OF  THE  PEACE. 

I,  A.  B.,  do  solemnly  swear   (or  affirm)   that  as  a  justice  of  the  peace  of  the 

county  of ,  in  all  articles  in  the  commission  to  me  directed,  I  will 

do  equal  right  to  the  poor  and  the  rich,  to  the  best  of  my  judgment  and  accord- 
ing to  the  laws  of  the  state;  I  will  not,  privately  or  openly,  by  myself  or  any 
other  person,  be  of  counsel  in  any  quarrel  or  suit  depending  before  rae;  the  fines 
and  amercements  that  shall  happen  to  be  made,  and  the  forfeitures  that  shall 
be  incurred,  I  will  cause  to  be  duly  entered  without  concealment ;  I  will  not 
wittingly  or  willingly  take,  by  myself  or  by  any  other  person  for  me,  any  fee, 
gift,  gratuity  or  reward  whatsoever  for  any  matter  or  thing  by  me  to  be  done 
by  virtue  of  mj'  office,  except  such  fees  as  are  or  may  be  directed  and  limited  by 
statute;  but  well  and  truly  I  will  perform  my  oflice  of  justice  of  the  peace;  I  will 
not  delay  any  person  of  common  right,  by  reason  of  any  letter  or  order  from 
any  person  in  authority  to  me  directed,  or  for  any  other  cause  whatever;  and  if 
any  letter  or  order  come  to  me  contrary  to  law  I  will  proceed  to  enforce  the  law, 
such  letter  or  order  notwithstanding.  I  will  not  direct  or  cause  to  be  directed 
to  the  parties  any  warrant  by  me  made,  but  will  direct  all  such  warrants  to 
the  sheriffs  or  constables  of  the  county,  or  the  other  officers  or  ministers  of  the 
state,  or  other  indifferent  persons,  to  do  execution  thereof:  and  finally,  in  all 
things  belonging  to  my  office,  during  my  continuance  therein,  I  will  faithfully, 
truly  and  justly,  and  according  to  the  best  of  my  skill  and  judgment,  do  equal 
and  impartial  justice  to  the  public  and  to  individuals;  so  help  me,  God. 

REGISTER  OF  DEEDS. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  and  truly, 
according  to  the  best  of  my  skill  and  ability,  execute  the  duties  of  the  office  of 

register  of  deeds  for  the  county  of  ,  in  all  things  according  to  law; 

so  help  me,  God. 

SECRETAKY  OF  STATE. 

I,  A.  B.,  do  swear  (or  affirm)  that  I  will,  in  all  respects,  faithfully  and 
honestly  execute  the  office  of  secretary  of  state  of  the  state  of  North  Carolina, 
during  my  continuance  in  office,  according  to  law;  so  help  me,  God. 

SHERIFF. 

I,  A.  B.,  do  solemnly  swear   (or  affirm)  that  I  will  execute  the  office  of  sheriff 

of county  to  the  best  of  my  knowledge  and  ability,  agreeably  to  law ; 

and  that  I  will  not  take,  accept  or  receive,  directly  or  indirectly,  any  fee,  gift, 
bribe,  gratuity  or  reward  whatsoever,  for  returning  any  man  to  serve  as  a  juror 
or  for  making  any  false  return  on  any  process  to  me  directed;  so  help  me,  God. 


23(50  OATHS.  Ch.  56 

STANDARD   KEEPER. 

I,  A.  B.,  do  swear  (or  affirm)  that  I  will  not  stamp,  seal  or  give  any  certificate 
for  any  steelyards,  weights  or  measures,  but  such  as  shall,  as  near  as  possible, 
agree  with  the  standard  in  my  keeping;  and  that  I  will,  in  all  respects,  truly 
and  faithfully  discharge  and  e,xecute  the  power  and  trust  by  law  reposed  in  me, 
to  the  best  of  my  ability  and  capacity;  so  help  me,  God. 

STATE  TREASURER. 

I,  A.  B.,  do  swear  (or  affirm)  that,  according  to  the  best  of  my  abilities  and 
judgment,  I  will  execute  impartially  the  office  of  state  treasurer,  in  all  things 
according  to  law,  and  account  for  the  public  taxes;  and  I  will  not,  directly  or 
indirectly,  apply  the  public  money  to  any  other  use  than  by  law  directed;  so 
help  me,  God. 

STRAY  VALUERS. 

You  swear  (or  affirm)  that  you  will  well  and  truly  view  and  appraise  the 
stray,  now  to  be  valued  by  you,  without  favor  or  partiality,  according  to  your 
skill  and  ability;  so  help  you,  God. 

SURVEYOR  FOR  THE  COUNTY. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  impartially  dis- 
charge the  several  duties  of  the  office  of  surveyor  for  the  county  of , 

according  to  law;  so  help  me,  God. 

TREASURER  FOR  A  COUNTY. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that,  according  to  the  best  of  my  skill 
and  ability,  I  will  execute  impartially  the  office  of  treasurer  for  the  county  of 

,  in  all  things  according  to  law ;   that  I  will   duly  and  faithfully 

account  for  all  public  moneys  that  may  come  into  my  hands,  and  will  not, 
directly  or  indirectly,  apply  the  same,  or  any  part  thereof,  to  any  other  use 
than  by  law  directed;  so  help  me,  God. 

WITNESS  TO  DEPOSE  BEFORE  THE  GRAND  JURY. 

You  swear  (or  affirm)  that  the  evidence  you  shall  give  to  the  grand  jury,  upon 
this  bill  of  indictment  against  A.  B.,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth;  so  help  j'ou,  God. 

WITNESS  IN  A  CAPITAL  TRIAL. 

You  swear  (or  affirm)  that  the  evidence  you  shall  give  to  the  court  and  jury 
in  this  trial,  between  the  state  and  the  prisoner  at  the  bar,  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth ;   so  help  you,  God. 

WITNESS  IN  A  CRIMINAL  ACTION. 

You  swear  (or  affirm)  that  the  evidence  you  shall  give  to  the  court  and  jury 
in  this  action  between  the  state  and  A.  B.  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth ;  so  help  you,  God. 

WITNESS  IN  CIVIL  CASES. 

You  swear  (or  affirm)  that  the  evidence  you  shall  give  to  the  court  and  jury 
in  this  cause  now  on  trial,  wherein  A.  B.  is  plaintiff  and  C.  D.  defendant,  shall 
be  the  truth,  the  whole  truth,  and  nothing  but  the  truth ;  so  help  you,  God. 


2360  OATHS.  Ch.  56 

WITNESS  TO  PROVE  A  WILL. 

You  swear  (or  allirm)  that  you  saw  C.  D.  execute  (or  heard  him  acknowledge 
the  execution  of)  this  writing  "as  his  Uist  will  and  testament;  that  jou  attested 
it  in  his  presence  and  at  his  request;  and  that  at  the  time  of  its  execution  (or 
at  the  time  the  execution  was  acknowledged)  he  was,  in  your  opinion,  of  sound 
mind  and  disposing  niemorj';  so  help  you,  God. 

GENERAL  OATH. 

Any  officer  of  the  state  or  of  any  county  or  township,  the  form  of 
whose  oath  is  not  given  above,  shall  take  an  oath  in  the  following 
form : 

I,  A.  B.,  do  swear   (or  affirm)  that  I  will  well  and  truly  e.xecute  the  duties  of 

the  office  of according  to  the  best  of  my  skill  and  ability,  according  to 

law;  so  help  me,  God. 

Code,  ss.  3057,  3315;   1903,  c.  604;  1874-5,  c.  58,  s.  2 :  E.  C,  c.  7G.  s.  6. 

2361.  County  surveyors  may  administer  oaths,  when.   The 

coinity  surveyors  of  the  several  counties  are  eiii|)0\\ercd  to  administer 
oaths  to  all  such  persons  as  are  required  by  law  to  be  sworn  in  making 
partition  of  real  estate,  in  la_ying  off  widows'  dower,  in  establishing 
boundaries  and  in  surveying  vacant  lands  under  warrants. 
Code,  s.  3314;   1881,  c.  144. 

2362.  Administered  by  certain  officers.  The  chairman  of  the 

board  of  county  commissioners  and  the  chairman  of  tJie  board 
of  education  of  the  several  counties  shall  have  power  to  adminis- 
ter oaths,  in  any  matter  or  hearing  before  their  respective  boards. 

1899,  c.  89;   1889,  c.  529. 

Note.  For  power  of  sheritT  to  administer  oath  in  homestead  allotment,  see 
s.  687. 

For  power  of  register  of  deeds  to  administer  oaths,  see  s.  2088. 

2363.  Certain  oaths  validated.  All  oaths  and  affidavits  made 
prior  to  the  first  day  of  March,  one  thousand  eight  hundred  and 
ninety-nine,  administered  by  authorized  officers  to  persons  with  up- 
lifted hands  be  and  the  same  are  hereby  validated  and  made  as  legal 
and  binding  as  if  administered  to  persons  laying  hands  on  and  kiss- 
ing tlie  Holy  Evangelists  of  Almighty  God,  whether  said  oaths  and 
affidavits  were  made  by  persons  conscientiously  scrupulous  of  taking 
a  "book  oath"  or  not,  and  whether  sticli  oiiths  and  affidavits  were 
made  in  other  respects  in  strict  compliance  with  section  two  thou- 
satid  three  hundred  and  fifty-four:  Provided,  that  this  section  shall 
not  affect  the  rights  of  the  parties  in  actions  now  pending  nor  in  any 
manner  affect  prosecutions  for  ])cvjurv  claimed  to  have  brcn  lierelo- 
fore  committed. 

1899,  c.  50. 


2364  OFFICES.  Ch. 


CHAPTEE  57. 
OFFICES. 

(Sections  2304— 2.308. ) 

2364.  No  person  shall  hold  more  than  one  office.   Xo  person 

who  shall  hold  any  office  or  place  of  trust  or  profit  under  the  United 
States,  or  any  department  thereof,  or  imder  this  state,  or  under  any 
other  state  or  government,  shall  hold  or  exercise  any  other  office  or 
])lace  of  trust  or  profit  under  the  authority  of  this  state,  or  be  eligi- 
ble to  a  seat  in  either  house  of  the  general  assembly:  Provided,  that 
nothing  herein  contained  shall  extend  to  officers  in  the  militia,  jus- 
tices of  the  peace,  commissioners  of  public  charities,  or  commissioners 
for  special  purposes. 
Const.,  Art.  XIV,  s.  7. 

2365.  Penalty  for  holding  office  contrary  to  constitution.  If 

any  person  shall  |iresume  to  hold  any  office,  or  place  of  trust  or  profit, 
or  be  elected  to  a  seat  in  either  house  of  the  general  assembly,  con- 
trary to  the  seventh  section  of  the  fourteenth  article  of  the  constitution 
of  the  state,  he  shall  forfeit  and  pay  two  hundred  dollars  to  any  per- 
son who  will  sue  for  the  same. 

Code,  s.  1870;  E.  C,  c.  77.  s.  1:  1790,  c.  319:  1792,  e.  366;  1793,  c.  393; 
1796,  c.  4.50;  1811.  c.  811. 

2366.  Bargains  made  for  office  void.   All  bargains,  bonds  and 

assurances  made  or  given  for  the  purchase  or  sale  of  any  office  what- 
soever, the  sale  of  which  is  contrary  to  law,  shall  be  void. 
Code,  .s.  1871;  R.  C,  c.  77,  s.  2;  5  and  6  Edw.  VI.,  c.  16,  s.  3. 

2367.  Must  take  oath  before  acting;  penalty  for  failure.  Every 

officer  and  otlier  ]iersi)u  who  may  be  required  to  take  an  oath  of  office, 
or  an  oath  for  the  faithful  discharge  of  any  duty  imposed  on  him, 
and  also  the  oath  appointed  for  such  as  hold  any  office  of  trust 
or  profit  in  the  state,  shall  take  all  said  oaths  before  entering  on 
the  duties  of  the  office,  or  the  duties  imposed  on  such  person,  on 
])ain  of  forfeiting  five  hundred  dollars  to  the  use  of  the  poor  of 
the  county  in  or  for  which  the  office  is  to  be  u.sed,  and  of  being 
ejected  from  his  office  or  place  by  proper  proceedings  for  that  purpose. 

Code,  s.   1873;   R.  C,  c.   77,  s.  4. 


2368  OFFICES.  Cli.   57 

2368.  Persons  holding,  deemed  doing  so  lawfully;  hold  until 

their  successors  are  qualified.  Any  person  who  shall,  by  the 
proper  authority,  be  admitted  and  sworn  into  any  office,  shall  be 
held,  deemed,  and  taken,  by  force  of  such  admission,  to  be  rightfully 
in  such  office,  until,  by  judicial  sentence,  \ipon  a  proper  proceeding, 
he  shall  be  ousted  therefrom,  or  his  admission  thereto  be,  in  due 
course  of  law,  declared  void;  and  all  officers  shall  continue  in  their 
respective  offices  until  their  successors  shall  have  been  elected  or 
appointed,  and  shall  have  been  duly  qualified. 

Code,  s.   1872;   R.  C,  c.   77,  s.   3;    1844.   c.   38,  s.   2;    1848,  c.   6*,  s.   1;   Const., 
Art.  IV,  s.  25. 


Note.     For  penalty  for  acting  as  officer  witliout  giving  bond,  see  s.  278. 


CHAPTER  58. 
OYSTERS    AND    FISH. 


Sections. 

I. 

Terrapin, 

2369—2.370 

ir. 

Oyster  beds. 

2371—2382 

III. 

Catching  oysters, 

2383 — 2402 

IV. 

Oyster  industry  regulated. 

2403—2422 

V. 

Clams. 

2423 

VI. 

Fishing. 

I.     Terrapin. 

2424—2484 

2369.  Use  of  drag-nets  by  nonresidents  for  catching  terrapin 

forbidden.   If  any  person  who  is  not  a  citizen  and  who  has  not  resitled 
in  the  state  continuously  for  the  preceding  two  years  shall  use  any 
drag-net  or  other  instrument  for  catching  terrapin  he  shall  be  guilty 
of  a  misdemeanor. 
Code,  ss.  3375,  3376. 

2370.  Diamond-back  terrapin  protected.   If  any  person  shall 

take  or  catch  any  diamond-back  terrapin  between  the  fifteenth  day 
of  April  and  the  fifteenth  day  of  August  of  any  year,  or  any  diamond- 
back  terrapin  at  any  time,  of  less  size  than  five  inches  in  length 
upon  the  bottom  shell,  or  shall  interfere  with,  or  in  any  manner  de- 
stroy any  eggs  of  the  diamond-back  terra])in,  he  shall  be  gtiilty  of 
a  misdemeanor,  and  .shall  be  fined  not  less  than  five  dollars,  nor  more 
than  ten  dollars,  for  each  and  every  diamond-back  terrapin  so  taken 
or  caught,  and  a  like  sum  for  each  and  every  egg  interfei'ed  with  or 
destroyed:  Provided  this  section  shall  not  apply  to  parties  empowered 


I'.JTO  OYSTEKS  AND  FISH— 7.  Terrapin.  Ch.   58 

by  the  state  to  propagate  the  said  diamond-back  terrapin;  and  the 
possession  of  any  diamond-back  terrapin  between  the  fifteenth  days 
of  April  and  August  shall  be  prima  facie  evidence  that  the  person 
having  the  same  has  violated  this  section.  It  shall  be  the  duty  of  all 
sheriffs  and  constables  to  give  immediate  information  to  some  jus- 
tice of  the  peace  of  any  violation  of  this  section. 
Code,  s.  3377;   1899,  c.  582;   1881,  c.  115,  ss.  1,  6. 

II.     Oystee  Beds. 

2371.  Natural,  defined.  A  natural  oyster  or  clam  bed,  as  distin- 
giiished  from  an  artificial  oyster  or  clam  bed,  shall  be  one  not  planted 
by  man,  and  is  any  shoal,  reef  or  bottom  where  oysters  are  to  be 
found  growing  in  siifficient  quantities  to  be  valuable  to  the  public. 

1893,  c.  287,  s.  1. 

2372.  Planted  in  certain  territory.  Any  inhabitant  of  this  state 

may  make  a  bed  in  any  of  the  waters  of  this  state,  except  that  part 
designated  as  lying  south  of  Roanoke  and  Croatan  sounds  and  north 
of  Core  sound,  and  lay  down  or  plant  oysters  or  clams  therein,  hav- 
ing first  obtained  license  as  hereinafter  directed  from  the  superior 
court  clerk  of  the  county  wherein  such  bed  may  be,  and  he  may  stake 
oiit  the  grounds  so  as  to  include  not  exceeding  ten  acres  with  good 
and  substantial  stakes,  extending  at  least  two  feet  above  high  water- 
mark, and  placed  at  such  intervals  as  to  make  the  boundaries  of  such 
bed  or  garden  distinctly  kno^vn ;  and  every  person  who  shall  obtain 
such  license  shall  hold  the  same  and  have  exclusive  privilege  thereof 
to  him,  his  heirs  and  assigns.  But  no  person  may  have  more  than  one 
such  bed  in  the  same  county:  Provided,  nothing  herein  shall  be  con- 
strued to  affect  the  rights  of  any  owner  or  proprietor  of  lands  in 
which  there  may  be  creeks  or  inlets,  or  which  may  be  adjacent  to  any 
navigable  waters,  or  to  authorize  any  person  to  appropriate  to  his 
own  use,  or  to  stake  off  and  enclose  any  natural  oyster  or  clam  bed, 
or  in  anywise  to  infringe  the  common  right  of  the  citizens  of  the 
state  to  any  such  natural  bed  or  to  obstruct  the  free  navigation  of  the 
waters  aforesaid. 

Code,  s.  3390;  1883,  c.  332,  ss.  1,  2. 

2373.  How  license  is  obtained.  Whenever  a  license  is  desired 
according  to  the  preceding  section  the  clerk  of  the  superior  court 
of  the  county  wherein  the  proposed  oyster  or  clam  bed  may  be  may,  in 
his  discretion,  grant  a  license  to  make  such  oyster  or. clam  bed  to  any 
inhabitant  of  this  state  who  shall  apply  therefor  as  herein  provided; 
such  applicant  shall  first  stake  off  the  proposed  oyster  or  clam  bed  as 
provided  in  the  preceding  section,  and  shall  publish  a  notice  for  thirty 


2373  OYSTERS  AND  FISH—//.  Oyster  Beds.  Ch.  58 

clays  at  the  courthouse  door  of  the  county  wherein  said  bed  is  pro- 
posed, designating  the  location  thereof  as  near  as  may  be  and  the 
day  when  he  will  apply  for  the  issuing  such  license.  Upon  the  day 
iiamed  in  said  notice,  upon  which  application  for  such  license  is  to 
be  made,  any  inhabitant  of  such  county  shall  have  the  right  to  appear 
before  said  clerk  and  object  to  the  issuing  of  such  license  b}'  filing  an 
affidavit  stating  that  the  proposed  oyster  or  clam  b?d  is  a  natural  oys- 
ter or  clam  bed.  Jf  the  said  applicant  shall  refuse  to  file  an  affidavit 
denying  the  ])roposed  oyster  or  clam  bed  is  a  natural  bed,  the  said 
clerk  shall  refuse  to  grant  such  license.  If  such  applicant  shall  file 
an  affidavit  denying  that  such  proposed  bed  is  a  natural  bed,  it  shall 
be  the  duty  of  s\ich  clerk  to  transmit  said  affidavits  to  the  next  terra 
of  the  court  of  said  county,  and  at  said  term  the  issue  shall  be  tried  to 
determine  whether  the  proposed  bed  is  a  natural  bed,  and  after  such 
trial  the  said  clerk  shall  grant  or  refuse  said  license  in  accordance 
with  the  judgment  rendered  u])on  the  dctcrniination  of  such  issue. 
Code,  s.  3391;  1893,  c.  287,  s.  2. 

2374.  County  commissioners  to  cause  survey  to  be  made.  The 

board  of  county  commissioners  may  in  their  discretion  cause  to  be 
made,  not  oftener  than  once  in  twelve  months,  a  survey  and  exam- 
ination of  any  and  every  such  oyster  or  clam  bed  or  garden  in  their 
county,  the  result  of  which  examination  or  survey  shall  be  reported 
luider  oath  to  the  clerk  of  the  superior  court;  and  if  it  be  found  that 
the  holder  of  such  license  as  aforesaid  has  included  within  his  stakes 
any  natural  oyster  or  clam  bed,  or  a  space  containing  more  than  ten 
acres,  he  shall  forfeit  such  license  and  all  the  rights  and  jirivileges 
thereto  belonging;  further,  if  the  holder  of  such  license  fail  for  the 
space  of  two  years  either  to  iise  such  bed  or  to  keep  it  projicrly  des- 
ignated by  stakes,  he  shall  forfeit  such  license  and  all  the  rights 
and  privileges  therein  granted. 

Code,  s.   3392;    1883,  c.  332,  s.  4. 

2375.  Under  control  of  the  state.  The  state  shall  exercise  exclu- 
sive jurisdiction  and  control  over  all  shell-fisheries  which  are  or  may 
be  located  in  the  boundaries  of  the  state  south  of  Roanoke  and  Croa- 
tan  sounds  and  north  of  Core  soimd,  and  for  the  purposes  of  this 
chapter  the  southern  boundary  line  of  Hyde  county  shall  extend 
from  the  middle  of  Ocracoke  inlet  to  the  Royal  Shoal  lighthouse, 
thence  across  Pamlico  sound  and  Avith  the  middle  line  of  the  Pamlico 
and  Pungo  rivers  to  the  dividing  line  between  the  coimties  of  Hyde 
and  Beaufort,  and  the  northern  bouiulary  line  of  Carteret  county 
shall  extend  from  the  middle  of  Ocracoke  inlet  to  the  Royal  Shoal 
lighthouse,  thence  to  the  Brant  Tshiud  Shoal  lighthouse,  llieucc 
across  Pamlico  sound  to  a  point  midway  lietwccn  ilaw  point  anil 


1' :::>  OYSTERS  AND  FISH— 77.  Oyster  Beds.  Ch.  58 

T'lnt  of  IMarsh,  aud  thence  with  the  middle  line  of  the  Neuse  river 
\'<  the  dividing  line  between  the  counties  of  Carteret,  Craven  or 
I'nmlico,  and  that  portion  of  Pamlico  sound  and  the  Xeuse  and 
l';nulico  rivers  not  within  the  boundaries  of  Dare,  Hyde  or  Carteret 
(bounties,  and  not  a  part  of  any  other  county,  shall  be  in  the  coimty 
of  Pamlico,  and  for  the  purposes  of  this  cliapter  and  in  the  execu- 
tion of  the  requirements  thereof,  the  shore  line  as  now  defined  by 
the  United  States  coast  and  geodetic  survey  shall  be  accepted  as 
correct. 

1887,  c.  119,  ss.  1,  2. 

2376.  How  beds  entered.  Any  person  a  citizen  and  bona  fide 
resident  of  the  state  desiring  to  raise,  plant  or  cultivate  shell-fish 
upon  any  ground  in  the  county,  and  within  the  territory  described 
in  the  preceding  section,  which  has  not  been  designated  as  public 
ground  by  the  board  of  shell-fish  commissioners  and  which  is  not 
a  natural  clam  or  oyster  bed,  may  make  ajjplication  in  writing,  in 
which  shall  be  stated  as  nearly  as  may  be  the  area,  limits  and  loca- 
tion of  the  ground  desired,  to  the  entry-taker  of  the  county  in  which 
tlie  said  ai'ea  for  which  application  is  made  is  situated,  for  a  fran- 
chise for  the  purpose  of  raising  or  cultivating  shell-fish  in  said 
grounds,  and  the  said  entry-taker  having  received  said  appli- 
cation shall  proceed  as  with  all  other  entries  as  provided  in  the 
chapter  entitled  Grants,  except  that  the  warrant  to  survey  and  locate 
the  ground  or  grounds  shall  be  delivered  to  the  engineer  appointed 
by  the  secretary  of  state  and  not  to  the  county  surveyor;  and  the 
said  engineer  shall  make  such  surveys  in  accordance  with  the  pro- 
visions of  the  chapter  entitled  Grants,  except  that  it  shall  not  be  nec- 
essary to  employ  chainbearers  nor  to  administer  oaths  to  assistants, 
nor  to  make  surveys,  according  to  the  priority  of  the  application  or 
Avarrant.  No  entry  shall  be  made  to  cover  any  natural  oyster  or  clam 
bed  as  defined  in  this  chapter,  nor  of  any  land  lying  more  than  two 
miles  from  the  main  land  or  from  any  island. 

1887,  c.   119,  s.  5;    1893,  c.  272. 

2377.  How  leased.  Any  person  who  is  and  has  been  continuously 
for  two  years  a  bona  fide  resident  of  the  state  of  North  Carolina  and 
over  twenty-one  years  of  age  may  lease  or  enter  not  more  than  fifty 
acres  of  any  bottom  where  oysters  do  not  naturally  gi'ow  or  on  any 
ground  where  there  is  not  a  sufiicient  growth  of  oysters  to  justify 
at  the  time  of  leasing  the  gathering  of  the  same  for  profit.  When 
any  person  desires  to  lease  or  enter  any  such  gTound  he  shall  adver- 
tise the  fact  at  the  courthouse  and  three  other  ]3laces  for  four  weeks 
in  the  county  where  said  bottom  desired  to  be  leased  is  located,  and 
advertise  in  some  newspaper  published  in  said  county  for  four  Aveeks, 


2377  OYSTEES  AND  FISH—//.  Oyster  Beds.  Ch.  58 

and  if  there  be  none  published  in  said  county,  then  in  a  newspaper 
published  in  an  adjoining  county.  Application  for  such  land  shall 
be  made  to  the  clerk  of  the  superior  court,  who  shall  appoint  a  man 
and  the  applicant  shall  choose  another,  which  two  so  chosen  shall  ap- 
point a  third  man  and  the  three  shall  constitute  a  board  of  arbitration, 
and  the  said  board  of  arbitration  shall  inspect  the  bottom  desired. to 
be  leased,  and  if  they  find  the  same  subject  to  lease  and  so  report  to 
the  clerk,  then  it  shall  be  the  duty  of  the  said  clerk  to  issue  a  lease  as 
herein  provided,  and  for  such  service  the  clerk  shall  receive  the  fol- 
lowing fees,  to-wit:  Twenty-five  cents  for  the  application,  twenty-five 
cents  for  the  appointment  and  twenty-five  cents  for  filing  the  report 
of  arbitration,  and  copy-sheet  fees  for  recording  such  lease  and  other 
papers  necessary  to  be  recorded.  Such  bottom  shall  be  surveyed  by 
the  county  surveyor;  all  cost  and  expense  to  be  paid  by  the  lessee, 
who  shall  also  pay  a  yearly  rental  of  fifty  cents  per  acre,  which  rental 
shall  be  paid  to  the  oyster  conunissioner  and  go  to  the  benefit  of  the 
oyster  fund.  A  failure  to  pay  rental  for  two  years  shall  render  the 
lease  null  and  void.  No  bottom  which  has  been  surveyed  prior  to 
sixth  day  of  March,  one  thousand  nine  hundred  and  five,  need  lie 
re-surveyed  where  such  leases  are  plainly  marked  at  that  time.  Tin- 
county  sun'eyor  shall  furnish  the  lessee  a  map  or  plot  free  of  charjjc. 
No  lease  shall  be  issued  for  any  ground  closer  than  two  liundriMl 
yards  to  any  natural  oyster  bed. 

1905,  c.  525,  s.  2. 

2378.  Secretary  of  state  to  issue  grant;  amount  granted  lim- 
ited. The  secretary  of  state,  on  receipt  of  the  auditor's  certificate  as 
provided  in  the  chapter  on  Grants,  shall  gi'ant  to  the  applicant  a 
written  instrument  conveying  a  perpetual  franchise  for  the  pur- 
pose of  raising  and  cultivating  shell-fish  in  and  to  the  grounds  for 
which  application  is  made ;  and  the  said  written  instrument  of  con- 
veyance shall  be  authenticated  by  the  governor,  countersigned  by  the 
secretary  and  recorded  in  his  ofiice.  The  date  of  the  application  for 
the  franchise  and  a  description  of  the  groimd  for  which  such  fran- 
chise was  granted  shall  be  inserted  in  each  instnuuent,  and  no  grant 
shall  issue  except  in  accordance  with  a  certificate  from  tlie  engineer 
appointed  by  the  secretary  of  state  as  to  the  area,  limits  and  location 
of  the  grounds  in  which  the  said  franchise  is  to  be  granted,  and 
every  person  obtaining  such  grant  or  franchise  shall,  within  three 
months  from  the  receipt  of  the  same,  record  said  written  instrument 
in  the  office  of  the  register  of  deeds  for  the  coimty  wherein  the  said 
grounds  may  lie  and  shall  define  the  boundaries  of  the  said  grounds 
by  suitable  stakes,  buoys,  ranges  or  monuments;  but  no  francbiso 
shall  be  given  in  or  to  any  of  the  public  grounds  as  determined  In- 
the  commissioners  of  shell-fisheries,  or  to  any  natural  oyster  or  chim 

704 


£>:;7S  OYSTEES  AND  FISH— //.   Oyster  Beds.  Ch.  58 

bed,  and  all  franchises  granted  under  this  section  or  any  previons 
law  shall  be  and  remain  in  the  grantee,  his  heirs  and  legal  represen- 
tatives: Provided,  that  the  holder  or  holders  shall  make  in  good 
faith  within  five  years  from  the  da}'^  of  obtaining  said  franchise  an 
actual  effort  to  raise  and  cultivate  shell-fish  on  said  grounds.  No 
grant  shall  be  made  to  any  one  person  of  more  than  ten  acres  of 
any  territory,  and  no  person  shall  hold  more  than  ten  acres  in  any 
creek  unless  the  same  shall  be  acquired  through  devise,  inheritance 
or  marriage. 

1887,  c.  119,  s.  6;   1803,  c.  272. 

2379.  Price  paid  for  franchise.  Not  less  than  seventy-five  cents 
per  acre  shall  be  paid  to  the  state  treasurer  for  all  franchises  granted, 
and  in  all  other  respects  as  to  protests  of  entry  and  the  right  of  the 
secretary  of  state  to  sell  to  any  one  else  at  an  increased  price  the 
chapter  on  Grants  shall  apply. 

1887,  c.  119,  s.  7. 

2380.  Liable  to  taxation.  All  grounds  taken  up  or  held  for  the 
purpose  of  cultivating  shell-fish  shall  be  subject  to  taxation  as  real 
estate,  and  shall  be  so  considered  in  the  settlement  of  the  estates 
of  deceased  or  insolvent  persons. 

1887,  c.  119,  s.  9. 

2381.  B00l<S  of  records  of  grants  kept.  The  secretary  of  state 
shall  keep  books  of  record  in  which  shall  be  recorded  a  full  descrip- 
tion of  all  grounds  granted  under  the  provisions  of  this  chapter, 
and  shall  keep  a  map  or  maps  upon  which  shall  be  sho\vn  the  posi- 
tions and  limits  of  all  public  and  jjrivate  grounds. 

1887,  c.   119,  s.  14. 

2382.  Form  of  grants  approved  by  attorney  general.  Entry- 
takers  shall  make  return  to  the  secretary  of  state  of  all  franchises 
granted  under  this  chapter,  in  the  same  manner  as  provided  in  the 
chapter  entitled  Grants,  and  the  provisions  of  that  chapter  are 
hereby  extended  so  as.  to  cover  the  grants  or  franchises  in  ground  for 
raising  or  cultivating  shell-fish  as  authorized  by  this  chapter;  and 
all  applications,  grants,  warrants  and  assignments  of  franchises  in 
or  to  oyster  grounds  shall  be  in  manner  and  form  as  approved  by  the 
attorney  general  of  the  state. 

1887,  c.  119,  s.  12. 

III.     Catching  Oystees. 

2383.  Close  season,  exception.  If  any  person  shall  buy  or  sell 
oysters  in  the  shell  wliich  have  been  taken  from  the  public  grounds 

Kpv.  Vol.  1—41  705 


2383       OYSTEHS  Al^BTISJl— in.   Catching  Oysters.       Ch.   .-.^ 

or  natural  oy-ster  beds  of  this  state  between  the  first  day  of  April  and 
the  first  day  of  October  in  any  year,  he  shall  be  guilty  of  a  mis- 
demeanor and  be  fined  not  more  than  fifty  dollars  or  imj)risoned  net 
more  than  thirty  days:  Provided,  that  oysters  may  be  taken  with 
hand-tongs  only  during  the  month  of  April  in  any  year,  to  be  used 
for  planting  on  private  gi'ounds,  entered  and  held  under  the  laws  of 
this  state:  Provided  further,  that  oysters  may  be  taken  with  hand- 
tongs  only  for  home  consumption:  Provided  further,  that  coon 
oysters  may  be  taken  from  October  first  to  jMay  first  of  each  year  in 
the  waters  of  Onslow  and  Carteret  counties:  Provided  also,  that  it 
shall  be  lawful  to  take  or  catch  oysters  on  public  oyster  grounds  north 
of  the  line  running  from  Point  Peter  to  Duck  Island,  except  between 
a  line  running  from  the  east  end  of  Hog  Island  to  the  beach  and  from 
Ballast  Point  to  the  beach  in  Dare  county,  to  be  sold  to  residents  m- 
nonresidents,  from  April  first  to  May  fifteenth  of  each  year,  upon  tin- 
payment  by  the  purchaser  of  a  tax  of  one  and  one-half  cents  per  tub. 

1903,  c.  516.  s.  22;  1905,  c.  525,  ss.  5,  8. 

2384.  At  night  or  on  Sunday.  If  any  person  shall  catch  or  take 
any  oysters  from  any  of  the  public  grounds  or  nattiral  oyster  beds 
of  the  state  at  night  or  on  Sunday,  he  shall  be  giiilty  of  a  mi- 
demeanor  and  be  fined  not  exceeding  fifty  dollars  or  imprisoned  ni" 
exceeding  thirty  days. 

1903,  c.  51G,  s.  16. 

2385.  Illegal  dredging.  If  any  person  shall  use  any  scoops, 
scrapes  or  dredges  for  catching  oysters  except  at  the  times  and  in 
the  places  in  this  chapter  expressly  authorized,  or  shall  between  the 
fifth  day  of  April  and  the  fifteenth  day  of  Xovembcr  of  any  year 
carry  on  any  boat  or  vessel  any  scoops,  scrapes,  dredges  or  winders, 
such  as  are  usually  or  can  be  used  for  taking  oysters,  he  shall  l)e 
guilty  of  a  misdemeanor. 

1903,  c.  516.  ss.   13,  U,   15. 

2386.  Catching  oysters  without  license,  if  any  person  shall 

catch  oysters  from  the  public  grounds  of  the.  state  without  having 
first  obtained  a  license  according  to  law,  or  shall  employ  any  person 
as  agent  or  assistant,  or  shall  as  the  agent  or  assistant  of  any  per- 
son catch  oysters  from  the  public  gTounds,  without  all  of  said  persons 
having  first  obtained  a  license  according  to  law,  he  shall  be  guilty  "f 
a  misdemeanor,  and  be  fined  not  exceeding  fifty  dollars  or  impris- 
oned not  exceeding  thirty  days. 
1003,  c.  510,  s.  6. 

2387.  Using  boats  not  licensed.  If  any  person  shall  use  any  boat 
or  vessel  in  c;iti-liini;-  ovstcrs,  ■\vliicji  boat  has  not  been  licensed  accord- 


2387       OYSTEES  AND  FISH—///.   Catching  Oysters.       Ch.  58 

ing  to  law,  and  which  is  not  in  all  respects  complying  with  the  law 
regulating  the  use  of  such  vessels,  he  shall  be  guilty  of  a  misdemeanor 
and  shall  be  fined  not  more  than  fifty  dollars  nor  less  than  ten  dol- 
lars or  imprisoned  not  more  than  thirty  nor  less  than  ten  days  for 
the  first  offense,  but  for  the  second  or  subsequent  offense  he  shall  be 
guilty  of  a  misdemeanor  and  pimished  at  the  discretion  of  the  court. 

1903,  c.  516,  3.  8. 

2388.  Displaying  false  number  on  boat.  If  any  person  shall  dis- 
play any  other  number  on  their  sail  than  the  one  specified  in  their 
license  or  display  a  number  when  the  boat  or  vessel  has  not  been 
licensed,  he  shall  be  guilty  of  a  misdemeanor  and  shall  be  fined  not 
less  than  twenty-five  dollars. 

1903,  c.  516,  s.  27. 

2389.  Failure  to  stop  and  show  oyster  license.  If  any  person 

using  a  boat  or  vessel  for  the  purpose  of  catching  oysters  shall  refuse 
to  stop  and  exhibit  his  license  when  commanded  to  do  so  by  the  oys- 
ter commissioner,  assistant  commissioner  or  any  inspector,  he  shall 
be  guilty  of  a  misdemeanor  and  be  fined  not  less  than  twenty-five  dol- 
lars nor  mVDre  than  fifty  dollars. 
1903,  c.  516,  s.  26. 

2390.  False  statement  in  application  for  oysterman's  license. 

If  any  jjerson  shall  make  any  false  statement  for  the  purpose  of  pro- 
curing any  license,  which  may  be  required  by  law,  to  catch  oysters, 
or  to  engage  in  the  oyster  industry,  he  shall  be  guilty  of  perjury  and 
punished  as  provided  by  law. 
1903,  c.  516,  s.  17. 

2391.  Dredging  in  prohibited  waters.  If  any  person,  after  the 

governor  has  by  proclamation  suspended  the  right  to  use  scoops, 
scrapes  or  dredges  on  the  public  grounds  or  natural  oyster  beds  of 
the  state,  shall  during  the  time  of  such  suspension,  and  in  the  waters 
as  to  which  the  right  has  been  suspended,  use  such  instnmients  or 
implements  to  catch  oysters  from  any  of  the  public  grounds  or  natu- 
ral oyster  beds  of  the  state,  he  shall  be  guilty  of  a  misdemeanor  and 
be  fined  not  less  than  five  hundred  dollars  or  imprisoned  not  less  than 
twelve  months,  and  the  boat  or  vessel  iised  for  this  purpose  shall  be 
forfeited  and  shall  be  seized,  advertised  and  sold  by  the  oyster  com- 
missioner or  by  the  inspectors  in  the  county  wherein  said  illegal  act 
was  committed  and  the  proceeds  paid  into  the  oyster  fund.  In  any 
prosecution  for  the  violation  of  the  provisions  of  this  section  against 
the  master  or  owner  of  a  boat  or  vessel,  proof  that  said  boat  or  ves- 
sel was  equipped  with  scoop,  scrape  or  dredge  or  other  implement  or 

707 


2391       OYSTERS  AND  FISH—///.  Catching  Oysters.       C\i.  5S 

instrument  for  catching  or  taking  oysters  other  than  ordinary  oysttM- 
tongs  shall  be  i)rima  facie  evidence  of  the  defendant's  guilt. 
1903,  c.  51G.  s.  19. 

2392.  Selling  oysters  not  culled.  If  any  person  shall  sell  oi 
offer  for  sale,  tran.sjmrt  or  offer  to  transport  out  of  the  state,  or  from 
one  point  in  the  state  to  another,  or  have  in  his  possession  any 
oysters,  -which  have  not  been  properly  culled  according  to  law,  lie 
shall  be  guilty  of  a  misdemeanor  and  be  fined  not  exceeding  tifty 
dollars  or  imprisoned  not  exceeding  thirty  daj's. 

1903,  c.  510,  s.  3. 

2393.  Oysters  where  purchased  to  be  carried  out  of  the  state. 

If  any  person  shall  purchase  and  load  on  any  vessel  or  boat  any  oys- 
ters to  be  carried  out  of  the  state  in  the  shell,  except  at  the  following 
places,  to-wit :  The  south  end  of  Roanoke  Island,  Stumpy  Point  Bay, 
Parched  Corn  Bay,  Wysocking  Bay,  West  Bluff  Bay,  Great  Island 
Narrows  or  Swan  Quarter  Bay  (as  the  oyster  commissioner  may 
determine),  Portsmouth,  Ocracokc,  Bay  River,  mouth  of  Rose  Bay 
or  Harbor  Island;  or  if  any  person  shall  load  more  than  one  boat 
or  vessel  at  any  of  said  places  at  one  and  the  same  time,  or  if  any 
.person  shall  load  auy  boat  or  vessel  with  oysters  to  be  carried  out 
of  the  state  without  such  vessel  having  an  inspector  on  board  at  the 
time  the  oysters  are  delivered,  or  shall  carry  any  vessel  loaded  or 
partly  loaded  with  oysters  through  the  canals  without  a  certificate 
showing  that  the  oysters  have  been  inspected  and  the  taxes  thereon 
paid,  he  shall  be  guilty  of  a  misdemeanor  and  be  fined  not  more  than 
fifty  dollars  or  imprisoned  not  more  than  thirty  days. 
1903,  c.  510,  s.   17. 

2394.  Unloading  oysters  on  Sunday  or  at  night.  If  any  person 

shall  unload  any  oysters  from  any  boat,  vessel  or  car  at  any  factory 
or  house  for  shipping,  shucking  or  canning  oysters  on  Sunday,  or 
after  sunset  or  before  sunrise,  he  shall  be  guilty  of  a  misdemeanor 
and  be  fined  not  more  than  fifty  dollars  or  imprisoned  not  more 
than  thirty  days:  Provided,  M'henever  any  boat  or  vessel  shall  have 
partially  imloaded  or  discharged  its  cargo  before  sun.set,  tlie  remain- 
der of  said  load  or  cargo  may  lie  discliMrged  iu  the  presence  of  nu 
inspector. 

1903,  c.  510,  s.  10. 

2395.  Dealing  in  oysters  without  license,  if  any  person  shall 

engage  in  the  business  of  buying,  canning,  packing,  shipping  or 
shucking  oysters  without  having  first  obtained  a  license  as  rc(]uinil 
by  law,  he  shall  be  guilty  of  a  misdemeanor  and  be  fined  not  exceed- 
ing fifty  dollars  or  imprisoned  not  exceeding  thirty^  days. 

190.%  c.  51G.  s.  0. 

708 


i'.;;Mi       OYSTERS  AND  FISH—///.  Catching  Oysters.       Ch.   58 

2396.  Dealer  failing  to  keep  record,  if  any  person  engaged  in 

buying,  packing,  canning,  shucking  or  shipping  oysters  shall  fail 
t(i  keep  a  permanent  record  of  all  oysters  bonght  by  him  or  caught 
by  him,  or  by  persons  for  him,  when  and  from  whom  bought,  the 
1  number  of  bushels  and  the  price  paid  therefor,  or  shall  fail  upon 
I  demand  to  exhibit  such  record  as  required  by  law,  or  shall  fail  to 
verify  the  same,  he  shall  be  gTjilty  of  a  misdemeanor  and  be  fined 
not  exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty  days. 

1903,  e.   516,   s.  5. 

2397.  Evidence  of  illegal  dredging.  If  any  boat  or  vessel  shall 

be  seen  sailing  on  any  of  the  waters  of  this  state  during  the  season 
when  the  dredging  of  oysters  is  j^rohibited  by  law  in  the  same  man- 
ner in  which  they  sail  to  take  or  catch  oysters  with  scoops,  scrapes 
or  dredges,  the  said  boat  or  vessel  shall  be  pursued  by  any  officer 
authorized  to  make  arrests,  and  if  said  boat  or  vessel  apprehended 
by  said  officer  shall  be  found  to  have  on  board  any  wet  oysters  or  the 
scoops,  scrapes,  dredges  or  lines,  or  deck  wet,  indicating  the  taking 
or  catching  of  oysters  at  said  time,  and  properly  equipped  for  catch- 
ing or  taking  oysters  with  scoops,  scrapes  or  dredges,  such  facts  shall 
be  prima  facie  evidence  that  said  boat  or  vessel  has  been  used  in  viola- 
tion of  the  provisions  of  the  law  prohibiting  the  taking  or  catching 
of  oysters  with  scoops,  scrapes  or  dredges  in  prohibited  territory,  or 
at  a  season  when  the  taking  or  catching  of  oysters  with  scoops, 
scrapes  or  dredges  is  prohibited  by  law,  as  the  case  may  be. 
1903,  c.  516,  s.  28. 

2398.  Arrests  without  warrant,  when  and  how  made.  The  oys- 
ter commissioner,  assistant  oyster  commissioner  and  inspector  shall 
have  power  with  or  without  warrant  to  arrest  any  person  violating 
any  of  the  oyster  laws. 

190.3,  c.  516,  s.  2. 

2399.  Using  illegal  measures  for  oysters.  If  any  person  shall  in 

buying  or  selling  oysters  use  any  measure  other  than  that  prescribed 
by  law  for  the  measurement  of  oysters,  or  if  any  dealer  in  oysters 
shall  have  in  his  possession  any  measure  for  measuring  oysters  other 
than  that  prescribed  by  law,  he  shall  be  guilty  of  a  misdemeanor  and 
be  fined  not  exceeding  fifty  dollars  or  imprisoned  not  exceeding 
thirty  days. 

1903,  e.  516,  s,  12. 

2400.  Catching  oysters  for  lime.  If  any  person  shall  take  or 
catch  any  live  oysters  to  be  burned  for  lime  or  for  any  agi-icnltnral 
or  mechanical  purpose,  he  shall  be  guilty  of  a  misdemeanor  and  be 


2400      OYSTEES  AND  FISH— 777.  Catching  Oysters.      Ch.  58 

fined  not  exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty 
days. 

Code,  s.  3389;  1885,  c.  182. 

2401 .  Larceny  of  oysters  on  private  beds.  Any  person  who  shall 

feloniously  lake,  catch  or  capture  or  carry  away  anj-  shell-fish  from 
the  bed  or  ground  of  another  shall  be  guilty  of  larceny  and  punished 
accordingly. 

1887,  c.  119,  s.  15. 

2402.  Oysters  caught  at  night;  injury  to  private  beds.  If  any 

person  shall  wilfully  commit  any  trespass  or  injury  with  any  instru- 
ment or  implement  upon  any  ground  upon  which  shell-fish  are  being 
raised  or  cultivated,  or  shall  remove,  destroy  or  deface  any  mark  or 
monument  lawfully  set  up  for  the  jjurpose  of  marking  any  grounds, 
or  who  shall  work  on  any  oyster  ground  at  night,  he  shall  be  guilty  of 
a  misdemeanor.  But  nothing  in  the  provisions  of  this  section  shall 
be  construed  as  authorizing  interference  with  the  capture  of  migra- 
tory fishes  or  free  navigation  or  the  right  to  use  on  any  private 
grounds  any  method  or  implement  for  the  taking,  growing  or  culti- 
vation of  shell-fish. 
1887,  e.  119,  s.  11. 

IV.-    Oyster  Industry  Regulated. 

2403.  Commissioner  and  assistant,  how  appointed,  removed;- 
term;  salary;  bond;  oath  of  office.  lor  the  purpose  of  enforcing 

the  oyster  law,  the  governor  shall  appoint  an  "oyster  commissioner" 
and  an  assistant  "oyster  commissioner,"  whose  term  of  office  shall 
be  two  years,  or  until  their  successors  are  appointed  and  quali- 
fied. They  may  1)6  removed  by  tlie  governor  at  any  time  for 
cause.  The  commissioner  shall  give  bond  in  the  sum  of  two  thou- 
sand dollars;  the  assistant  commissioner  shall  give  bond  in  the 
sum  of  one  thousand  dollars.  The  bonds  shall  be  payable  to  the 
state  of  North  Carolina,  shall  be  conditioned  for  the  faithful  dis- 
charge of  their  office,  and  the  proper  accounting  for  all  moneys 
received,  shall  have  at  least  two  suflicient  sureties,  and  shall  be 
approved  by  and  filed  with  the  clerk  of  the  superior  court  of  the 
county  in  which  the  officer  resides  and  be  a  part  of  the  records  of  his 
office.  They  shall  take  and  subscribe  oaths  to  support  the  constitu- 
tion and  for  the  faitliful  performance  of  the  duties  of  tlieir  office, 
which  oaths  shall  be  filed  with  tlie  bond.  The  salary  of  the  com- 
missioner shall  be  nine  liundred  dollars  per  annum,  and  he  sliall 
be  allowed  tliree  liundred  (h)llars  fi)r  ex]icnses.  Tlie  salary  of  tlic 
assistant  commissioner  shall  be  seven  hundred  and  fifty  dollars  per 
annum.  The  salaries  shall  be  payable  monthly. 
1903,  c.  510. 

710 


2404    OYSTEES  AND  FISH— /F.  Industry  Regulated.     Ch.  58 

2404.  Inspectors,  how  appointed;  term;  salary;  bond;  oath  of 

office.  Tlie  oyster  comriiissioiier  shall  a]ipoint,  fi-om  the  counties 
within  which  they  are  to  i^erform  their  duties,  a  sufficient  number 
of  inspectors  who  shall  serve  during  the  oyster  season,  and  may 
remove  them  for  cause.  lie  shall  fix  the  compensation  of  the  inspect- 
ors at  not  exceeding  fifty  dollars  a  month  while  on  duty,  and  shall 
dcsig-nate  the  length  of  service,  the  time  when  the  inspectors  go  on 
duty,  and  when  they  go  off.  The  inspectors  shall  give  bond  in  the 
sum  of  five  hundred  dollars,  payable  to  the  state  of  North  Carolina, 
conditioned  for  the  performance  of  the  duties  of  their  office,  and  the 
faithful  accounting  for  all  moneys  received,  which  bond  shall  have 
at  least  two  sufficient  sureties,  to  be  justified  before  approved  by  and 
filed  with  the  clerk  of  the  superior  court  of  the  county  where  they 
reside,  and  shall  take,  subscribe  and  file  with  such  clerk  an  oath  of 
office.     They  shall  be  paid  only  for  the  time  they  serve. 

in03,  c.  SIG. 

2405.  Duties  of  the  oyster  commissioner.  The  oyster  commis- 
sioner shall  have  a  general  supervision  over  every  branch  of  the  oys- 
ter industry,  and  see  that  the  laws  regulating  the  same  are  rigidly 
enforced.  He  shall  furnish  the  inspectors  and  the  clerks  of  the  supe- 
rior courts  of  the  several  counties  mentioned  in  this  subchapter  such 
receipt  and  record  books,  and  other  kinds  of  stationery  as  may  be 
necessary  to  keep  a  correct  record  and  account  of-  all  the  money 

•collected  and  all  information  necessary  to  be  kept.  Such  stationery 
shall  be  furnished  by  the  commissioner  of  labor  and  printing  upon 
requisition  of  the  oyster  commissioner.  He  shall  see  that  the  law  reg- 
iilating  the  catching  and  handling  of  oysters  is  enforced;  that  no 
illegal  methods  are  used  in  catching,  selling  or  shipping;  that  the 
cull  law  is  rigidly  enforced,  and  that  only  proper  and  legal  meas- 
ures are  used  in  buying  and  selling.  He  shall  prosecute  all  viola- 
tions of  the  law,  and  whenever  it  is  necessary  he  may  employ  counsel 
for  this  purpose.  He  may  also  employ  or  charter  sail  vessels,  tugs 
and  other  boats  when  necessary  to  the  performance  of  the  duties  of 
his  office.  He  shall  in  his  official  capacity  have  power  to  administer 
oaths  and  to  send  for  and  examine  persons  and  papers.  He  shall, 
on  or  before  the  twenty-fifth  day  of  each  month,  mail  to  the  treasurer 
of  the  state  a  consolidated  statement  showing  the  amount  of  taxes 
collected  during  the  preceding  month  and  by  and  from  whom  col- 
lected. He  shall  make  a  biennial  report  to  the  governor,  setting 
forth  in  detail  an  account  of  his  official  acts,  the  condition  of  the 
oyster  industry  in  all  its  branches,  and  shall  reconunend  such  addi- 
tions to  or  modifications  of  existing  laws  relating  thereto  as  he  may 
deem  proper  and  necessary.  He  shall  have  power  and  authority  and 
it  shall  be  his  duty  to  make  and  pri'scribi'  all  such  reasonable'  ruli's 


2405     OYSTERS  AND  FISH— /F.  Induslry  Begulated.     Ch.   r.s 

and  regulations  as  may  be  necessary  and  to  carry  into  effect  ami 
operation  the  laws  relative  to  the  oyster  industry  according  to  its 
true  intent  and  purposes. 
1903,  c.  516,  ss.  3,  18. 

2406.  Duties  of  the  assistant  commissioner.  The  assistant  oys- 
ter coiiimissioner  shall  be  charged  with  the  special  sujicrvision,  under 
the  commissioner,  of  all  matters  relating  to  oyster  industry  in  the 
different  counties.  He  is  particularly  charged  with  the  rigid  enforce- 
ment of  the  cull  feature  of  the  law,  the  provisions  against  the  use 
of  illegal  measures  in  buying  or  selling  and  the  unlawful  use  id 
scoops,  scrapes  and  dredges  in  the  bays,  creeks,  straits,  sounds,  rivers 
and  their  tributaries  and  elsewhere  where  the  same  is  prohibited. 

1903,  c.  518,  s.  3. 

2407.  Duties  of  inspectors.  The  inspectors  shall,  under  the  com- 
missioner and  assistant  commissioner,  be  charged  with  all  matters 
relating  to  the  oyster  industry  in  their  respective  counties ;  they 
shall  inspect  all  oysters  offered  for  sale  in  their  county,  see  that  they 
are  properly  culled,  see  that  none  of  the  provisions  of  the  law  regu- 
lating the  oyster  industry  are  violated,  collect  all  taxes  from  dealers 
on  oysters  purchased  or  caught;  keep  a  correct  record  of  all  taxes 
collected  by  them  and  from  whom  and  for  what  purpose  collected ; 
and  on  or  before  the  fifth  day  of  each  month  mail  to  the  oyster  com- 
missioner a  report,  on  such  form  as  he  may  prescribe,  showing  all  • 
taxes  collected  by  them  and  from  whom  received,  and  at  the  same 
time  pay  over  to  the  commissioner  the  amount  of  such  taxes. 

1903,  e.  516,  s.  3. 

2408.  Who  may  be  licensed  to  catch  oysters.  No  person  shall 

be  licensed  to  catch  oysters  from  the  public  gTOunds  of  the  state  who 
is  owner,  lessee,  master,  captain,  mate  or  foreman,  or  who  owns  an 
interest  in  or  who  is  an  agent  for  any  boat  that  is  used  or  that  may 
be  used  in  dredging  oysters  from  the  public  gi-ounds  of  the  state,  who 
is  not  a  bona  fide  resident  of  this  state  and  who  has  not  continuously 
resided  therein  for  two  years  next  preceding  the  date  of  his  applica- 
tion for  license,  and  no  nonresident  shall  be  employed  as  a  laborer  on 
any  boat  licensed  to  dredge  oysters  imder  this  subchapter  who  has  an 
interest  in  or  who  receives  any  profit  from  the  oysters  caught  by  any 
boat  permitted  to  dredge  oysters  on  the  public  gi-ounds  of  the  state. 
Any  person,  firm  or  corporation  em])loying  any  nonresident  laborer 
forbidden  by  this  section,  upon  conviction  shall  be  fined  not  less  than 
fifty  dollars  nor  more  than  five  hundred  dollars. 
1903,  c.  516,  s.  C;  1905,  c.  525,  s.  3. 


$ 


2409     OYSTERS  AND  FISH— 7T'.  Industry  Regulated.     Cli.   58 

2409.  How  license  obtained  to  catch  oysters;  who  may  issue; 

form  of.  Any  person  desiring  to  catch  oysters  from  the  jiublic 
grounds  and  natural  oyster  beds  shall  make  and  subscribe  to  the 
following  oath,  before  some  officer  qualified  to  administer  oaths : 

I, (state  if  owner,  lessee,  master,  captain,  niate,  foreman  or  agent  of 

any  boat  used  or  that  may  be  used  in  dredging  oysters  from  the  public  grounds 
of  the  state),  being  an  applicant  for  oyster  license,  do  solemnly  swear  that 
I  am  a  citizen  of  North  Carolina  and  have  been  a  resident  of  the  state-  for  the 

two  years  next  preceding  this  day;  that  my  place  of  residence  is  now  in 

county;  that  I  will  not,  if  granted  license,  employ  any  nonresident  or  unlicensed 
person  as  an  assistant  or  serve  as  an  assistant  to  any  nonresident  who  is  owner, 
lessee,  master,  captain,  mate  or  foreman,  or  who  has  any  interest  in,  or  in  the 
profits  derived  from,  any  boat  that  is  used  or  that  may  be  used  in  dredging  oys- 
ters from  the  public  grounds  of  the  state,  or  unlicensed  person,  nor  will  I  transfer, 
assign  or  otherwise  dispose  of  my  license  to  any  person,  firm  or  corporation;  that 
I  will  not  knowingly  or  wilfully  violate  or  evade  any  of  the  laws  or  regulations 
of  the  state  relating  to  oyster  industry;  so  help  me,  God. 

He  shall  then  present  to  and  file  said  oath  with  the  oyster  commis- 
sioner, assistant  oyster  commissioner  or  inspector,  who,  if  satisfied 
with  the  truth  of  the  statement  made  in  the  oath  of  application,  shall 
issue  to  him  an  oysterman's  license  in  the  following  form : 

State  of  North  Carolina,   County. 

,  a  resident  of county,  having  this  day  made  applica- 
tion to  me  for  an  oysterman's  license,  and  having  filed  with  me  the  oath  pre- 
scribed by  law,  I  do  hereby  grant  to  him  license  to  catch  oysters  from  the  public 

grounds  of  this  state  from  the  fifteenth  day  of  October,   ,  until  the  first 

day   of   next  April.     Witness  my   hand   and   olfieial   seal,   this   the day   of 

..'. 19 

Oj'ster  commissionei".   assistant   oyster   commissioner   or   inspector    (as   the   case 
may  be ) . 

The  said  oath  and  a  record  of  the  license  shall  be  ke])t  by  the  oys- 
ter commissioner,  assistant  commissioner  or  inspector,  and  for  issu- 
ing and  recording  the  same  he  shall  receive  from  the  applicant  a  fee 
of  twenty-fi\'e  cents,  which,  together  with  all  other  license  fees  col- 
lected under  this  chapter,  shall  be  paid  over  to  the  state  treasurer  and 
constitute  part  of  the  oyster  fund.  ISTo  fee  shall  be  charged  by  the 
clerk  for  administering  the  oath. 

1903,  c.  516,  s.  7;  1905,  c.  525,  ss.  4,  6. 

Note.     For  making  false  aflSdavit,  see  Crimes. 

2410.  License  for  boat  used  in  catching  oysters.  The  oyster 

commissioner,  assistant  oyster  connnissitmer  or  inspector  may  grant 
license  for  a  boat  to  be  used  in  catching  oysters,  upon  application 
made,  according  to  law,  and  the  payment  of  a  license  tax  as  follows : 
On  any  boat  or  vessel  without  cabin  or  deck,  and  vmder  customhouse 
tonnage,  using  scoops,  scrapes  or  dredges,  measuring,  over  all,  twenty- 
five  feet  and  under  tliirty,  a  tax  of  three  dollars ;  fifteen  feet  and  under 
twenty  feet  a  tax  of  two  dollars ;  on  any  boat  or  vessel  with  cabin  or 
deck  and  under  customhouse  tonnage,  using  scrapes  or  dredges,  meas- 

7i;'. 


2410     OYSTERS  A^^D  FISH— /F.  Industry  Begulaied.     Cli.   58 

uring  over  all,  thirty  feet  or  under,  a  tax  of  five  dollars ;  over  thirty 
feet  a  tax  of  six  dollars ;  on  any  boat  or  vessel,  using  scoops,  scrapes 
or  dredges,  required  to  be  registered  or  enrolled  in  the  customhouse, 
a  tax  of  one  dollar  and  fifty  cents  a  ton  on  gross  tonnage.  No  vessel 
propelled  by  steam,  gas  or  electricity,  and  no  boat  or  vessel  not  the 
property  absolutely  of  a  citizen  or  citizens  of  this  state  on  the 
first  day  of  January,  one  thousand  nine  hundred  and  three,  or 
imless  built  or  owmed  in  this  state  subsequent  thereto  and  actually 
owned  by  a  bona  fide  resident  of  this  state  under  this  chapter,  shall 
receive  license  or  be  permitted  in  any  manner  to  engage  in  the  catch- 
ing of  oysters  anj^vhere  in  the  waters  of  this  state.  All  boats  or 
vessels  so  licensed  to  scoop,  scrape  or  dredge  oysters  shall  display 
on  the  port  side  of  the  jib,  above  the  reef  and  bonnet  and  on  the 
opposite  side  of  mainsail,  above  all  reef  points,  in  black  letters,  not 
less  than  twenty  inches  long,  the  initial  letter  of  the  county  granting 
the  license  and  the  number  of  said  license,  the  number  to  be 
painted  on  canvas  and  furnished  by  the  oyster  commissioner,  assist- 
ant oyster  commissioner  or  inspector  issuing  the  license,  for  which 
he  shall  receive  the  sum  of  fifty  cents.  Any  boat  or  vessel  used  in 
catcliing  oysters  without  having  complied  with  the  provisions  of  this 
section  may  be  seized,  forfeited,  advertised  for  twenty  days  at  three 
public  places  in  the  county  where  seized,  and  sold  at  some  public  place 
designated  in  the  advertisement,  and  the  proceeds  paid  into  the  oyster 
fund. 

1903,  0.  516,  s.  8. 

2411.  License  to  oyster  dealers.  The  oyster  commissioner,  as- 
sistant oj'ster  commissioner  or  iusijector  shall,  upon  application  and 
the  payment  of  a  fee  of  fifty  cents,  grant  to  the  applicant  a  dealer's 
license,  authorizing  the  applicant  to  engage  in  the  business  of  buying, 
purchasing,  canning,  packing,  shucking  or  shipping  oysters.  Such 
license  shall  not  be  issued  jirior  to  the  fifteenth  day  of  October  of  any 
year  and  shall  expire  on  the  first  day  of  April  following.  The  assist- 
ant oyster  commissioner  or  inspector  granting  the  license  shall  at  once 
mail  a  duplicate  to  the  oyster  commissioner. 

1903.  c.  51G.  s.  9  ;  1905,  p.  .525,  s.  6. 

2412.  Licenses  reported  monthly.  The  oyster  commissioner,  as- 
sistant oyster  commissioner  or  ins]iector  who  are  authorized  to  issue 
license  or  to  collect  a  license  tax,  shall,  on  or  before  the  fifteenth 
day  of  each  month,  mail  to  the  oyster  commissioner  a  statement, 
showing  all  licenses  issued  during  the  preceding  month,  to  whom 
issued  and  for  what  purpose,  and  the  amount  of  tax  collected  by  them 
from  all  sources  under  the  oyster  laws,  and  shall  at  the  same  time  re- 
init  said  amount  direct  to  the  state  treasurer.  They  shall  at  the  same 
time  mail  to  encli  inspector  asking  for  tlie  same  a  list  of  all  persons 


2412     OYSTERS  AND  FISH— 77.  Industry  BeguJated.     Cli.  58 

to  Avhom  license  has  been  issued  and  of  all  boats  or  vessels  licensed, 
and  for  what  purpose. 

1903,  c.  516,  s.  4;  1905,  c.  525,  s.  6. 

2413.  Dredging,  when  allowed;  prohibited  territory.  Any  bona 

fide  resident  of  the  state  duly  liceuscd  according  to  law  and  using 
a  licensed  boat  or  vessel  may  use  scoops,  scrapes  or  dredges  in  catch- 
ing or  taking  oysters  from  the  fifteenth  day  of  November  in  each 
year  to  the  first  day  of  April  following,  from  the  public  gTounds 
and  natural  oyster  beds  in  the  broad  open  waters  of  Pamlico  sound, 
Pamlico  river,  Neuse  river  and  Long  Shoal  river,  except  in  those 
portions  of  said  sound  and  rivers  in  which  the  use  of  such  instru- 
ments and  implements  is  prohibited  as  herein  provided.  No  person 
shall  use  any  implement  or  instrimient  except  hand-tongs  in  catching 
oysters  in  any  bay,  river,  creek,  strait,  or  any  tributary  of  such 
which  border  upon  or  empty  into  Pamlico  sound,  Pamlico  river,  or 
Long  Shoal  river,  except  as  hereinafter  provided ;  and  any  point 
inside  of  a  line  drawn  from  the  farthest  or  extreme  outward  point  of 
land  or  marsh  on  the  one  side  to  the  farthest  or  extreme  outward 
point  of  land  or  marsh  on  the  opposite  side  of  any  creek,  strait  or  bay, 
shall  be  construed  to  be  within  the  said  creek,  strait  or  bay  for 
the  purposes  of  this  section.  Nor  shall  any  person  use  any  imple- 
ment or  instrument  except  hand-tongs  in  the  waters  of  Pamlico  sound 
from  what  is  known  as  the  Keef  or  Reefs  in  the  eastern  portion  of 
said  sound  to  the  line  of  banks  bordering  its  eastern  shores;  nor 
along  the  shores  of  Pamlico  county  inside  of  a  line  beginning  at  Maw 
Point  and  running  to  the  west  end  of  Brant  island,  thence  to  Pamlico 
Point ;  nor  in  the  waters  of  Pamlico  sound  north  of  a  line  running 
from  Long  Shoal  light  to  Gull  Shoal  life-saving  station,  from  the 
first  day  of  February  of  each  year  to  the  fifteenth  day  of  November, 
nor  in  any  of  the  waters  of  Carteret  comity.  And  for  the  purpose 
of  this  section,  the  northern  boundary  of  said  county  sliall  be  a  line 
extending  from  Swan  Point  to  Harbor  Island  light,  thence  a  line 
to  Southwest  Straddle  light,  thence  a  line  to  Northwest  Point  light, 
thence  a  line  to  the  middle  of  Ocracoke  Inlet;  nor  in  the  waters  of 
Neuse  river  above  a  line  in  said  river  running  from  Carbacon  buoy 
to  the  Avestern  point  of  land  at  Pierce's  creek. 

mo.'?,  c.  516,  SR.  l.-i,  14,  15;   in05,  0.  50V,  s.  2. 

2414.  Governor  may  suspend  right  to  dredge.  The  governor, 

upon  the  request  of  the  oyster  conniiissioncr,  may,  wlienever  in  his 
judgment  it  is  necessary,  by  proclamation,  suspend  entirely  the  use 
of  all  scoops,  scrapes  or  dredges  in  any  of  the  -waters  of  the  state, 
either  for  a  definite  ]ieriod  of  time  or  until  the  sitting  of  the  next 
general  assembly. 
ino3,  c.  516,  s.  19. 

715 


2415     OYSTERS  A'SB  FISR— IV.  Indiistr;/ L'egulated.     Cli.  58 

2415.  Oysters  culled  on  grounds.  All  oysters  taken  from  the  pub- 
lic groimds  of  this  state,  with  whatsoever  instrument  or  implement, 
shall  be  culled  and  all  oysters  whose  shells  measure  less  than  two  and 
one-half  inches  from  hinge  to  mouth,  except  such  as  are  attached  to  a 
large  oyster  and  can  not  be  removed  without  destroying  the  small  oys- 
ter, and  all  shells  taken  with  the  said  oysters  shall  be  returned  to  the 
public  ground  when  and  where  taken,  and  no  oysters  shall  be  allowed 
by  the  inspectors  to  be  marketed  which  shall  consist  of  more  than 
ten  per  cent,  of  such  small  oysters  and  shells,  except  '"coon"  oysters 
and  oysters  largely  covered  Avith  mussels:  Provided,  these  musseled 
oysters  must  not  contain  more  than  live  per  cent,  of  shells  or  small 
oysters  under  regulation  size. 

1903,  c.  510,  s.  11;  1905,  c.  525. 

2416.  Oysters  not  culled  seized  and  put  on  public  grounds. 

Whenever  oysters  are  offered  for  sale  or  loaded  upon  any  vessel,  car 

or  train,  without  having  been  properly  culled  according  to  law,  the 

commissioner,   assistant  commissioner,   or   inspector   shall   seize   the 

boat,  vessel,  car  or  train  containing  the  same  and  shall  cause  the 

said  oysters  to  be  scattered  iipon  the  public  grounds,  and  the  costs 

and  expenses  of  said  seizure  and  transportation  shall  be  a  prior  lien 

to  all  liens  on  said  boat,  vessel,  car  or  train,   and  if  not  paid  on 

demand  the  officers  nuiking  the  seizure  shall,  after  advertisement  for 

twenty  days,  sell  the  same  and  make  title  to  the  purchaser,  and  after 

paying  expenses  as  aforesaid  pay  the  balance,  if  any.  into  the  oyster 

fund.    • 

1903,  c.  510,  s.  3. 

Note.     For  selling  unculled  oysters,  see  s.  2392. 

2417.  Dimensions  of  oyster  measure.  All  oysters  measured  in 

the  shell  shall  be  measured  in  a  circular  tub  with  straight  sides  and 
straight,  solid  bottom,  with  holes  in  the  bottom  not  more  than  one- 
half  inch  in  diameter.  The  said  measure  shall  have  the  following 
dimensions:  A  bushel  tub  shall  measure  eighteen  inches  from  inside 
to  inside  across  the  to]i,  sixteen  inches  from  inside  to  inside  chimb  to 
the  bottom  and  twenty-one  inches  diagonal  from  inside  chimb  to 
top.  All  measures  used  for  buying  or  selling  oysters  shall  have  a 
brand,  to  be  adopted  by  the  oyster  commissioner,  stam]ied  therein 
by  said  commissioner,  assistant  commissioner,  or  his  lawful  inspect- 
ors. All  measures  found  in  the  po.ssession  of  any  dealer  not  meet- 
ing the  requirements  of  this  section  shall  be  destroyed  by  said  oys- 
ter commissioner,  assistant  commissioner  or  inspector. 

1903,  c.   510.   s.    12. 

2418.  Dealers  to  keep  records.  AH  persons  engaged  in  buying, 
packing,  canning,  shucking  or  shi])i)ing  oysters  sliall  keep  a  penna- 


i' 


2418    OYSTERS  AND  FISIT— /T'.  LuJvsIr,/  Ber/ulalcd.    Cli.   oS 

neut  record  of  all  oysters  either  bought  or  caught  by  them,  or  by 
persons  for  them,  when  and  from  whom  bought,  the  number  of 
bushels  and  the  jDrice  paid  therefor.  All  these  records  shall  at  all 
times  be  open  to  the  examination  and  inspection  of  the  oyster  com- 
missioner, assistant  oyster  commissioner  and  inspector,  and  upon 
request  shall  bo  verified  by  the  parties  making  them. 
1903,  c.  516,  s.  5. 

2419.  Purchase  tax.  All  dealers  in  oysters  and  all  persons  who 
pui'chase  oysters  for  canning,  packing,  shucking  or  shipping  shall 
pay  a  tax  of  one  and  one-half  cents  on  every  bushel  of  oysters  pur- 
chased by  them,  or  caught  by  them,  or  any  one  for  them:  Provided, 
that  coon  oysters  shall  be  taxed  one-half  a  cent  a  bushel  only ;  and 
no  oysters  shall  be  twice  taxed.  This  tax  shall  be  paid  to  and  col- 
lected by  the  inspectors,  and  when  paid  a  receipt  shall  be  given 
therefor.  Upon  failure  or  refusal  by  any  person,  firm  or  corporation 
to  pay  said  tax,  his  license  as  a  dealer  shall  at  once  become  null  and 
void,  and  no  further  license  shall  be  granted  him  during  the  current 
year,  and  it  shall  be  the  duty  of  the  commissioner,  assistant  commis- 
sioner or  inspector  to  institute  suit  for  the  collection  of  said  tax. 
Such  suit  shall  be  in  the  name  of  the  state  of  North  Carolina  on 
relation  of  the  commissioner  or  of  the  inspector  at  whose  instance 
such  suit  is  instituted,  and  the  recovery  shall  be  for  the  benefit  and 
to  the  use  of  the  general  oyster  fund. 

1903,  c.  516,  B.  10;  1905,  c.  507. 

2420.  Vessels  with  oysters,  when  allowed  to  go  through  canals. 

'No  boat  or  vessel  loaded  with  oysters  shall  be  permitted  by  the 
inspectors  of  South  Mills  and  Coinjock  to  pass  through  the  canals, 
which  do  not  have  a  certificate  showing  that  the  cargo  has  been 
inspected  and  the  tax  paid  thereon. 
1903,  c.  516,  s.  17. 

2421.  Shells  scattered  on  oyster  beds.  The  oyster  commis- 
sioner is  hereby  empowered  to  expend  one-half  of  the  balance  to 
the  credit  of  the  oyster  fund  on  the  fifteenth  day  of  April  in  each 
year  for  the  purpose  of  buying  oyster  shells  and  scattering  the  same 
on  the  natural  oyster  gi'Oimds  of  the  state  during  the  months  of 
April  and  May. 

1903,  c.  516,  s.  20. 

2422.  Oyster  funds  kept  separate,  how  paid  out.  The  treasurer 

of  the  state  shall  keep  all  fimds  derived  from  the  oyster  industry 
separate  and  apart  from  other  funds  in  the  treasury  and  shall  pay 
the  same  out  only  upon  the  warrant  of  the  auditor,  and  the  auditor 

717 


2422     OYSTERS  AXD  FISH— /!'.  InJustry  Regulated.     Ch.  58 

shall  issue  no  warrant  on  said  fund  in  payment  of  any  claim  unless 
the  same  shall  liave  been  first  approved  by  the  oyster  commissioner. 
1903,  c.  516,  s.  20. 

V.     Claris. 

2423.  Clams.  If  any  person  between  the  first  day  of  April  and 
the  first  day  of  Xoveniber  of  any  year  shall  take  any  claims  from  the 
waters  of  Brunswick,  New  Hanover  or  Pender  counties  for  the  pur- 
pose of  shipping,  selling,  marketing,  or  for  bedding  or  pounding 
the  same  in  any  artificial  bed,  or  if  any  person  shall  take  or  catch 
any  oysters  in  the  waters  of  Carteret  coimty  by  dredging  or  scoops, 
or  in  any  manner  other  than  with  the  ordinary  clam  rake,  or  tongs, 
or  if  any  nonresident  shall  take  or  catch  any  clams,  li(>  shall  be  guilty 
of  a  misdemeanor. 

1901,  e.  113;   1897,  e.  333;   1899,  c.  579;   1903,  cc.  131,  414,  658,  732. 

VI.     FisiiixG. 

2424.  Croatan  marshes.  If  any  person,  for  the  jjurpose  of  tak- 
ing fish,  shall  between  the  first  day  of  February  and  the  first  day  of 
May,  of  the  same  j'ear,  use  or  cause  to  be  used,  at  or  within  half  a 
mile  of  the  marshes  separating  the  waters  of  Croatan  and  Pamlico 
sounds,  any  weir,  hedge,  net  or  seine,  he  shall  be  guilty  of  a  misde- 
meanor. 

Code,  s.  3378;  R.  C.  c.  81,  s.  4;  1844,  c.  40,  s.  3. 

2425.  Masonboro  and  Myrtle  Grove  sound.  If  any  person  shall 

use  any  P3'ke  nets  or  set  down  seines,  or  place  any  fish  trap  for  the 
purpose  of  catching  fish  in  the  waters  of  Masonboro  and  ilyrtle 
Grove  sounds  in  New  Hanover  county,  he  shall  be  guilty  of  a  misde- 
meanor, and  fined  not  more  than  fifty  dollars,  or  imprisoned  not  more 
than  twenty  days. 

Code,  s.  3421;  1883,  c.  288,  ss.  1,  2. 

2426.  Catching  oysters  in  Myrtle  Grove  sound.  If  any  person 

shall  take  or  catch  any  oysters  from  ^lyrtle  Grove  sound,  from  Per- 
rines  or  "Whitaker's  creek  to  the  head  waters  of  said  sound  in  New 
Hanover  county,  from  the  first  day  of  May  until  tlie  first  day  of  Sep- 
tember, e.xcept  for  his  own  consumption,  he  shall  be  guilty  of  a  mis- 
demeanor, and  fined  not  more  than  fifty  dollars  or  imprisoned  not 
more  than  twenty  days. 

Code,  s.  3423;  1883,  c.  358,  ss.  1,  2. 

2427.  Lay  days  for  Pamlico  river.  If  any  iierson,  from  the  fif- 

teeutli  day  of  February  to  {\w  teutli  day  of  May  of  every  year,  from 


'2i27  OYSTERS  AND  FISH— TT.  Fishing.  Ch.   58 

twelve  o'clock  meridian  of  Saturday  until  sunrise  Monday  morn- 
ing of  each  week,  shall  fish  any  seine,  set  net,  drift-net,  or  any  other 
net  of  any  name  or  kind  whatever,  in  the  waters  of  Pamlico  or  Tar 
rivers  and  tributaries,  except  bow  or  skim  nets, .he  shall  be  guilty  of 
a  misdemeanor. 

Code,  s.  3416;  1883,  c.  137,  s.  3. 

2428.  Fishing  dutch  nets  in  Pamlico  and  Tar  rivers.  If  any 

person  shall  set  down  or  fish  any  dutch,  jwd,  pyke  or  pound  net  or 
net  of  like  kind  in  the  waters  of  Pamlico  or  Tar  rivers  or  their  tribu- 
taries except  iu  the  manner,  and  in  the  part,  and  during  the  time, 
which  such  nets  are  by  law  allowed  to  be  fished,  he  shall  be  guilty  of  a 
misdemeanor,  and  shall  be  fined  not  less  than  fifty  dollars  nor  more 
than  one  hundred  dollars,  and  shall  be  imprisoned  in  the  county 
jail  not  less  than  thirty  and  not  more  than  sixty  days. 
Code,  s.  3417;   1903,  c.  52. 

2429.  Dutch  nets  in  Pamlico  river.  It  shall  be  lawful  to  fish 

with  dutch,  pod,  pj'ke  or  other  pound  nets,  or  nets  of  like  kind,  in 
the  waters  of  Pamlico  river  below  a  line  beginning  on  the  southern 
shore  of  Pamlico  river  at  Maule's  Point,  and  running  due  north  to 
a  point  on  the  northern  shore  of  said  river :  Provided,  that  no  dutch, 
pod,  pyke  or  pound  net,  or  other  net  of  like  kind,  shall  extend  out 
in  said  river  more  than  one-eighth  of  the  distance  across  said  river 
fi-om  the  shore,  and  that  none  of  said  dutch,  pod,  pyke  or  pound 
nets  shall  be  set,  placed  down  or  fished  nearer  to  each  other  than 
five  hundred  yards,  measuring  up  and  down  the  river ;  nor  shall 
they  be  placed,  set  down  or  fished  within  five  hundred  yards  of  any 
seine  beach  in  actual  use  for  hauling  a  seine,  nor  within  one  mile 
of  the  mouth  of  Bath  creek :  Provided,  no  nets  of  the  kind  enumer- 
ated in  this  section,  or  other  nets  of  like  kiud,  shall  be  placed  down, 
set  or  fished  in  said  rivers  between  the  tenth  day  of  May  and  the  first 
day  of  July  in  any  year.  Whenever  any  person  shall  complain  to 
the  oyster  commissioner  or  any  inspector  that  dutch,  pod  or  pyke 
nets,  or  other  nets  of  like  kind,  have  been  placed  down  or  set  in  any 
of  the  waters  of  Pamlico  river,  or  in  any  of  its  tributaries,  contrary 
to  and  in  violation  of  this  section,  said  oyster  commissioner  or 
inspector,  or  person  performing  the  duties  of  such,  shall  at  once  visit 
said  river,  make  a  complete  and  full  examination  of  all  dutch,  pod 
or  pyke  nets,  or  other  nets  of  like  kinds  in  said  river,  and  ascertain 
whether  they  are  placed  doAvn,  set  or  fished  in  violation  of  the  pro- 
visions of  this  section,  and  he  shall  report  to  the  solicitor  of  the  dis- 
trict in  which  the  offense  is  committed. 
Code,  s.  ,3417;    1903,  c.  52. 


2430  OYSTERS  AND  FISH— T/.   Fishing.  C'li.   58 

2430.  Dutch  nets  in  Currituck  sound.  If  any  firm,  compauy  or 

corporation  shall*  operate  or  cause  to  bo  operated  in  the  waters  of 
Currituck  county,  or  to  be  interested  in  (in  any  manner  whatsoever) 
more  than  six-pound  or  dutch  nets,  or  use  more  than  one  hundred 
yards  of  hedging  to  a  net,  or  set  a  stand  of  such  nets  exceeding  eight 
hundred  yards  in  length  from  land  to  the  extreme  outward  end ;  or  if 
any  person  shall  set  any  jjound  or  dutch  nets  to  the  east  of  the  center 
of  Currituck  sound,  except  that  part  from  the  west  point  of  ilackey's 
island  north  of  the  Virginia  line ;  or  if  any  person  shall  leave  any 
landing  or  anchorage  before  sunrise  for  the  purpose  of  fishing  in  Cur- 
rituck sound  or  tributaries,  or  shall  continue  to  fish  after  dark,  he 
shall  be  guilty  of  a  misdemeanor  and  be  fined  not  less  than  twenty- 
five,  nor  more  than  fifty  dollars.  This  section  shall  not  prohibit  fish- 
ing after  dark  in  that  part  of  said  sound  west  of  a  line  beginning  at 
the  north  point  of  Bell's  island,  thence  north  not  more  than  one  thou- 
sand yards  from  the  main  land  to  the  mouth  or  entrance  of  Tull's 
creek,  nor  night  fishing  between  the  thirty-first  day  of  ^larch  and  the 
twentieth  day  of  October  five  hundred  yards  from  the  shore  from 
Martin's  Point  to  Kitty's  Hawk  bay. 
1905,  c.  273,  ss.  3-7. 

2431.  Shipping  or  selling  fish,  Currituck  county.  If  any  person 

shall  catch  or  capture  any  fish  with  nets  or  other  apjilianccs  in  the 
waters  of  Currituck  county  between  the  thirty-first  day  of  March 
and  the  twentieth  day  of  October  of  each  year,  or  shall  sell  or  ship 
out  of  the  county  or  state  any  fresh  fish  between  said  dates;  or  if 
any  person  shall  be  found  with  more  than  twenty-five  poiinds  of  fresh- 
water fish  in  his  possession  between  the  thirty-first  day  of  March 
and  the  twentieth  day  of  October  of  each  year,  herrings,  mullets,  shad 
and  eels  excepted ;  or  if  any  jierson  shall  in  said  county  catch  eels  for 
market  between  the  thirtieth  day  of  April  and  the  twentieth  day  of 
October  following  in  each  year,  he  shall  be  guilty  of  a  misdemeanor 
and  be  fined  not  more  than  fifty  dollars  and  not  less  than  twenty-five 
dollars.  Any  citizen  may  catch,  not  to  exceed  twenty-five  pounds,  at 
any  time  for  home  consiimption,  and  sell  or  give  not  more  than  ten 
pounds  to  any  one  person  in  one  day. 
1905,  e.  273,  a.  1. 

2432.  Game  warden's  right  to  search  vessels.  If  any  constable, 

game  warden  or  justice  of  the  peace  of  Currituck  county  shall  be 
informed,  or  have  cause  to  suspect,  that  either  of  the  two  preceding 
sections  are  being  violated,  he  is  hereby  authorized  and  empowered 
to  examine  the  contents  of  any  fishing  boat,  or  packages  in  transit, 
and  any  person  or  common  carrier  refusing  to  exhibit  the  contents  of 
any  fishing  boat  or  package  to  such  officer  shall  be  guilty  of  a  tnisde- 


2432  OYSTERS  AND  FISH— 77.  Fishing.  Cli.   58 

meanor,  and  shall  be  fined  not  less  than   twenty-five  and  not  more 
than  fifty  dollars. 
1905,  e.  273,  ss.  2,  7.  . 

2433.  Direction  of  nets  in  Pamlico  sound.   Every  net  (unless 

the  same  lie  a  dra.n-nct  and  hauled  to  the  shore),  which  may  be  used 
for  catching  shad  in  that  portion  of  the  waters  of  Pamlico  sound, 
lying  between  a  line  drawn  eastwardly  from  Stumpy  Point  and 
Mount  Pleasant  in  Hyde  county  to  a  point  ten  miles  south  of  Hat- 
teras  inlet  in  said  sound,  shall  be  set  and  fixed  in  said  waters,  in  a 
direction  from  north  to  south,  and  shall  not  be  used  in  any  other 
maimer ;  and  any  person  offending  against  this  section  shall,  for 
every  offense,  forfeit  five  dollars. 

Code,  s.  3381;   1889,  c.  261;  K.  C,  c.  81,  s.  7;   1844,  c.  40,  s.  6. 

2434.  In  Carteret  county.  If  any  person  shall  catch  mullets  in 
the  waters  of  Carteret  county  with  a  seine  or  net  having  a  mesh 
of  less  than  one  and  one-eighth  inch ;  or  if  any  person  shall  in  the 
waters  of  Carteret  count}',  except  in  ISTeuse  river,  use  for  the  purpose 
of  catching  fish,  except  menhaden  or  fatbacks,  any  seine  or  net 
more  than  two  hundred  and  seventy-five  yards  long ;  or  shall  join  two 
or  more  nets  together  in  said  coimty  so  that  the  length  thereof  shall 
be  more  than  two  hundred  and  twenty-five  yards,  he  shall  be  guilty 
of  a  misdemeanor  and  fined  not  more  than  fifty  dollars  or  impris- 
oned not  more  than  thirty  days.  And  any  person  using  a  net  exceed- 
ing the  length  allowed  by  this  section,  shall  forfeit  said  net,  one- 
half  thereof  to  go  to  the  informer,  the  other  half  to  the  school  fund. 

189.5,  c.   25;    1903,  c.   508. 

2435.  Dutch  nets  in  Carteret  county.  If  any  person  shall  use  or 
cause  to  be  used  any  dutch  net,  pond  net  or  other  stationary  trap, 
net  or  seine  of  similar  description  by  whatever  name  known,  in  the 
waters  of  Carteret  county  for  the  purpose  of  taking  fish  therefrom, 
he  shall  for  each  day's  use  thereof  forfeit  and  pay  the  sum  of  fifty 
dollars.  The  penalties  herein  created  shall  be  recovered  by  a  war- 
rant before  any  justice  of  the  peace  in  the  county  of  Carteret,  and 
shall  be  applied  to  the  use  of  the  public  schools  of  said  county;  and 
such  offender,  in  addition  to  the  penalties  contained  in  this  section, 
shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than  one  hundred 
dollars  nor  more  than  five  hundred  dollars,  or  imprisoned  in  the 
county  jail  not  less  than  six  months  nor  more  than  twelve  months: 
Provided,  this  section  shall  not  ajjply  to  the  ordinary  set  nets  here- 
tofore in  use  in  the  waters  of  said  county. 

Code,  s.  3420;  1883,  c,  199. 

lii'V.  Vol.  1—42  721 


2436  OYSTERS  AXD  FISII-^T7.   Fishln.j.  Cli.  58 

2436.  Obstructions  in  Carteret  County.  If  any  person  shall  ob- 
struct any  navigable  water  or  passageway  for  fish  in  Carteret  county 
by  placing  bushes,  posts  or  any  stationary  materia]  or  tixt\ircs  in  such 
a  manner  as  to  prevent  the  free  ]jassage  of  fish,  he  shall  be  giiilty  of  a 
misdemeanor  and  fined  not  less  than  one  hundred  dollars.  Nothing  in 
this  section  shall  be  construed  to  jn-ohibit  any  person  from  using  a 
lawful  net  or  seine  in  any  way  or  manner  except  as  a  stop  net  or 
seine.  This  section  shall  not  apply  to  any  net  that  the  fish  can  pass 
freely  by  one  end. 

1903,  c.  520. 

2437.  Mullets  in  Carteret,  if  any  person  shall  fish  for  or  catch 
any  mullets  with  any  purse  seine  or  purse  net  in  any  waters  within  the 
limits  of  Carteret  county,  extending  to  the  extreme  limits  of  the  state's 
jurisdiction  in  and  over  such  waters,  he  shall  be  giiilty  of  a  misde- 
meanor and  be  fined  not  less  than  five  hundred  dollars  or  imprisoned 
no.t  less  than  one  year.  For  the  purposes  of  this  section  the  following 
boundaries  are  hereby  declared  to  be  the  boundaries  to  which  the 
waters  of  said  county  extend,  to-wit :  A  distance  of  three  nautical 
miles,  measured  from  the  oiiter  beach  or  shores  of  Carteret  county  out 
and  into  the  waters  of  the  Atlantic  ocean ;  and  any  portions  of  any 
water  within  a  distance  of  three  miles  from  said  waters  of  the 
Atlantic  ocean  to  any  beach  or  shore  of  said  county  shall  be  deemed 
the  Avaters  of  said  county  for  the  purposes  of  this  section. 

1903,  c.  583;   1905,  cc.  274,  508. 

2438.  Menhaden  fishing.  If  any  person  shall  catch  any  menha- 
den or  fatbacks  within  the  waters  of  the  state  of  North  Carolina,  to 
the  extreme  limits  of  the  state's  jurisdiction  in  and  over  such  waters 
in  any  purse  net  or  purse  seine  with  a  bar  of  less  than  one  inch  and 
with  a  mesh  of  less  than  two  inches,  or  shall  knowingly  cook  or  manu- 
facture for  fertilizer  any  menhaden  or  fatbacks  caught  in  any  net  or 
seine  having  bars  of  less  than  one  inch  or  having  meshes  of  Je-ss  than 
two  inches  at  any  place  within  the  state  of  North  Carolina,  he  shall 
be  guilty  of  a  misdemeanor,  and  for  each  and  every  offense  shall  he 
fined  not  less  than  five  hundred  dollars  or  imprisoned  for  one  year, 
or  both,  in  the  discretion  of  the  court.  For  the  purposes  of  this  sec- 
tion the  following  boundaries  are  hereby  declared  to  be  the  bounda- 
ries to  which  the  waters  of  the  said  state  extend,  to-wit:  A  dis- 
tance of  three  nautical  miles,  measured  from  the  outer  beach  or 
shores  of  the  state  of  North  Carolina  out  and  into  the  waters  of  the 
Atlantic  ocean;  and  any  ]>ortions  of  any  water  witliin  a  distajicc  nf 
tlirec  miles  from  said  waters  nf  tlie  .\tlautic  ocean  to  anv  licacli  or 
shore  of  said   stati'  shall  ho  decuicd   witliin   the  waters  of  said   slali' 


L'l.is  OYSTERS  Al^T)  FlSTL—ri.  Fishing.  Ch.   58 

I'lT  the  purposes  of  this  section.  This  section  shall  not  apply  to 
till'  counties  of  Dare,  Brunswick,  Pender  and  ISTew  Hanover.  Every 
person  found  fishing  for  menhaden  or  fatbacks  within  three  miles 

iof  the  shore  of  any  county,  except  the  counties  of  Brunswick,  New 
Hanover  and  Pender,  shall  be  presumed  to  have  violated  this  section. 

iAnd  all  such  persons,  firms  or  corporations  shall  be  subject  to  all  the 
pains  and  penalties  denounced  in  this  section,  and  they  may  be  prose- 
cuted in  the  courts  of  any  county  in  this  state.     All  persons  aiding 
and  abetting  shall  be  guilty  as  principals. 
1905,  ce.  274,  508. 

2439.   Dutch  nets  in  Albemarle  sound  and  its  tributaries.   iSTo 

[person  shall  set  or  fish  any  dutch  net  or  pound  net  in  llounoke  river, 
Cashie  or  Middle  and  Eastmost  rivers,  or  within  two  miles  of  the 
mouth  of  said  rivers,  or  within  one  mile  of  the  mouth  of  any  other 
river  emptying  into  Albemarle  sound,  of  less  than  two  miles  in  width 
at  its  mouth,  and  any  such  net  set  within  one  mile  of  the  mouth  of  any 
other  river  emptying  into  said  sound  shall  not  extend  into  the  main 
channel  at  its  mouth.  No  person  shall  set  or  fish  with  a  dutch  net  or 
pod  net  within  half  a  mile  to  the  eastward  or  westward  of  the  out- 
side windlasses  or  snatch-blocks  of  any  seine  fishery  in  operation  on 
said  sound ;  and  any  such  net  set  or  fished  within  one  mile  of  such 
windlasses  or  snatch-blocks  of  any  seine  fishery  in  operation  shall 
run  in  a  due  north  and  south  course  from  the  shore,  and  shall  not 
extend  further  into  the  sound  from  the  water's  edge  than  the  dis- 
tance from  such  windlasses  or  snatch-blocks  to  the  line  of  such  net ; 
and  all  persons  who  shall  set  or  fish  any  such  net  in  said  sound 
shall  piill  up  and  remove  the  stakes  used  for  the  same  by  the  first 
day  of  June  next  succeeding  the  fishing  season,  and  if  any  person 
shall  set  or  fish  any  dutch  net  or  pod  net  in  said  sound  in  violation  of 
this  section  he  shall  be  guilty  of  a  misdemeanor,  and  be  subject  to 
a  penalty  of  three  hundred  dollars,  to  be  recovered  by  any  person 
in  the  superior  court  of  the  county  in  which  the  oftense  shall  be 
committed.  And  the  sheriff  of  such  county  shall,  when  requested, 
remove  any  portion  of  such  nets  set  or  fished  in  violation  of  this 
section  at  the  cost  of  the  violator:  Provided,  that  dutch  nets  may 
be  used  in  Cashie  river  two  and  one-half  miles  from  its  mouth,  if 
they  do  not  extend  more  than  one-third  the  width  of  said  river  from 
the  shore,  and  such  nets  may  be  along  the  sound  shore  on  the  Bertie 
county  side  between  the  following  points  along  said  shore,  to-wit: 
commencing  at  the  mouth  of  Cherry  Tree  Cut  branch,  Kentrock 
field  and  Landing  field,  and  running  around  the  shore  to  the  mouth 
of  Morgan  swamp,  thence  to  Rock  Spring  branch,  and  that  any 
nets  set  or  fished  within  that  line  shall  not  extend  from  the  shore  in 
any  direction  a  greater  distance  than  four  hundred  and  fifty  A-ards 


iU:J!»  OVSTEKS   AND    FISH— 17.   J- isliii,<i.  Ch.   .-)S 

measured  at  high  water,  and  within  this  distance  of  four  hundred 
and  fifty  yards  is  to  be  included  the  nets,  hedges  and  all  parts  thereof. 

Code,  s.  3383;  1889,  e.  122;  1891,  c.  322;  1895,  e.  245;  1899,  c.  310;  1899,  c.  412. 

2440.  Dutch  nets  in  Pamlico  and  Albemarle  sounds.  If  any  ixr 

son  sliall  set  <ir  tish  any  net,  seine  or  a])plian(.-e  id'  any  kind  for  catch- 
ing fish  at  any  place  witliin  a  radius  of  two  and  onedialf  miles  either 
way  from  Roanoke  Marshes  light-house  at  a  distance  more  than  five 
hundred  j'ards  from  the  shore  of  Roanoke  island  or  the  mainland  on 
the  western  side  of  Croatan  and  Pamlico  sounds ;  or  shall  set  or  fish 
any  pound  or  dutch  net  on  the  eastern  side  of  Pamlico  sound  within 
ten  miles  of  the  Roanoke  Marshes  light-house,  except  such  as  shall 
be  fished  within  five  hundred  yards  of  the  Roanoke  island  or  Hog 
island  shores ;  or  shall  set  or  fish  any  dutch  or  pound  net  on  the  eastern 
side  of  Pamlico  sound  more  than  two  thousand  yards  west  of  a  line 
running  south-southeast  from  Big  island  to  Bulkhead  or  shoal  west 
of  Chicamacomico  or  south  of  said  point  more  than  two  thousand 
yards  from  the  shoals  as  marked  on  the  United  States  government 
chart  made  from  data  obtained  to  November  twenty-second,  one  thou- 
sand nine  himdred  and  four;  or  shall  set  or  fish  any  dutch  or  jiound 
net  on  the  west  side  of  Pamlico  sound  in  said  sound  extending  into 
the  water  more  than  two  thousand  yards  from  the  shore  of  the  main- 
land ;  or  shall  set  or  fish  any  pound  or  dutch  net  in  Croatan  sound 
further  from  the  shore  than  one-fifth  the  width  of  said  sound  at  that 
point ;  or  shall  set  or  fish  any  pound  or  dutch  net  in  the  Albemarle 
sound  more  than  two  thousand  yards  from  the  shore  of  the  mainland, 
or  in  Chowan  river  further  from  shore  than  one-third  the  width  of 
said  river  at  place  where  said  nets  are  fished  or  set,  or  within  one- 
fourth  mile  of  anj'  wharf  used  by  a  steamer  on  said  river;  or  shall  set 
or  fish  any  net  or  appliance  of  any  kind  for  catching  fish  within  one 
mile  on  north  or  south  side  of  a  line  five  miles  long  running  west  from 
center  oi  New  inlet  or  Oregon  inlet,  or  on  north  or  south  side  of  a  line 
five  miles  long  running  northwest  from  center  of  Hatteras  inlet,  he 
shall  be  guilty  of  a  misdemeanor  and  be  fined  or  imprisoned  in  the 
discretion  of  the  court.  The  provisions  of  this  section  shall  apply 
only  to  that  part  of  each  year  beginning  January  fifteenth  and  end- 
ing i\ray  fifteenth.  The  place  of  trial  for  offenses  under  this  section, 
shall  be  the  county  opposite  where  the  act  was  committed.  It  shall 
be  the  duty  of  the  oyster  commissioner  or  assistant  oyster  commis- 
sioner, whenever  an  affidavit  is  delivered  to  him  stating  that  the  afii- 
ant  is  informed  and  believes  that  this  section  is  being  violated  at  any 
particular  place,  to  go  himself  or  send  a  deputy  to  such  place,  investi- 
gate same,  and  he  shall  seize  and  remove  all  nets  or  other  appliances 
setting  or  being  used  in  violation  of  this  section,  sell  same  at  public 
auction  and  apply  proceeds  of  sale  to  payment  of  cost  and  expenses  of 


iM-lo  O^'STERS  AKD  FISH— TV.  Fishin<i.  Ch.   58 

-\ieh  removal,  and  pay  any  balance  remaining  to  tlio  school  fund  of 
I'otmty  nearest  to  Avhere  offense  is  committed. 

1 00;-),  c.  292. 

2441.  Perquimans  river.  If  any  person  shall  fish  with  any  seine, 
or  set  any  dutch  net  or  liedge  within  one  mile  of  a  straight  line  com- 
mencing at  Stephenson's  point  on  the  north  side  of  Perquimans 
river  and  running  in  a  southwesterly  direction  to  the  nearest  point 
■  if  land  on  the  south  side  of  said  river  known  as  BelgTade  bluff,  or 
siuiU  haul  any  seine  or  set  any  dutch  net  or  other  kind  of  net  so 
as  to  extend  beyond  the  middle  of  said  river  at  any  part  thereof, 
he  shall  be  guilty  of  a  misdemeanor. 

1893,  c.  147,  ss.  1,  2.  4. 

2442.  Pasquotank  county.  If  any  person  shall  set  any  jiyke  or 
liound  net  in  Pasquotank  river  above  the  town  of  Elizabeth  City,  or 
-hiill  haul  or  fish  with  a  drag-net,  or  set  a  pound  net  in  Big  Hatley 
I'reek,  or  Little  Hatley  creek  within  two  hundred  yards  of  the  month 
■of  either  of  said  creeks,  he  shall  be  guilty  of  a  misdemeanor  and  be 
fined  not  exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty 
days. 

1895,  c.  389;  1903,  c.  497. 

2443.  Obstructions  in  Little  river,  if  any  person  shall  place  any 
obstruction  in  Little  river,  dividing  the  counties  of  Pasquotank  and 
Perquimans,  and  allow  it  to  remain  for  a  longer  time  than  ten 
days,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than 
five  dollars,  nor  more  than  ten  dollars:  Provided,  nothing  in  this 
section  shall  be  so  construed  as  to  prohibit  citizens  from  fishing  with 
dip-nets  in  said  river  during  the  months  of  March  and  April  in  each 
year. 

Code,  s.  3400;   1881.  c.  18. 

2444.  Fish  offal  not  thrown  in  navigable  waters.  If  any  per- 
son shall  throw,  or  cause  to  be  thrown,  into  the  channel  of  any  of 
the  navigable  waters  of  the  state,  any  fish  oft'al,  in  any  quantity  that 
shall  be  likely  to  hinder  or  prevent  the  passage  of  fish  along  such 
channel,  or  if  any  person  shall  throw  or  caTise  to  be  thrown  into 
the  Avaters  known  as  the  Frying  Pan,  tributary  to  the  Great  Alli- 
gator river,  in  Tyrrell  county,  any  fish  offal  in  any  quantities  what- 
soever, he  shall  be  guilty  of  a  misdemeanor. 

Code,  ss.  3386,  3389,  .3407. 

2445.  Scuppernong  river,  if  any  person  shall  set  any  kind  of 
a  fish  weir  or  })od  net,  gill  net  or  net  of  any  kind  in  the  Scupjiernong 
river  vising  more  than  one-half  of  the  channel  of  said  river,  or  within 


2445  OYSTERS  AND  FISH— T7.  Fishing.  Ch.  58 

one  hundred  yards  of  the  public  bridges  at  Columbia  and  the  Cross 
landing,  crossing  said  river,  he  shall  be  guilty  of  a  misdemeanor, 
and  tiued  a  sum  not  to  exceed  hfty  dollars,  or  imprisoned  not  to 
exceed  thirty  days :  Provided,  this  section  shall  not  apply  to  the  haul- 
ing of  seines. 

Code,  s.  3408;  1885,  c.  18;  1903,  c.  91. 

2446.  Drift  nets  in  the  sounds.  If  any  person  shall  drift  or  fish 
any  drift  nets  between  the  first  day  of  Febi'uary  and  the  first  day  of 
May  of  any  year,  within  two  miles  of  the  mouth  of  any  river  empty- 
ing into  Albemarle  sound,  or  within  three  miles  of  any  seine-beach, 
on  the  Albemarle  or  Croatau  sounds  Avhile  being  fished,  or  within 
ten  miles  of  Ocracoke,  Hatteras,  Oregon  or  New  inlets,  or  within 
ten  miles  of  the  Roanoke  marshes,  he  shall  be  guilty  of  a  misde- 
meanor, and  be  fined  not  less  than  fifty  dollars  or  imprisoned  not 
less  than  thirty  days:  Provided,  the  people  of  Dare  county  shall 
be  allowed  to  use  drift  nets  for  herring. 

Code,  s.  3.396;   1881,  c.  274,  ss.  1,  2;   1883,  c.  145. 

2447.  Frying  Pan  creel<,  Tyrrell  county.  If  any  person  shall  fish 

any  pound  net,  gill  net,  seine  or  nets  of  any  kind  in  Alligator  river 
Avithin  one  mile  of  the  mouth  of  Frying  Pan  creek  in  Tyrrell  county, 
or  shall  set  any  weir  or  fish  net  of  any  kind  or  any  other  obstruc 
tion  that  prevents  the  passage  of  fish  in  said  creek  from  its  mouth 
to  Jarmin's  Point,  at  the  two  pines  and  low  cypress,  he  .shall  be 
guilty  of  a  misdemeanor. 

1880,  c.  105;   1899,  c.  465. 

2448.  Net  stakes  removed  from  certain  waters.  Every  person 

wild  shall  set  or  use  any  net  in  the  waters  of  Pamlico,  Croatan,  Cur- 
rituck or  Albemarle  sounds  or  their  tributaries,  except  Perquimans 
river,  shall  be  required  to  pull  up  and  remove  their  net  stakes  within 
thirty  days  from  the  day  the  nets  Avere  taken  from  them,  and  not 
later  than  the  first  day  of  June,  and  any  per.son  failing  to  pull  up 
and  remove  their  stakes,  as  required  by  this  section,  shall  be  guilty 
of  a  misdemeanor,  and  fined  not  more  than  fifty  dollars  or  impris- 
oned not  more  than  thirty  days. 

Code,  ss.  3382,  3414;  1883,  c.  69;  R.  C,  o.  81,  s.  8;  1844,  c.  40,  s.  7;  1852 
c.  13;  1893,  c.  147. 

2449.  Fishing  in  Frying  Pan.  Tyrrell  county.   If  any  person 

shall  set  any  pound  net  or  dutch  net  in  Alligaldr  river  within  one-half 
niiile  of  the  mouth  of  Frying  Pan  creek  in  Tyrrell  county,  or  in 
Frying  Pan  creek  within  three  miles  of  where  it  enters  into  Alliga- 
tor river,  he  sliall  be  guilty  of  a  misdemeanor  and  shall  be  fined  fifty 


■2UQ  OYSTEES  AND  FISH— F7.  Fishing.  Ch.  58 

ildllars  or  iiiiprisuned  thirty  days,  or  both,  at  the  discretion  of  the 
court. 

1905,  c.  282. 

2450.  Dutch  nets  at  the  inlets,  if  any  person  shall  set  any 
pound  net,  dutch  net  or  hedge  net  within  two  miles  of  Oregon  inlet 
or  Ilatteras  inlet  or  within  ten  miles  of  New  inlet  in  Dare  county, 
North  Carolina,  or  shall  between  the  first  day  of  January  and  the 
first  day  of  May  following  of  any  year,  set  or  operate  any.  seine  or 
stationary  nets  of  any  kind  in  the  main  channels  within  three  miles 
of  the  inside  mouths  of  Ocracoke,  Hatteras,  Oregon,  or  any  other 
inlet  north  of  Ocracoke  inlet,  connecting  the  waters  of  the  Atlantic 
ocean  with  any  of  the  sounds  or  other  inland  waters  of  North  Caro- 
lina, or  shall  lisli  with  seines  or  nets  of  an}-  description  in  the  waters 
of  Bear  inlet  or  Brown's  inlet  or  within  one  mile  of  Bear  inlet  or 
Bro^vll's  inlet,  on  the  eastern  or  western  beach  of  said  inlets,  e.xcept 
at  regularly  established  fisheries  on  said  Bear  or  Brown's  inlet 
beaches,  or  shall  fish  with  seines  or  nets  on  the  inside  of  said  Iiear 
or  Brown's  inlet  within  one-fourth  mile  of  said  inlets  between  the 
first  day  of  October  and  the  first  day  of  April,  he  shall  be  guilty 
of  a  misdemeanor. 

1893,  c.  216;   1903,  c.  724;   1903,  c.  416. 

2451.  Anchor  nets  in  Albemarle  sound.  If  any  person  shall  set 

or  fish  an  anchor,  drift  or  staked  gill  net  in  the  waters  of  Albemarle 
sound  or  its  tributaries  west  of  a  line  running  from  Skinner's  Point 
buoy  to  Roanoke  lighthouse,  or  if  any  person  shall  east  of  said 
line  set  or  fish  in  the  waters  of  said  sound  or  its  tributaries  any 
anchor,  drift  or  staked  gill  net  longer  than  one  thousand  yards,  or 
combination  of  such  nets  longer  than  one  thousand  yards ;  or  shall 
set  or  fish  any  anchor,  drift  or  staked  gill  nets  within  one  and  one-half 
miles  of  any  seine  grounds  on  the  said  sound  or  rivers  empitying 
therein  or  within  one-half  mile  of  any  clutch  net  stand  where  the 
same  is  now  located  in  said  sound  or  rivers,  unless  said  seine  ground 
or  dutch  net  stand  is  owned  by  the  jjerson  setting  such  nets;  or  shall 
set  or  fish  any  line  or  row  of  anchor,  drift  or  staked  gill  nets  any- 
where in  said  sound  or  rivers  nearer  to  any  other  row  of  such  nets 
than  half  the  length  of  the  longer  of  said  row  he  shall  be  guilty  of 
;i  misdemeanor  and  shall  be  fined  not  e.Kceeding  one  hundred  dollars 
f>r  be  imprisoned  not  more  than  thirty  days.  And  any  person  who 
shall  wilfully  violate  the  provisions  of  this  section  shall  forfeit  and 
pay  for  each  violation  of  the  same  the  sum  of  one  hundred  dollars  to 
be  recovered  in  a  civil  action  by  any  one  who  will  sue  therefor ; 
one-half  of  said  recovery  shall  inure  to  the  benefit  of  the  public 
school  fund. 

1897,  c.  51;   1899.  c.  41;   1899,  c.  130. 


2452  OYSTERS  AND  FISH— 77.  Fishing.  Ch.   58 

2452.  Pamlico  county.  If  any  person  shall  set  or  fish  any  dutch 
or  pound  nets  in  the  waters  of  Pandico  eounty,  or  shall  use  any  seine 
or  drag  uet  in  the  waters  of  said  county  including  the  north  side  of 
Neuse  river  from  the  mouth  of  the  ri\'er  to  the  mouth  of  upper 
Broad  creek  from  the  first  day  of  Maj'  to  the  first  day  of  January 
next  ensuing,  or  shall  at  any  time  catch  fish  with  a  seine  or  drag 
net  along  the  shores  of  said  county  on  any  day  of  the  week  except 
Monday,  Wednesday  and  Friday,  he  shall  be  guilty  of  a  misde- 
meanor and  be  fined  not  more  than  fifty  dollai's  or  imprisoned  not 
more  than  thirty  days. 

1885,  c.  198;  1889,  c.  544;   1893,  c.  334. 

2453.  Dutch  nets  in  Neuse  river.  If  any  person  shall  use  or  cause 
to  be  used  any  dutch  net,  pound  uet,  or  other  stationary  trap  net,  or 
seine  of  similar  description  by  whatever  name  known,  in  the  waters 
of  Neuse  river  for  the  purpose  of  taking  fish  therefrom,  except  the 
ordinary  set  net  in  use  in  said  river  prior  to  the  first  day  of  January, 
one  thousand  eight  hundred  and  ninety-seven,  he  shall  for  each  day's 
use  thereof  as  aforesaid  forfeit  and  j^ay  the  sum  of  fifty  dollars. 
The  penalties  herein  created  shall  be  recovered  by  warrant  before 
any  justice  of  the  peace  in  the  county  of  Carteret,  Craven  and  Pam- 
lico or  Lenoir,  and  shall  be  applied  to  the  use  of  the  public  schools 
of  said  counties,  and  such  offender  in  addition  to  the  penalties  con- 
tained in  this  section  shall  be  guilty  of  a  misdemeanor  and  shall  be 
fined  not  less  than  one  hundred  dollars,  nor  more  than  five  hundred 
dollars,  or  imprisoned  in  the  county  jail  not  less  than  six  months 
nor  more  than  twelve  mouths:  Provided,  that  a  resident  and  citizen 
of  the  state  may  fish  with  dutch,  trap  or  pound  nets  in  the  waters  of 
Neuse  river  on  the  Pamlico  side  of  said  river  between  the  mouth  of 
said  river  and  Upper  Broad  creek  not  more  than  five  hundred  yards 
from  the  shore. 

Code,  9.  3397;  1897,  o.  145;  1899,  c.  299:  1899,  c.  422:  1899,  c.  435;  1901,  c.  74; 
1903,  c.  704;  1905,  c.  817. 

2454.  Size  of  meshes  for  seines  in  Neuse  and  Trent  rivers.  If 

any  person  shall  use  any  drag-net  or  seine  with  bars  of  less  size  than 
one  and  a  quarter  inch  in  the  Neuse  and  Trent  rivers,  or  in  any 
of  the  tributaries  thei'cof,  except  for  the  purpose  of  catching  herring, 
from  the  fifteenth  day  of  Jantiary  to  the  fifteenth  day  of  May  of  each 
year,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than 
five  nor  more  than  fifty  dollars  for  every  offense.  This  section  shall 
not  apply  to  the  waters  of  the  Neuse  and  its  tributaries  above  the 
Wayne  and  Johnston  county  lines. 
Code,  s.  3395;   1881,  c.  146,  sa.  1,  2. 


li-L.-.:.  OYSTEES  AND  FISH— TV.  Fisliinfj.  Ch.  58 

2455.  Fishing  in  Trent  river.  If  any  person  shall  set  any  trap, 
fliitch,  pound  or  pod  nut  of  any  description  whatever  in  Trent  river, 
or  shall  at  &ny  time  extend  his  set  nets  more  than  one-third  the  dis- 
tance across  the  Trent  river  from  either  side,  or  shall  set  any  net 
nearer  to  any  other  net  than  one  hundred  yards  either  on  the  same 
i)r  on  the  opposite  side  of  the  river,  or  shall  fish  with  seines  or  set 
nets  of  any  description  in  Trent  river  from  its  mouth  to  upper 
Tucker  bridge,  between  the  hours  of  twelve  o'clock  noon  on  Saturday 
and  twelve  o'clock  noon  on  Monday  of  each  week,  or  shall  set  or  haul 
a  net  or  seine  of  any  description  between  the  town  of  Trenton  and 
Brown's  mill  on  said  river  from  the  sixteenth  day  of  May  to  the  tirst 
day  of  August  in  each  year,  he  shall  be  guilty  of  a  misdemeanor, 
and  shall  be  fined  not  less  than  five  dollars  nor  more  than  ten  dollars 
or  be  imprisoned  not  less  than  ten  nor  more  than  thirty  days. 

Code,  s.  3397;  1893,  c.  447;  1897,  c.  294. 

2456.  Fishing  or  shooting  on  bridges  across  Neuse  or  Trent 

river  at  New  Bern.  If  any  person  being  upon  the  bridges  or  either 
of  them  which  span  the  Neuse  and  Ti-ent  rivers  at  the  city  of  New 
Bei'n,  shall  fish  in  the  waters  of  said  rivers  while  being  on  said 
bridges,  excej^t  with  hand  line  not  attached  to  any  pole,  or  shall  use 
tire  or  shoot  any  firearms  while  standing  or  being  upon  either  of  said 
bridges,  he  shall  be  guilty  of  a  niisdemeanor  and  be  fined  not  exceed- 
ing fifty  dollars  or  imprisoned  not  exceeding  thirty  days. 

1901,  c.  36;   inOl,  c.  320;   1903,  c.  71. 

2457.  Setting  nets  across  streams.  If  any  person  shall  set  a 

net  of  any  description  across  the  main  channel  of  any  river  or  creek, 
or  shall  erect,  so  as  to  extend  more  than  three-fourths  of  the  distance, 
across  any  such  river  or  creek  any  stand,  dam,  Aveir,  hedge  or  other 
obstruction  to  the  passage  of  fish,  or  shall  erect  any  stand,  dam,  weir, 
or  hedge,  in  any  part  of  any  river  or  creek  that  may  be  left  open 
for  the  passage  of  fish,  or  who,  having  erected  any  dam  whei'e  the 
same  was  allowed,  and  shall  not  make  and  keep  open  such  slope  or 
fishway  as  may  be  required  by  law  to  be  kept  open  for  the  free  pas- 
sage of  fish,  he  shall  be  guilty  of  a  misdemeanor. 

Code.  .ss.  3387,  3388,  3389. 

2458.  Hauling  seines,  Cherol<ee  county.  If  any  person  shall  fish 

with  seines  or  drag-nets  or  place  any  finger  or  fall  traps  in  the 
Valley  river,  Xotla  and  Iliawassee  rivers  in  the  County  of  Chero- 
kee, for  the  purpose  of  catching  fish  from  said  rivers,  from  the  fif- 
teenth of  March  to  the  first  day  of  June  in  each  year,  he  shall  be 
guilty  of  a  misdemeanor,  and  fined  not  less  than  ten,  nor  more  than 


2458  OYSTERS  AXD  FISH— F7.  Fishing.  Ch.   .".n 

fifty  dollars,  or  iin))ri,soiiccl  not  less  than  ten  nor  more  than  thirty 
days. 

Code,  s.  3399;  1881,  e.  12;  1897,  c.  293, 

2459.  License  tax  on  nonresidents  fishing  with  seines.  If  any 

person,  not  being'  a  citizen  and  resident  of  this  state,  shall  catch  fish 
by  seines,  nets  or  other  a]jpliances  for  taking  fish  for  marketable  jjnr- 
poses  iu  any  waters  within  the  jurisdiction  of  this  state,  without  first 
obtaining  therefor  a  license  from  the  state  treasurer  and  for  which 
he  shall  pay  a  privilege  tax  of  twenty-five  bimdred  dollars  per 
annum,  he  shall  be  guilty  of  a  misdemeanor,  and  Tipon  conviction 
in  the  superior  court  of  any  county  contiguous  to  the  waters  so 
fished  as  aforesaid,  shall  be  fined  not  exceeding  three  thousand  dol- 
lars or  imprisoned  not  exceeding  two  years,  or  be  both  fined  and  im- 
prisoned, as  aforesaid,  in  the  discretion  of  the  court;  and  any  citi- 
zen of  this  state,  or  other  person  who  shall  form  an  alliance  or  co- 
partnership with  a  nonresident  for  the  purpose  of  evading  this  sec- 
tion or  who  shall  act  as  an  agent  of  any  such  nonresident,  or  as  his 
servant,  agent  or  employee,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  in  the  superior  court  of  any  county  bordering 
upon  the  waters  fished  as  aforesaid,  shall  be  fined  not  less  than  one 
hundred  dollars  or  imprisoned  not  less  than  six  months,  or  be  both 
in  the  discretion  of  the  court;  and  the  nets,  seines,  boats  or  other 
appliances  of  such  person  shall  be  liable  by  civil  action  to  seizure 
and  confiscation  for  the  benefit  of  the  public  school  fund.  Any  per- 
son Vfho  shall  violate  this  section  shall  forfeit  and  pay  the  sum  of 
five  hundred  dollars  for  each  day  engaged  in  fishing  as  aforesaid,  to 
be  sued  for  and  recovered  by  any  citizen  of  this  state,  the  one-half 
of  such  recoverj'  to  be  to  the  use  of  such  citizen  so  suing  and  recover- 
ing the  same,  and  the  other  half  to  the  school  fund.  In  any  civil 
action  for  the  recovery  of  the  penalties  hereinbefore  provided  for 
and  mentioned,  no  person,  agent,  servant  or  other  employee  shall 
be  excused  from  testifying  therein  on  the  ground  of  incriminating 
himself  by  his  answer,  but  such  answer  shall  not  be  used  as  evidence 
against  such  witness  so  testifying  in  any  criminal  action  whatsoever. 

Code,  s.  2202;  1897,  c.  35;  1899,  c.  ,'52. 

2460.  Right  to  fisheries.  Whenever  any  person  shall  acquire  title 
to  lands  covered  Ijy  navigable  water  under  the  chapter  entitled 
Grants,  the  owner  or  ])erson  so  acquiring  title  shall  have  the  right 
to  establish  fisheries  upon  said  lands;  and  whenever  the  owners  of 
such  lands  shall  imjirove  the  same  by  clearing  off  and  cutting  there- 
from logs,  roots,  stumps  or  other  obstructions,  so  that  the  said  land 
may  ho  used  for  the  ])nrpose  of  drawing  or  hauling  nets  or  seines 
thereon  for  the  ])iir]iosc  of  faking  or  catching  fisli,  then  and  in  tliat 


2460  OYSTEES  AND  FISH— T7.  Fishing.  Ch.   58 

case  the  person  who  makes  or  causes  to  be  made  the  said  im- 
provements, his  heirs  and  assigns,  shall  have  prior  right  to  the  use 
of  the  land  so  improved,  in  drawing,  hauling,  drifting  or  setting  nets 
or  seines  thereon,  and  it  shall  be  unlawful  for  any  person,  without 
the  consent  of  such  o'\\Tier,  to  draw  or  haul  nets  or  seines  upon  the 
land  so  improved  by  the  owner  thereof  for  the  purpose  of  drawing- 
or  hauling  nets  or  seines  thereon ;  and  this  section  shall  apply  where 
the  owner  of  such  lands  shall  erect  platforms  or  structures  of  any 
kind  thereon  to  be  used  in  fishing  with  nets  and  seines ;  and  every 
person  who  shall  wilfully  destroy  or  injure  the  said  platform  or 
structures,  or  shall  interfere  with  or  molest  the  owner  in  the  use  of 
such  lands  as  aforesaid,  or  in  any  other  manner  shall  violate  this 
section,  shall  be  guilty  of  a  misdemeanor:  Provided,  this  section 
shall  not  be  so  construed  as  to  relieve  any  person  from  ]iunishm('ut 
for  the  obstruction  of  navigation. 

Code,  s.  3.3S4;  1874--).  c.  183,  ss.  1-6. 

2461.  Obstruction  of  fish  in  Hiawassee  river.  No  person  shall 

make,  construct  or  Iniild  any  dam,  drag-net  or  seine  across  more 
than  three-fourths  of  Hiawassee  river,  so  as  to  prevent  or  hinder 
the  free  passage  of  fish  in  said  river,  and  any  person  making  or  using 
any  dam,  drag-net  or  seine  in  said  river  shall  leave  open  and  unob- 
structed to  the  free  passage  of  fish  at  least  one-fourth  of  said  river, 
in  width,  on  the  side  most  favorable  to  the  passage  of  fish.  Any 
person  offending  against  this  section  shall  be  gaiilty  of  a  misde- 
meanor, and  fined  not  more  than  ten  dollars  for  each  twenty-four 
hours  said  river  is  so  obstructed,'  one-half  to  the  use  of  the  school 
fund,  the  other  half  to  the  use  of  the  county  in  which  such  violation 
occurs. 

Code,  s.  3398;   1881,  c.   11,  ss.   1,  2,  3. 

2462.  Regulated  in  certain  streams.  No  person  shall  place  or 

allow  to  remain  any  dam  for  mill  or  factory  purposes  in  the 
Chowan  river  between  Holliday's  island  and  the  Virginia  line ; 
in  the  Meherrin  river  between  its  mouth  and  the  ^'irginia  line ; 
in  the  Roanoke  river  from  the  mouth  of  the  Cashie  river  to  the 
Virginia  line ;  in  the  Dan  river  from  the  crossing  of  the  state 
line  to  a  point  nearest  Danbury ;  in  the  Neuse  river  from  Xew 
Bern  to  Neuse  station  in  Wake  county;  in  Contentnea  creek 
from  its  junction  with  the  Neuse  to  the  junction  of  Turkey  and 
^loccasin  creeks ;  in  the  Cape  Fear  river  from  Wilmington  to  the 
junction  of  Haw  and  Deep  rivers  and  thence  in  Haw  river  to  the 
line  of  Chatham  and  Alamance  counties,  and  also  in  Deep  river  to 
the  Randolph  and  Chatham  line ;  in  Rocky  river  from  its  mouth  to 
the  crossing  of  the  Pittsboro  and  Ashboro  road;  in  the  New  Hope 


2462  DVSTEJiS  A.Xl)  FISH— 17.  Fishm;/.  VU.   .".s 

river  from  its  inoutli  to  the  Orange  couuty  line;  in  .Xortbeast  Capu 
Fear  river  from  Wilmington  to  Sonth  Washington;  in  Black  river 
from  its  mouth  to  the  junction  of  the  Coharie ;  in  the  South  river 
from  its  junction  with  the  Black  river  to  the  crossing  of  the  Fayettc- 
ville  and  Warsaw  public  road ;  in  Lumber  river  from  the  state  line 
to  the  northern  boundary  of  Kobeson  county;  in  the  Yadkin  river 
from  the  state  line  to  Patterson's  factory ;  in  Elk  ci-eek,  a  tributary 
of  the  Yadkin  river,  from  its  mouth  to  Daniel  Wheeler's  in  Wa- 
tauga county;  in  Stony  Fork  creek,  a  tributai-y  of  the  Yadkin  river, 
from  its  mouth  to  John  Jones'  old  store ;  in  Ararat  river  from  its 
mouth  to  the  bridge  at  Mount  Airy ;  in  Linville  river  from  its  mouth 
to  Linville  Falls ;  in  North  Fork  of  Catawba  from  its  mouth  to  Tur- 
key Cove ;  in  Broad  river  from  the  state  line  to  Reedy  Patch  creek ;  in 
Green  river  from  its  mouth  to  its  junction  with  Xorth  Pacolet ;  in  the 
Tennessee  river  from  the  state  line  to  its  junction  with  the  iSTantahala ; 
in  Pigeon  river  from  the  state  line  to  the  Forks  of  Pigeon;  in  the 
French  Broad  river  from  the  state  line  to  Brevard  and  in  the 
Swamianoa  river;  in  Toe  river  from  the  state  line  to  the  contin- 
ence of  the  North  and  South  Forks  of  Toe ;  in  New  river  from  the 
state  line  to  the  point  of  divergence  from  the  western  boundary  line 
of  Alleghany  county;  in  Little  river  in  Johnston  county  from  its 
junction  with  Neiise  river  in  Wayne  county  to  the  Wake  county 
line ;  in  Cain  river  from  the  mouth  of  same  to  mouth  of  Boiling 
creek  in  Yancey  county,  also  Old  Fields  of  Toe  on  North  Toe 
river  in  Mitchell  county;  Johns  river  from  its  mouth  to  the  forks 
of  said  river  near  Carrell  Moore's  in  Caldwell  comity ;  Catawba 
river  from  the  South  Carolina  line  to  the  town  of  Old  Fort  in 
McDowell  county,  imless  the  o^vner  thereof  shall  construct  thereon 
at  his  own  expense  a  sluice-way  for  the  free  jjassage  of  fish,  of 
a  width  not  less  than  three  feet  nor  more  than  ten  feet:  Pro- 
vided, such  sluice-way  shall  be  constructed  according  to  plans  and 
specifications  to  be  furnished  by  the  board  of  agTicnlture,  and  shall 
not  injure  the  water-jDOwer  of  such  owner:  Provided  further,  in 
order  to  ascertain  whether  sluice-ways  will  or  will  not  injure  the 
water-power  aforesaid  the  owner  of  such  dam  may  select  two  dis- 
interested persons  and  the  board  of  agriculture  two  others,  who  may 
select  the  fifth  person  to  aid  in  the  arbitration  and  settlement  of  such 
complaint:  Provided  further,  this  section  shall  not  a])ply  to  Pigeoi: 
river  in  Haywood  county:  Provided  also,  it  shall  be  lawful  for  any 
.  person  to  remove  any  obstruction  in  the  main  channel  of  the  Cape 
Fear  river  to  the  width  of  one  hundred  feet,  for  the  free  passage  of 
fish  in  the  county  of  Harnett.  This  ])roviso,  however,  shall  not  apply 
to  any  dam  or  obstruction  ])laced  or  kept  upnu  said  ri\er  liy  tiie  Cape 
Fear  Iron  and  Steel  Company. 

Code.  s.  .-UIO:   111(11.  ,-.  -illS;   issn,  c,  :14;   IS.Sl,  n\  'il,  IVl.  -IM.  ;!20 :   100.'),  c.  278. 


i>-K;:;  OVSTKRS  AXD  FLSJI— IY.  fishiii,;.  Ch.   58 

2463.  Sluice-ways  kept  open  when  constructed.  The  sluice- 
ways i-ef erred  to  in  the  preceding  section  shall  be  so  constructed  and 
placed  upon  such  dams  by  the  owner  thereof  within  sixty  days  after 
notice  has  been  given  by  the  board  of  agi-iculture,  under  a  penalty 
of  one  hundred  dollars  per  day  for  each  day  thereafter  that  such 
dam  shall  remain  Avithout  such  shiice-way,  and  shall  be  kept  open 
by  him  during  the  mouths  of  February,  March,  April,  May,  June, 
October  and  Xovember,  and  at  all  other  times  when  there  is  suffi- 
cient water  to  supply  both  the  water-power  and  the  sluice-way,  a  fine 
of  fifty  dollars  per  day.  for  each  day  said  slnice-way  shall  be  allowed 
to  remain  closed,  and  any  person  Avho  shall  fish  with  net,  trap,  hook 
and  line,  or  who  shall  take  in  any  way  whatsoever  any  fish  within 
two  hundred  feet  of  said  sluice-way  shall  be  subject  to  a  fine  of  one 
dollar  for  each  fish  so  taken,  or  a  fine  of  fifty  dollars  for  each  offense, 
or  imprisonment  for  thirty  days. 

Code,  s.  3411 ;  1880.  c.  34,  s.  2. 

2464.  Obstructions  removed.  Xo  other  obstruction  to  the  pas- 
sage of  fish  shall  exist  or  be  built  between  the  designated  points  in 
the  streams  mentioned  in  the  two  preceding  sections  unless  an  open- 
ing of  not  less  than  twenty-five  feet,  and  not  more  than  seventy-five 
feet,  embracing  the  main  channel  of  said  streams,  shall  be  made  by 
the  owner  of  such  obstructions  within  twenty  days  after  notice  from 
the  board  of  agriculture  to  make  such  opening  under  penalty  of  fifty 
dollars  per  day  for  each  day  such  obstruction  shall  remain  unopened. 
Said  notice  shall  be  served  by  the  sheriff'  of  the  county,  and  his  return 
shall  be  prima  facie  evidence  of  notice  in  any  suit  for  such  penalty. 

Code,  s.  3412;    1880,  c.  34,  s.  3. 

2465.  Vessel  injuring  nets.  If  any  master  or  other  person  hav- 
ing the  management  or  control  of  a  vessel  or  boat  of  any  kind,  in  the 
navigable  waters  of  the  state,  shall  wilfully,  wantonly,  and  unneces- 
sarily do  injury  to  any  seine  or  net,  which  may  be  lawfully  hauled, 
set  or  fixed  in  said  waters  for  the  purpose  of  taking  fish,  he  shall 
forfeit  and  pay  to  the  owner  of  such  seine  or  net,  or  other  person 
injured  by  such  act,  one  himdred  dollars,  and  shall  be  guilty  of  a 
misdemeanor. 

Code,  ss.  3385,  3389. 

2466.  Use  of  dynamite  for  killing  fish.  If  any  person  shall  use 

any  dynamite  or  any  other  explosive  agent  whatever  for  killing  fish, 
or  shall  exjilode  any  dynamite  or  other  explosive  agent  in  the  public 
waters  of  the  state  where  fish  are  found,  except  for  mechanical  or 
manufacturing  purposes,  he  shall  be  guilty  of  a  misdemeanor  and 
fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty 


2466  OYSTERS  AND  FISH— F/.  Fishing.  Ch.   58 

(lays.  The  possession  of  fish  killed  by  explosive  agencies  shall  be 
prima  facie  evidence  that  explosives  were  used  for  the  j^urpose  of 
killing  fish. 

Code,  s.  3405;   1889,  c.  312. 

2467.  When  nonresident  may  use  seines.  If  any  person  who 

has  not  resided  in  the  state  continuous!)-  for  at  least  twelve  months 
next  preceding  the  day  on  which  he  shall  begin  to  take  fish  shall 
use,  or  cause  to  be  used,  in  any  of  the  waters  of  the  state,  any 
weir,  hedge,  net,  or  seine,  for  the  purpose  of- taking  fish  for  sale  or 
exportation,  or  if  any  person  shall  assist  in  using,  or  be  interested 
in  using  or  causing  to  be  used,  in  any  such  waters  for  the  purpose 
aforesaid,  any  weir,  hedge,  net,  seine  or  tongs  in  the  use  of  which  any 
such  nonresident  person  may  have  an  interest,  he  shall  be  guilty  of 
a  misdemeanor.  Nothing  herein  shall  prevent  any  person  from  fish- 
ing with  seines  hauled  to  the  shore  at  any  fishery,  the  title  to  which 
fishery  or  any  interest  therein  having  been  acquired  by  such  per- 
son by  purchase  or  inheritance.  This  section  shall  not  extend  to 
servants  employed  to  fish  by  any  persons  allowed  to  fish  in  the  navi- 
gable waters  of  the  state :  Provided,  no  nonresident  of  the  state  shall 
make  any  sale,  assignment  or  transfer  of  any  fishery,  weir,  or  other 
fishing  ajjj^aratus,  or  privilege  mentioned  in  this  section,  to  any  citi- 
zen of  the  state  for  the  purpose  of  operating  and  working  said  fishery, 
weir,  or  other  fishing  apparatus  as  aforesaid,  under  the  name  and 
OAvnership  of  such  citizen,  or  as  the  servant  or  employee  of  any  citi- 
zen ;  and  any  sale,  transfer  or  assignment  not  made  bona  fide  and 
for  a  fidl  consideration,  shall  be  null  and  void.  Upon  affidavit 
founded  upon  information  and  belief  that  any  nonresident  of  the 
state  is  operating  any  such  fishery,  weir,  or  other  fishing  apparatus 
as  aforesaid  in  the  waters  of  the  state,  under  such  sale,  assignment 
or  transfer,  as  the  pretended  servant  or  employee  of  any  citizen  of 
the  state,  it  shall  be  the  duty  of  the  justice  of  the  peace  before  whom 
said  affidavit  is  made,  to  issue  a  warrant  against  the  said  nonresi- 
dent and  citizen  under  whose  name  said  fishery  is  operated,  and 
upon  conviction  the  said  offenders  shall  be  guilty  of  a  misdemeanor, 
and  shall,  for  every  offense,  be  fined  not  more  than  fifty  dollars,  or 
imprisoned  not  more  than  thirty  daj's.  Upon  the  said  trial,  the 
burden  of  proof  shall  be  on  the  defendants  to  prove  the  bona  fides 
and  full  consideration  of  said  sale  or  transfer. 

Code,  ss.  3379,  3380;  R.  C,  c.  81,  s.  .5;  1844,  c.  40,  s.  1;  1876-,  c.  .33; 
1883,  c.  171. 

2468.  In  New  Hanover  county.  If  any  person  shall  use  any  net 
for  catching  sturgcmi  in  llio  wnlrrs  of  New  Hanover  county,  the  bars 
of  the  mcslies  (if  wliicli  net  shall  ])r  less  tliau  ten  iuclios  iu  tlio  dia- 

734 


2468  OYSTEKS  AND  FISH— F/.  Fishing.  Cli.  58 

luond;  or  if  any  person  shall  fish  any  seine  or  net  in  the  waters  of 
said  county  between  the  first  day  of  January  and  the  first  day  of 
July  of  each  year,  or  shall  haul  a  seine  or  nets  or  pod  fish  within 
three  hundred  yards  of  any  established  fishery,  except  with  the  nets 
of  such  fishery ;  or  shall  set  or  fish  any  stationary  nets  in  the  waters 
iif  the  Cape  Fear  river,  except  on  the  east  side  thereof  and  in  New 
Hanover  county;  or  shall  set  any  net  in  said  river  otherwise  than 
east  or  west,  or  shall  own  or  control  more  than  one  line  of  nets,  or 
shall  operate  or  fish  any  shad  nets  in  Cape  Fear  river  below  the 
mouth  of  Brunswick  river  between  the  fifteenth  day  of  April  and 
the  first  day  of  January  of  any  year ;  or  shall  set  any  set  net  or  sta- 
tionary net  of  any  kind  in  the  Cape  Fear  river  north  of  the  moutli 
of  the  Brunswick  river,  or  in  the  Brunswick  river;  or  shall  operate 
any  drift  net  in  the  Cape  Fear  river  of  more  than  three  himdred 
yards  in  length,  or  shall  catch  shad  in  said  river  with  seines  or  nets 
from  the  fifteenth  of  May  to  the  first  of  January,  he  shall  be  giiilty 
of  a  misdemeanor.  The  possession  of  a  sturgeon  net  with  meshes  of 
a  size  smaller  than  allowed  by  this  section  shall  be  prima  facie  evi- 
dence of  having  fished  the  same.  In  setting  nets  in  Cape  Fear  river 
as  allowed  by  this  section  the  following  rules  shall  prevail :  They 
shall  begin  at  a  point  one  hundred  yards  from  the  edge  of  the  chan- 
nel on  the  east  side  of  said  river  and  nmning  thence  due  east  one 
hundred  and  twenty  yards,  then  leaving  a  gap  of  one  hundred  and 
twenty  yards.  Then  from  the  east  end  of  said  gap  another  net 
may  be  set  one  hundred  and  twenty  yards  only,  and  to  continue  in 
the  same  proportion,  always  requiring  a  gap  of  one  hundred  and 
twenty  yards  to  intervene  between  each  one  hundred  and  twenty  yards 
of  nets  so  set,  and  no  net  or  sets  of  nets  of  any  kind  shall  be  placed 
opposite  said  gaps,  within  a  distance  of  a  half  mile  of  same,  and 
none  of  the  nets  so  set  shall  be  nearer  than  a  half  mile  of  the 
west  shore  of  said  Cape  Fear  river.  An  established  fishery  in  the 
meaning  of  this  section  is  one  where  there  is  a  camp  for  the  use  of 
the  hands,  and  where  the  seine  or  nets  and  boats  \ised  by  the  said 
fishery  are  kept,  and  where  the  said  fishery  was  established  prior 
to  the  first  day  of  January  one  thousand  eight  hundred  and  ninety- 
nine. 

Code,  s.  3403;  1901.  c.  173;  1899,  c.  440;  1881,  e.  2S0. 

2469.  Northeast  Cape  Fear.  If  any  person  shall  fish  in  the 
northeast  branch  of  the  Cape  Fear  river  with  seine,  net  or  trap,  fi"om 
the  twenty-third  day  of  February  to  the  first  day  of  July  of  any  year, 
between  the  hours  of  six  o'clock  p.  m.  on  Saturday  and  six  o'clock 
p.  m.  on  Monday  of  each  week,  or  shall  at  any  time  use  more  than 
one  seine  at  a  time  in  any  fisliing  hole  in  said  river,  or  use,  set  or 
place  in  said  river  any  liedge,  trap  or  other  obstruction  which  will 


2469  OYSTEES  AND  FISH— 17.  Fishimj.  Ch.  f-N 

prevent  the  free  passage  of  fish  up  said  river,  which  said  hedge,  trap 
or  other  obstruction  shall  extend  more  than  one-third  across  the 
main  channel  of  the  said  river,  he  shall  be  guilty  of  a  misde- 
meanor. This  section  shall  not  a])ply  to  that  portion  of  said  river 
which  lies  between  the  city  of  Wilmington  and  a  point  on  said  river 
known  as  The  Three  Cypresses,  twelve  miles  distant  from  said  city 
of  Wilming-ton. 

.  1S89,  c.  182;  1891,  c.  198. 

2470.  In  Brunswick,  New  Hanover  and  Pender  counties.    If 

any  person  shall  use  in  any  of  the  •waters  of  linin^-wirk,  Xew  Han- 
over and  Pender  counties  any  nets,  seines,  set-downs,  fish  traps  or 
any  other  nets  of  any  description  for  the  purpose  of  taking  fish,  the 
bars  of  the  meshes  of  which  nets,  seines,  sct-do-\\Tis,  or  fish  traps  shall 
be  less  than  one  and  one-eighth  inches  in  length  ;  or  shall  with  seines 
or  nets  of  any  kind,  catch  any  fish  in  the  waters  of  the  Cape  Fear 
river  from  its  mouth  to  the  ]>laden  county  line,  or  in  the  waters  of 
the  Northeast  Cape  Fear  or  Black  rivers  in  Pender  county  between 
six  o'clock  p.  m.  on  Tuesday  and  six  o'clock  p.  m.  on  Wednesday,  or 
shall  obstruct  the  free  passage  of  fish  in  the  waters  of  said  rivers,  ho 
shall  be  guilty  of  a  misdemeanor. 
1885,  c.  226;   1887,  c.  71. 

2471.  In  Black  river  and  Mingo  creek.  If  any  person  shall  fish 

in  that  part  of  Ijlack  river  in  Sampson  and  Cumberland  counties  and 
below  the  Atlantic  Coast  Line  Railway  bridge,  or  in  ilingo  creek  in 
said  counties  below  the  Averasboro  and  Clinton  I'oad  otherwise  than 
with  a  hook  and  line,  he  shall  be  guilty  of  a  misdemeanor. 
1895,  c.  270. 

2472.  In  certain  streams  in  Cumberland,  New  Hanover,  Bruns- 
wick and  Sampson  counties.  If  any  per.son  shall  catch  or  destroy 
with  seines,  nets,  firearms,  bows  and  arrows,  or  by  muddying  or 
stirring  the  waters,  or  by  striking  any  fish  of  any  kind  in  the  waters 
of  Black  or  South  rivers,  or  the  waters  of  Big  Coharie,  Little  Co- 
harie,  Bear  Skin  and  Big  Swamps  in  the  counties  of  New  Hanover. 
Sampson,  Cumberland  and  Harnett,  and  of  the  waters  of  Six  Runs 
in  the  counties  of  New  LLanover  and  Sampson,  and  of  the  waters  of 
the  Cape  Fear  river  in  the  counties  of  New  Hanover  and  Brunswick, 
and  of  the  northeast  branch  of  the  Cape  Fear  river  in  the  county  of 
Now  Hanover,  l)etwoeu  the  fifteentli  days  of  ^fay  and  August  of  each 
year,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  to  exceed 
five  dollars. 

Code,  s.  3409;  1889,  c.  414;  1871-2,  e.  152;  1879,  c.  283;  1881,  c.  .309. 


2473  OYSTEES  AND  FISH— TY.  Fishing.  Ch.   58 

2473.  Obstructions  in  South  Forl<  river.  Xo  person  or  corpora- 
tion shall  ])laee  or  alluw  to  remain  in  the  South  Fork  river,  from  its 
mouth  in  Gaston  county  to  its  forks  in  Catawba  county,  any  obstruc- 
tion to  the  free  passage  of  fish  up  said  stream:  Provided,  this  section 
shall  not  apply  to  milldams  where  the  owners  thereof  shall  construct 
a  sufficient  fishway  over  said  dams  at  least  ten  feet  wide  which  will 
allow  fish  to  pass  over  said  dams:  Provided  further,  this  section 
shall  not  apply  to  dams  in  existence,  or  which  may  be  erected  for 
manufacturing  or  milling  purposes.  The  violation  of  this  section 
shall  be  a  misdemeanor. 

Code,  s.  340G;  1S79,  c.  244.  ss.  1,  2;  1881,  e.  90. 

2474.  Obstructions  in  Neuse  river.  Any  person  who  shall  con- 
struct a  dam,  put  in  traps,  dutch  net,  wire  seine,  or  anything  else  in 
Xeuse  river  between  its  mouth  and  the  Falls  of  ISTeuse  in  Wake 
county,  for  the  purpose  of  obstructing  the  passage  of  fisb  in  said 
river  shall  be  guilty  of  a  misdemeanor  and  be  fined  not  exceeding 
fifty  dollars  or  imprisoned  not  exceeding  thirty  days:  Provided, 
this  section  shall  not  apply  to  seines,  set  nets,  running  or  .skimming 
nets:  Provided,  this  section  shall  not  prevent  the  use  of  traps  in 
Wayne  county,  where  the  trap  and  its  wings  do  not  extend  more  than 
one-third  across  the  stream. 

Code,  s.  3422;  1885,  c.  391;  189.3,  c.  354;  1883,  e.  301,  ss.  1,  2;  1895.  e.  403; 
1901.  e.  395. 

2475.  Regulated  in  Lumber  river.  It  shall  be  unlawful  for  any 

jierson  to  use  any  seine,  net  or  gig,  or,  by  muddying  the  water  or 
by  shooting,  to  catch,  take  or  kill  fish  in  the  Lumber  river  by  any 
means  except  the  ordinary  rod,  line  and  hook,  from  the  first  day  of 
March  to  the  first  day  of  November  in  each  and  every  year ;  and  any 
person  violating  this  section  shall  be  guilty  of  a  misdemeanor,  and 
shall  pay  a  fine  of  forty  dollars,  or  be  imprisoned  not  more  than 
twenty  days. 

Code,  s.  3404;  1881,  c.  288,  ss.  1,  2;  1883,  ec.  13,  78. 

2476.  Fishways  to  be  erected  in  Haw  river.  All  persons  main- 
taining dams  across  Haw  river  in  the  county  of  Chatham  shall,  upon 
thirty  days'  notice  from  the  board  of  commissioners  of  said  county, 
establish  fishways  in  said  dams;  and  if  said  fishways  shall  not  be 
made  within  three  months  from  the  service  of  tbe  notice,  said  persons 
s<i  offending  shall  be  guilty  of  a  misdemeanor,  and  fined  at  the  dis- 
cretion of  the  court. 

Code,  s.  .3402;   1881,  e.  343,  ss.  1.  2. 

2477.  Regulated  in  Nantahala  river.  If  any  person  .shall  use 

any  drag-net,  basket  or  seine  for  the  purpose  of  catching  fish  in  Nan- 
Rev.  Vol.  1—43  737 


2477  OYSTERS  AND  FISH— T7.  Fishing.  Ch.  5b 

taliala  river  or  its  tributaries,  be  sball  be  guilty  of  a  misdemeanor, 
atid  fined  not  less  than  five  nor  more  than  twenty  dollars  for  each 
offense,  one-half  to  go  to  the  school  fund  of  the  county'  where 
such  offense  is  tried,  and  the  other  half  to  the  informer ;  and  when- 
ever the  Xantahala  river  forms  the  dividing  line  between  any  coun- 
ties persons  offending  against  this  section  may  be  prosecuted  and 
punished  in  the  courts  of  any  of  the  counties  between  which  the  said 
river  constitutes  the  dividing  line. 
Code,  s.  3401;   1881,  c.  30,  ss.  1,  3. 

2478.  Robbing  nets.  If  any  person  shall,  without  authority  of 
the  owner,  take  any  fish  from  any  nets  of  any  kind,  be  shall  be 
guilty  of  a  misdemeanor. 

Code,  s.  3418;   1883,  c.  137,  s.  5. 

2479.  Obstructions  in  certain  streams  in  Henderson  county. 

iSTo  person  shall  make,  construct  or  biiild  any  dam,  drag-net  or  seine 
across  more  than  three-fourths  of  the  French  Broad,  Mills,  Gia^en  or 
Broad  rivers,  or  any  of  their  tributaries,  in  Henderson  county,  so  as 
to  prevent  or  hinder  tlie  free  passage  of  fish  in  said  rivers  and  their 
said  tributaries,  and  any  person  making  or  using  any  dam,  drag-net 
or  seine  in  said  streams,  shall  leave  open  and  unobstructed  to  the  free 
passage  of  fish  at  least  one-fourth  of  said  streams,  in  width,  on  the 
side  most  favorable  to  the  passage  of  fish.  Any  person  offending 
against  this  section  shall  be  fined  not  more  than  ten  dollars  for  each 
twenty-four  hours  said  streams  are  so  obstructed,  one-half  to  the 
party  suing  for  the  same,  and  the  other  half  to  the  school  fund  in 
said  county;  and  any  person  violating  this  section  shall,  in  addition 
to  the  penalty  prescribed,  be  guilty  of  a  misdemeanor:  Provided, 
this  section  shall  not  apply  to  dams  for  manufacturing  purposes. 
Code,  s.  3425;   1885,  c.  58. 

2480.  Trout  in  Cataloochee  creel<,  Haywood  county.  If  any 

person  shall  fish  for  trout  in  Cataloochee  creek  or  its  tributaries  in 
Haywood  county,  and  offer  such  trout  for  sale  as  a  matter  of  traffic, 
or  shall  fish  for  trout  in  such  streams  without  permission  from  the 
owners  of  the  land  contiguous  thereto,  he  shall  be  guilty  of  a  mis- 
demeanor and  be  fined  not  more  than  twenty  dollars  or  imprisoned 
not  more  than  ten  days. 

1885,  c.  61. 

Note.     For  manner  of  est.alilisliing  prior  ri^lit  of  fishery,  sec  ss.  1607,  1698. 

2481.  Mullets  in  Brunswick  county.  If  any  person,  firm  or  cor- 
poration shall  fish  for  and  catch  any  mullets  with  any  purse  seine  or 
purse  net  in  the  waters  within  the  limits  of  Brunswick  county,  ex- 
tending to  the  extreme  limits  of  the  state's  jurisdiction  in  and  over 

738 


2481  OYSTEKS  AND  FISH— 77.  Fishing.  Ch.  58 

said  waters;  and  for  the  purpose  of  this  section,  any  portion  of  any 
water  within  a  distance  of  three  nautical  miles  from  the  outer  shores 
of  said  county  shall  be  deemed  the  waters  of  said  county.  Or  if  the 
master  or  any  emialoyee  on  any  steamboats  engaged  in  fishing  for 
menhaden  or  fatbacks  shall  discharge  from  said  boat  fish  offal,  blood 
or  slime  within  a  distance  of  one-half  of  a  mile  of  any  established 
mullet  fishery  on  the  Brunswick  county  coast  between  the  first  of 
August  and  the  thirty-first  of  December  of  each  year,  he  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined  or  im- 
prisoned at  the  discretion  of  the  court.  For  the  purposes  of  this  sec- 
tion an  established  fishery  is  declared  to  be  that  point  on  the  beach 
occupied  by  the  surfboat  and  seine  in  regular  use. 
1905,  c.  748. 

2482.  Fishing  within  twelve  miles  of  Grandfather  mountain.  If 

any  person  shall  take,  catch  or  kill  any  kind  of  fish  in  the  waters  of 
Linville  river  or  in  any  other  stream  within  twelve  miles  from  the 
summit  of  Grandfather  mountain  in  Mitchell  county,  without  the 
written  consent  of  the  owners  or  lessees  of  the  land  through  which 
said  streams  flow,  or  shall  throw  or  empty  into  said  river  or  streams 
any  matter  or  substance  deleterious  or  injurious  to  the  life  of  moun- 
tain trout,  he  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be 
fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty 
days.  If  any  person  be  seen  at  or  near  said  stream  or  streams  with 
net,  seine,  rod  or  any  other  kind  of  fishing  tackle,  the  same  shall  be 
prima  facie  evidence  of  the  violation  of  this  section. 
1905,  c.  113. 

2483.  Fish  traps  in  Cape  Fear  river.  If  any  person  shall  con- 
struct, operate  or  maintain  any  fish-traps  in  the  Cape  Fear  river,  or 
shall  fail  to  remove  all  traps  now  in  the  channel  of  said  river  within 
sixty  days  from  the  first  day  of  March,  one  thousand  nine  hundred 
and  five ;  or  shall  fail  on  the  first  day  of  June  of  each  year  to  remove 
the  slats  or  fingers  from  any  fish  trap  allowed  to  be  operated  in  said 
river  under  this  section,  he  shall  be  guilty  of  a  misdemeanor.  This 
section  shall  not  apply  to  Brunswick  or  ISTew  Hanover  counties  or  to 
a  fisli  trap  which  extends  to  not  more  than  one-third  the  channel  of 
said  river. 

1905,  c.  500. 

2484.  Kitty  Hawk  bay.  If  any  person  shall  take,  catch  or  cap- 
ture any  fish  with  nets  or  other  appliances  in  the  waters  of  Kitty 
Hawk  bay  and  its  tributaries,  that  part  lying  in  Dare  county,  be- 
tween the  thirtieth  day  of  April  and  the  fifteenth  day  of  October  of 
each  year,  or  shall  sell  or  ship  out  of  the  coiinty  any  chub  or  perch 

739 


24S4  OYSTERS  AXD  FISH— TV.  Fishing.  Ch.  58 

between  said  dates,  he  shall  be  giiilty  of  a  misdemeanor  and  fined  not 
more  than  fifty  dollars  or  imprisoned  not  more   than   thirty  days. 
jSTothing  in  this  section  shall  prevent  any  citizen  from  catebinii-  fish  at 
any  time  for  home  consimiption. 
1905,  c.  363. 


CHAPTEE  59. 


PARTITION. 

Sections. 

I. 

Procedure, 

24S5— 2498 

II. 

Lauds  in  two  states, 

2499—2503 

III. 

Personal  property, 

2504—2505 

IV. 

Sale  of  land. 

2506—2517 

V. 

Sale  for  public  use. 

2518 

VI. 

Sale  of  personalty, 

2519—2520 

I.     Procedube. 

2485.  As  in  special  proceedings.  The  jnoccdurc  in  all  cases  for 
partition,  under  this  chapter,  shall  be  the  same,  in  all  respects,  as 
prescribed  by  law  in  other  special  proceedings,  except  as  modified 
herein. 

Code,  s.  1923;  1868-9,  c.  122,  s.  33. 

2486.  Venue.  The  proceedings  for  partition,  actual  or  by  sale, 
must  be  instituted  in  the  county  where  the  land  lies.  If  the  land  to 
be  partitioned  lies  in  more  than  one  county,  the  proceedings  maj'  bo 
instituted  in  either  of  the  counties. 

Code,  s.  1898;  1868-9,  c.  122,  s.  7. 

2487.  Petition  filed;  commissioners  appointed.   The  superior 

courts  on  petition  of  one  or  more  persons  claiming  real  estate  as  ten- 
ants in  common,  shall  appoint  tliree  disinterested  commissioners  to 
divide  and  apportion  such  real  estate,  or  so  much  thereof  as  the  court 
may  deem  best,  among  the  several  tenants  in  common. 
Code,  s.  1892;  1868-9,  c.  122,  s.  1. 

2488.  Separate  partition  of  surface  and  mineral  interests. 

When  the  title  tii  the  miiiei'al  int(>rests  in  any  hind  has  become  se]ia- 
rated  from  the  surface  in  ownership  the  tenants  in  eonnuon  of  such 
mineral  interests  may  have  partition  of  the  same,  distinct  from  the 
surface,  and  without  joining  as  ])arties  the  owner  or  owners  of  the 
surface;  and  tlic  tenants  in  (■iiiniiinn  of  tlio  surface  may  lia\-c  ]iarti- 


2488  PARTITION— 7.  Procedure.  Ch.   59 

tion  of  the  same,  in  raanner  provided  by  law,  distinct  from  tlie  min- 
eral interests  and  without  joining  as  parties  the  owner  or  owners  of 
the  mineral  interests.  And  in  all  instances  whore  the  mineral  inter- 
ests and  surface  interests  have  thus  become  separated  in  ownership, 
the  owner  or  owners  of  the  mineral  interests  shall  not  be  compelled 
to  join  in  a  partition  of  the  surface  interests,  nor  shall  the  owner 
or  owners  of  the  surface  interests  be  compelled  to  join  in  a  partition 
of  the  mineral  interests,  nor  shall  the  rights  of  either  owner  be  preju- 
diced by  a  partition  of  the  other  interests. 

1905,  c.  90. 

2489,  Of  homestead,  at  instance  of  judgment  creditor.  When- 
ever any  person  owns  a  judgment  duly  docketed  in  the  superior  court 
of  a  county  wherein  the  judginent  debtor  owns  an  undivided  interest 
in  fee  in  land  as  a  tenant  in  common,  and  such  judgment  creditor 
may  desire  to  lay  oif  the  homestead  of  the  judgment  debtor  in  said 
land  and  sell  the  excess,  if  any,  to  satisfy  his  judgment,  said  judg- 
ment creditor  may  institute  before  the  clerk  of  the  court  of  the  county 
wherein  the  land  lies  a  special  proceeding  for  partition  of  said  land 
between  the  tenants  in  common,  making  the  judgment  debtor,  the 
other  tenants  in  common  and  all  other  interested  persons  parties  to 
said  proceeding  by  summons.  The  proceeding  shall  then  be  in  all 
other  respects  conducted  as  other  special  proceedings  for  the  parti- 
tion of  land  between  tenants  in  common.  Upon  the  actual  partition 
of  said  land  the  judgment  creditor  may  sue  out  execution  on  his  judg- 
ment, as  allowed  by  law,  and  have  the  homestead  of  the  judgment 
debtor  allotted  to  him  and  sell  the  excess,  as  in  other  cases  where  the 
homestead  is  allotted  under  execution.  The  remedy  provided  for  in 
this  section  shall  not  deprive  the  judgment  creditor  of  any  other 
remedy  in  law  or  in  eqiiity  Avhich  he  may  have  for  the  enforcement 
of  his  judgment  lien. 

1905,  "e.  429. 

2490.  Unknown  persons  interested,  representative  appointed. 

If,  Tipon  the  filing  of  a  petition  for  partition  it  be  made  to  appear  to 
the  co\irt  by  affidavit  or  otherwise  that  there  are  any  persons  in- 
terested in  the  premises  whose  names  are  unknown  to,  and  can  not 
after  due  diligence  be  ascertained  by  the  petitioner,  the  court  shall 
order  notices  to  be  given  to  all  such  persons  by  a  publication  of  the 
petition,  or  of  the  substance  thereof,  with  the  order  of  the  court 
thereon,  in  one  or  more  newspapers  to  be  designated  in  the  order. 
If  after  such  general  notice  by  publication  any  person  interested  in 
the  premises  and  entitled  to  notice  fails  to  appear,  the  coiirt  shall 
in  its  discretion  appoint  some  disinterested  person  to  represent  the 


2490  PAETITIOK— /.  Procedure.  Ch.   59 

o^vne^  of  any  shares  in  the  property  to  be  divided,  the  ownership 
oi  which  is  Tinknown  and  unrepresented. 
1887,  c.  284. 

2491.  How  commissioners  summoned;  their  duty.  The  commis- 
sioners, who  shall  bo  summoned  by  the  sheriff,  or  any  constable,  mnst 
meet  on  the  premises  and  partition  the  same  among  the  tenants  in 
common,  according  to  their  respective  rights  and  interests  therein, 
by  dividing  the  land  into  equal  shares  in  point  of  value  as  nearly  as 
possible,  and  for  this  purpose  they  are  empowered  to  subdivide  the 
more  valuable  tracts  as  they  may  deem  best,  and  to  charge  the  more 
valuable  dividends  with  such  sums  of  money  as  they  may  think 
necessary,  to  be  paid  to  the  dividends  of  inferior  value,  in  order 
to  make  an  equitable  partition.  If  there  be  any  of  the  tenants 
in  common  whose  names  are  not  knOwn  or  whose  title  is  in  dis- 
pute the  share  or  shares  of  such  persons  shall  be  set  off  together  as 
one  parcel. 

Code,  s.  1894;  1887,  c.  284,  s.  2;  1868-9,  e.  122,  s.  3. 

2492.  Oath  of  commissioners.  The  commissioners  shall  be  sworn 
by  a  justice  of  the  peace,  or  other  person  authorized  to  administer 
oaths,  to  do  justice  among  the  tenants  in  common,  in  respect  to  such 
partition,  according  to  their  best  skill  and  ability. 

Code,  s.  1893;  1868-9,  e.  122,  s.  2. 

2493.  Commissioners  may  employ  surveyor.  The  commission- 
ers are  authorized  to  employ  the  county  surveyor,  or  in  his  absence, 
or  if  he  be  connected  with  the  parties,  some  other  surveyor,  who  shall 
make  out  a  map  of  the  premises  showing  the  quantity,  courses  and 
distances  of  each  share,  which  map  shall  accompany  and  form  a  part, 
of  the  report  of  the  commissioners. 

Code,  s.  1895;  1868-9,  c.  122,  s.  4. 

2494.  Report;  contents;  impeached,  when.  The  commissioners, 

within  a  reasonable  time,  not  exceeding  sixty  days  after  the  notifi- 
cation of  their  appointment,  shall  make  a  full  and  ample  report  of 
their  proceedings,  under  the  hands  of  any  two  of  them,  specifying 
therein  the  manner  of  executing  their  trust  and  describing  particu- 
larly the  land  or  parcels  of  land  divided,  and  the  share  allotted  to  each 
tenant  in  severalty,  with  the  simi  or  sums  charged  on  the  moi'e  valu- 
able dividends  to  be  paid  to  those  of  inferior  value.  The  report 
shall  be  filed  in  the  office  of  the  superior  court  clerk,  and  if  no  excep- 
tion thereto  be  filed  \Vithin  twenty  days,  the  same  shall  be  confirmed : 
Provided,  that  any  party  after  confirmation  may  impeach  the  j)ro- 
(•eedings  and  decrees  for  mistake,  fraud  or  collusion  by  petition  in 


2494  PAETITION— /.  Procedure.  Ch.   59 

the  cause:  Provided  further,  that  innocent  purchasers  for  full  value 
and  without  notice  shall  not  be  affected  thereby. 

Code,  s.  1896;  1868-9,  c.  122,  s.  5. 

2495.  Confirmation;   effect;  where   registered.   Such  report, 

when  confirmed,  together  with  the  decree  of  confirmation,  shall  be 
enrolled  and  certified  to  the  register  of  deeds  and  registered  in  the 
office  of  the  county  where  such  real  estate  is  situated,  and  shall  be 
binding  among  and  between  the  claimants,  their  heirs  and  assigns. 
Code,  s.  1897;  1868-9,  c.  122,  s.  6. 

2496.  Owelty  bears  interest.  The  sums  of  money  due  from  the 
more  valuable  dividends  shall  bear  interest  until  paid. 

Code,  s.  1899;  1868-9,  c.  122,  s.  8. 

2497.  Owelty  charged  against  minors,  when  payable.  When  a 

minor  to  whom  a  more  valuable  dividend  shall  fall  is  charged  with 
the  payment  of  any  sum  the  money  shall  not  be  payable  until  such 
minor  arrives  at  the  age  of  twenty-one  years,  but  the  general  guard- 
ian, if  there  be  one,  must  pay  such  sum  whenever  assets  shall  come 
into  his  hands,  and  in  case  the  general  guardian  shall  have  assets 
which  he  did  not  so  apply,  he  shall  pay  out  of  his  own  proper  estate 
any  interest  that  may  have  accrued  in  consequence  of  such  failure. 
Code,  s.  1900;  1868-9,  c.  122,  s.  9. 

2498.  Delay  by  commissioner.  If,  after  accepting  the  trust,  any 
of  the  commissioners  unreasonably  delay  or  neglect  to  execute  the 
same,  every  such  delinquent  commissioner  shall  be  liable  for  con- 
tempt and  may  be  removed,  and  shall  be  further  liable  to  a  penalty 
of  fifty  dollars,  to  be  recovered  by  the  petitioner. 

Code,  s.  1901;  1868-9,  c.  122,  s.  10. 

II.     Lands  in  Two  States. 

2499.  Procedure.  Whenever  on  the  death  of  any  person,  his 
lands  in  this  state,  and  in  another  state,  shall  descend  or  be  devised 
to  several  persons,  who,  by  the  law  of  this  and  the  other  state, 
shall  hold  in  the  lands  undivided  estates  as  tenants  in  common,  or 
by  any  other  undivided  tenancy,  and  such  heirs  or  devisees  can  not, 
without  suit,  have  partition  for  want  of  consent,  or  because  of  ina- 
bility in  any  of  the  cotenants,  then,  if  such  deceased  person  shall 
have  been  at  the  time  of  his  death,  a  resident  of  the  state,  or  not 
then  a  resident  of  any  of  the  states,  in  which  his  lands  lie,  and 
in  the  last  ease  the  most  valuable  part  of  such  lands  shall  lie  in 
this  state,  such  heir  or  devisee,  or  any  person  claiming  under  him, 
may  file  a  petition  in  the  superior  court  for  the  county  where  the 


24iili  i'AKTlTiUX— //.  Lands  in  Two  ,S/a/w.  Cli.  o'J 

deceased  resided  at  his  <leatb,  or  where  any  part  of  the  hiiid  lies  in 
this  state,  setting  forth  all  the  lands  in  which  the  plaintitf  has  an  un- 
divided estate,  withont  and  within  the  state,  described  bv  their  names 
and  boundaries,  or  by  the  adjoining  tracts,  and  also  the  estate  the 
deceased  had  in  them,  and  the  supposed  value  of  the  lands  in  each 
state,  and  the  share,  in  severalty,  to  which  the  plaintiff  and  each 
of  his  coteuants  is  entitled  under  the  laws  of  the  several  states,  and 
praying  for  partition  to  be  made  of  all  the  tracts,  according  to  their 
respective  interests,  and  the  material  facts  set  forth  in  the  petition 
shall  be  verified  by  the  affidavit  of  the  plaintiff  or  his  gnardian,  or 
other  person,  at  the  discretion  of  the  court ;  and  all  persons  con- 
cerned in  interest  in  the  lands  shall  be  made  parties,  according  to 
the  practice  of  the  superior  court  in  this  state. 
Code,  s.  1911 :  1868-9,  c.  122,  s.  20. 

2500.  When  court  may  decree  partition.  On  the  hearing  of  the 

petition,  the  court  may  decree  a  partition ;  and  shall  allot  in  sever- 
alty to  each  tenant  his  just  share  of  the  lands,  according  to  the  value 
of  his  interest  in  the  same,  by  the  laws  of  the  several  states,  in  which 
they  are  situated. 

Code,  s.  1912;  1868-9,  c.  122,  s.  21. 

2501.  Commissioners  appointed,  when;  their  duty;  final  de- 
cree; deed  compelled;  effect  of  decree.  The  court  making  such 

decree  shall  issue  a  commission  to  three  respectable  freeholders  in 
this  or  any  state  where  any  part  of  the  land  may  lie,  unconnected 
by  blood  or  interest  with  the  parties,  directing  them  or  a  majority  of 
them,  to  make  partition  between  the  cotenants,  plaintiffs  and  defend- 
ants in  said  petition,  and  to  assign  each  his  respective  share  in  the 
value,  in  severalty,  in  any  tract  or  tracts,  in  any  or  all  the  states ; 
and  before  making  the  allotment  the  commissioners  shall  make  a 
valuation  of  all  the  lands  held  by  the  cotenants  in  all  the  said 
states;  and  where  they  can  not,  without  injury  to  the  value  of  some 
shares,  make  an  exact  division  of  the  lauds,  they  shall  charge  the 
moi'e  valuable  dividends  with  money  to  be  paid  to  the  tenants  of  a 
less  valuable  dividend  to  make  equality  of  partition,  and  they  shall 
report  their  proceedings  as  they  may  be  directed,  and  the  report  shall 
contain  a  valuation  of  all  the  estate  in  this  and  the  other  states,  and 
the  division  among  the  cotenants  according  to  such  valuation ;  and 
the  court  may  confirm  such  report,  or  on  sufficient  cause  shown,  may 
correct  and  alter,  or  set  it  aside  and  order  a  new  commission;  and 
where  any  sum  is  charged  upon  a  more  valuable  dividend,  the  court 
may  direct,  if  the  tenant  taking  such  a  dividend  be  an  infant,  that  the 
sum  charged  shall  not  be  paid  till  a  future  day,  and  the  same  shall 
bear  interest  at  a  rate  not  greater  than  allowed   in  this  state:  Pru- 

744 


2501  PARTITIOX— //.  Lands  !„  Two  Slates.  Ch.   59 

vided,  that  the  tenant  of  the  larger  dividend  may  discharge  himself 
from  accruing  interest  by  paying  the  whole  amount  due  at  any  time ; 
and  the  sum  due  from  the  greater  dividend  shall  be  a  charge  on  the 
land  into  whose  hands  soever  it  may  come,  although  it  may  be  taken 
without  notice ;  and  the  court  shall,  upon  the  confirmation  of  any 
report  of  the  commissioners,  make  a  final  decree.  And  where  all 
the  parties  are  within  the  jurisdiction  of  this  court,  the  court  shall, 
by  the  usual  proceedings,  direct  and  compel  the  parties  to  execute 
and  deliver  deeds  and  assurances,  sufficient,  by  the  laws  of  this 
state  and  the  other  states,  to  give  the  partition  full  force  and  validity 
in  all  the  states ;  and  in  case  any  of  the  parties  are  under  such  dis- 
abilities that  they  can  not  execute  such  assiirances,  or  are  without  the 
jurisdiction  of  the  court,  then  the  court,  upon  receiving  evidence 
from  the  plaintiff  that,  by  a  law  of  the  other  state  in  which  lie  the 
parts  of  the  lands  described  in  the  petition  to  be  without  this  state, 
the  decree  can  have  effect  thereon,  shall  direct  the  decree  to  be 
eni-olled,  and  a  copy  of  it  shall  be  registered  in  the  register's  office 
of  all  the  counties  within  this  state  where  any  of  the  lands  lie;  and 
a  copy  shall  also  be  furnished  to  the  plaintiff  or  other  party  inter- 
ested, duly  certified,  to  the  end  that,  as  to  the  lands  without  this 
state,  it  may  be  carried  into  effect  in  the  state  in  which  the  said  lands 
may  be,  in  such  manner  as  said  state  may  direct ;  and  on  satisfactory 
evidence  being  made  to  the  court  in  this  state  that  the  deci'ee  may 
have  full  effect  by  the  law  of  such  other  state,  the  court  in  this  state 
shall  by  its  decree  declare  the  partition  in  the  land  in  this  state  to 
be  final  and  conclusive ;  and  the  decree  shall  be  firm  and  irreversible, 
as  hereinafter  provided ;  and  shall,  on  registration  as  aforesaid,  pass 
to  the  tenants  the  title  in  severalty  to  the  lands  in  this  state  in  the 
same  manner  as  if  all  the  land  meutirmed  in  the  decree  were  situate 
within  this  state. 

Code,  s.  1913;   186S-9,  c.  122,  s.  22. 

2502.  When  decree  of  another  state  enforced.  Where  real  es- 
tate may  be  partly  in  this  state  and  partly  in  another  state,  and  the 
deceased  person  from  whom  it  was  derived  by  descent  or  devise, 
was,  at  the  time  of  his  death,  a  resident  of  some  other  state,  or  was 
a  resident  of  none  of  the  states  in  which  he  held  lands,  and  in  this 
last  case,  the  lauds  of  which  he  was  seized  in  this  state  were  of  less 
value  than  the  lands  of  which  he  was  seized  in  any  other  state,  the 
courts  of  the  state  in  which  such  deceased  person  had  his  residence 
at  his  death,  or  in  which  he  held  lands  of  greater  value  than  those 
he  held  in  this  state,  shall  have  full  power  and  authority,  under  any 
law  passed  by  the  legislatiire  of  such  state,  substantially  in  accord- 
ance with  the  provisions  herein  made  on  this  subject,  to  decree  parti- 
tion of  the  lands  in  this  state,  together  with  those  within  such  other 


2502  PAKTITION— 77.  Lands  iu  Two  States.  Ch.  59 

state,  in  the  same  manner  as  if  the  whole  real  estate  were  within 
the  jurisdiction  of  such  court,  and  in  the  same  manner  as  the  courts 
in  tliis  state  are  directed  and  authorized  to  do  by  the  preceding  sec- 
tion, as  to  the  lands  of  deceased  persons  resident  here  at  tlieir  death, 
or  leaving  lands  of  greater  value  here  than  in  any  other  state ;  and  in 
case  any  person  having  an  interest  in  the  final  decree,  made  as  afore- 
said in  another  state,  as  to  lands  in  this  state,  shall,  within  twelve 
months  after  the  same  may  be  entered  up  in  the  courts  of  said 
state,  prodiice  the  records  and  proceedings  of  such  courts  of  record 
duly  certified  to  a  superior  court  of  any  county  in  this  state,  where 
any  of  the  lands  of  this  state  lie,  the  court,  on  petition  ex  parte  in 
such  case,  shall  order  such  proceedings  to  be  entered  of  record  in  the 
court  of  this  state,  and  order  that  the  said  decree  sliall  be  of  the 
same  force  and  validity  as  if  it  had  been  a  decree  of  the  court  in 
this  state  in  which  the  jjetition  is  filed,  upon  a  petition  and  regular 
proceedings  had  thereon,  and  the  decree  of  the  court  of  such  other 
state,  and  the  proceedings  on  it  by  petition  in  the  superior  court  in 
this  state  confirming  it  and  giving  it  validity,  being  enrolled  in  the 
said  court  of  this  state  and  registered  in  all  the  counties  where  the 
lands  lie  in  this  state,  shall  pass  the  lands  in  this  state,  according  to 
the  decree,  and  shall  vest  estates  in  severalty  therein  declared,  as  to 
said  lands,  in  the  same  manner  and  with  the  same  effect  in  law  as 
if  the  lands  in  this  state  had  been  so  allotted  on  a  petition  for  parti- 
tion, according  to  the  provisions  of  the  former  sections  of  this  chapter. 
Code,  s.  1914;  1868-9,  c.  122,  s.  23. 

2503.  Decree  in  another  state,  how  validity  passed  on.  Where 

a  copy  of  a  decree  and  proceedings  of  a  suit  in  any  other  state  shall 
be  produced,  as  in  the  preceding  section,  and  also  when  it  is  neces- 
sary for  a  superior  court  to  be  certified  that  its  decree  of  a  partition 
of  lands  without  this  state  and  within  the  territory  of  another  state, 
can  have  effect  therein,  it  shall  be  competent  for  the  judge  of  the 
superior  court  before  which  the  existence  of  a  law  in  such  other 
state  is  to  be  proved,  to  decide  whether  any  act  of  the  legislature  of 
such  state  has  been  passed. 
Code,  a.  1915;  18G8-9,  c.  122,  s.  24. 

III.     Personal  Propekty. 

2504.  How  made.  When  any  persons  entitled  as  tenants  in  com- 
mon of  personal  property  desire  to  have  a  division  of  the  same, 
they,  or  either  of  them,  may  file  a  petition  in  the  superior  court  for 
that  purpose ;  and  the  court,  if  it  think  the  petitioners  entitled  to 
relief,  shall  appoint  three  disinterested  commissioners,  who,  being 
first  duly  sworn,  shall  proceed  within  twenty  days  after  notice  of 


2504  PAETITION— ///.  Personal  Property.  Ch.  59 

their  appointment,  to  divide  such  property  as  nearly  equal  as  possi- 
ble among  the  tenants  in  common. 
Code,  s.  1917;  1868-9,  c.  122,  a.  27. 

2505.  Commissioners  to  report;  exceptions;  confirmation.  The 

commissioners  shall  report  their  proceedings  under  the  hands  of  any 
two  of  them,  and  file  their  report  in  the  office  of  the  clerk  of  the 
superior  court  within  five  days  after  the  partition  was  made,  and 
if  no  exception  thereto  be  filed  within  twenty  days,  the  same  shall 
be  confirmed :  Provided,  that  any  party,  after  confirmation,  shall  be 
allowed  to  impeach  the  proceedings  and  decrees  for  mistake,  fraud 
or  collusion,  by  petition  in  the  cause:  Provided  further,  that  inno- 
cent purchasers  for  full  value  and  without  notice  shall  not  be  affected 
thereby. 

Code,  s.  1918;  1868-9,  c.  122,  s.  28. 


Note.     For  pay  of  commissioners,  see  Salaries  and  Fees,  ss.  2791-2793. 
IV.     Sale  of  Land. 

2506.  Part  sold  and  part  divided.  In  all  proceedings  under 
this  chapter  actual  partition  may  be  made  of  a  part  of  the  land  sought 
to  be  partitioned  and  a  sale  of  the  remainder,  or  a  part  only,  of  any 
land  held  by  tenants  in  common  may  be  partitioned  and  the  remain- 
der held  in  common. 

1887,  c.  214,  s.  1. 

2507.  Sale  of  mineral  interests.  In  case  of  the  partition  of  min- 
eral interests,  in  all  instances  where  it  shall  be  made  to  appear  to  the 
court  that  it  would  be  for  the  best  interests  of  the  tenants  in  common 
of  such  interests  to  have  the  same  sold,  or  if  actual  partition  of  the 
same  can  not  be  had  without  injury  to  some  or  all  of  such  tenants  in 
common,  then  it  shall  be  lawful  for  and  the  duty  of  the  court  to  order 
a  sale  of  such  mineral  interests  and  a  division  of  the  proceeds  as  the 
interests  of  the  parties  may  appear. 

1905,  e.  90,  s.  2. 

2508.  Expectancy  may  be  sold.  The  existence  of  a  life  estate 
in  any  land  shall  not  be  a  bar  to  a  sale  for  partition  of  the  remain- 
der or  reversion  thereof,  and  for  the  purposes  of  partition  the  ten- 
ants in  common  shall  be  deemed  seized  and  possessed  as  if  no  life 
estate  existed.  But  this  shall  not  interfere  with  the  possession  of 
the  life  tenant  during  the  existence  of  his  estate. 

1887,  c.  214,  s.  2. 


747 


■2509  PARTITIOX— 71".  Sale  of  Land.  Ch.   59 

2509.  Life  tenant  and  remainderman  may  sell;  life  estate 

valued,  in  all  iiroecedings  for  partition  <ti  land  whereon  there  is 
a  life  estate,  the  life  tenant  may  join  in  the  proceeding-  and  on  a 
sale  the  interest  on  the  valne  of  the  share  of  the  life  tenant  shall  be 
received  and  paid  to  such  life  tenant  annually ;  or  in  lieu  of  such 
annual  interest,  the  value  of  such  share  during  the  probable  life  of 
such  life  tenant  shall  be  ascertained  and  paid  out  of  the  proceeds 
to  such  life  tenant  absolutely. 

1887,  c.  214,  s.  3. 

Note.     See  also,  s.  2517. 

2510.  Timber  trees  may  be  sold;  life  tenant's  estate  valued. 

Whenever  two  or  more  persons  shall  own,  as  tenants  in  common, 
or  coparceners,  a  tract  of  land,  either  in  possession,  or  in  remain- 
der or  reversion,  subject  to  a  life  estate,  on  which  there  may 
be  standing  timber  trees,  a  sale  of  said  timber  trees,  separate  from 
the  land,  may  be  had  upon  the  petition  of  one  or  more  of  said  own- 
ers, or  the  life  tenant,  for  ]iartition  among  the  owners  thereof, 
including  the  life  tenant,  upon  such  terms  as  the  court  may  order, 
and  under  like  proceedings  as  are  now  prescribed  by  law  for  the 
sale  of  land  for  partition :  Provided,  that  when  the  land  is  subject 
to  a  life  estate,  the  life  tenant  shall  be  made  a  party  to  the  proceed- 
ings, and  shall  be  entitled  to  receive  his  portion  of  the  net  proceeds 
of  sales,  to  be  ascertained  under  the  mortuary  tables  established  by- 
lav?. 

1895,  c.  187. 

2511.  Disputed  ownership  of  one  share;  sale  ordered,  and 

ownership  reserved,  if  in  any  partition  proceeding  two  <:ir  more 
appear  as  defendants  claiming  the  same  share  of  the  ]iremises  to 
be  divided,  or  if  any  part  of  the  share  claimed  by  the  petitioner  is 
disputed  by  any  defendant  or  defendants,  it  shall  not  be  necessary 
to  decide  on  their  respective  claim.s  before  the  court  shall  order 
the  partition  or  sale  to  be  made,  but  the  partition  or  sale  shall  be 
made,  and  the  controversy  between  the  contesting  parties  ma,y  be 
afterwards  decided  either  in  the  same  or  an  independent  proceeding. 
1887,  c.  284,  3.  4. 

2512.  When  sale  ordered;  terms.  Whenever  it  appears  by  sat- 
isfactory proof  that  an  actual  partition  of  the  lands  can  not  be 
made  without  injury  to  some  or  all  of  the  ]iarties  interested,  the 
court  shall  order  a  sale  of  the  ]U'opertv  described  in  the  petition, 
or  any  part  thereof,  to  be  made  by  some  person  appointed  by  the 
court,  on  such  terms  as  to  size  of  lots,  place  or  manner  of  sale,  tim.e 
of  credit  and  security  for  payment  of  purchase  money,  as  may  be 
most  advantageous  to  the  parties  concerned,  and,  on  the  coming  in  of 


2512  PAETITIOX— /T'.  Sale  of  Land.  Ch.   59 

the  report  of  sale  and  contirniation  thereof,  and  payment  of  the  pur- 
chase money,  the  title  shall  be  made  to  the  purchaser  or  purchasers 
at  such  time  and  b}'  such  person  as  the  court  may  direct,  and  in  all 
cases  where  the  persons  in  possession  have  been  made  parties  to  the 
proceeding,  the  court  may  grant  an  order  for  possession.  And  the 
deed  of  the  officer  or  person  designated  to  make  such  sale  shall  con- 
vey' to  the  purchaser  such  title  and  estate  in  the  f)roperty  as  the  ten- 
ants in  common  had. 

Code,  ss.  1904,  1921;   18G8-9,  c.  122,  ss.  13,  31. 

2513.  Who  may  sell;  confirmation;  impeachment.    The  court 

may  authorize  any  officer  thereof,  or  any  other  comfietent  person,  to  be 
designated  in  the  decree  of  sale,  to  sell  the  real  estate  under  this 
proceeding;  but  no  clerk  of  any  co\irt  shall  appoint  himself  or  his 
deputy  to  make  sale  of  real  property  or  other  property  in  any  pro- 
ceeding before  him.  Such  officer  or  person  shall  file  his  report  of 
sale  giving  full  particulars  thereof,  within  ten  days  after  the  sale, 
in  the  office  of  the  clerk  of  the  superior  court,  and  if  no  exception 
thereto  is  filed  within  twenty  days,  the  same  shall  be  confirmed : 
Provided,  that  any  party,  after  the  confirmation,  shall  be  allowed 
to  impeach  the  proceedings  and  decrees  for  mistake,  fraud  or  collu- 
sion, b_y  petition  in  the  cause:  Provided  further,  that  innocent  pur- 
chasers for  full  value  and  Avithout  notice  shall  not  be  affected 
thereby. 

Code,  K.  1906;  1899,  c.  161;  1868-9,  c.  122,  s.  15. 

2514.  How  sale  advertised.  The  notice  of  sale,  imder  this  pro- 
ceeding, shall  be  the  same  as  required  by  law  on  sales  of  real  estate 
by  sheriff  under  execution. 

Code,  s.  1905;  1868-9,  c.  122,  s.  14. 

2515.  Confirmation  of  report  in  sale  for  division.  Upon  confir- 
mation of  the  report,  the  court  shall  secure  to  eacli  tenant  in  com- 
mon his  ratable  share  in  severalty  of  the  proceeds  of  sale. 

Code,  s.  1921;   1868-9,  c.  122,  s.  31. 

2516.  How  proceeds  of  sale  secured  to  infants,  etc.  When  a 

sale  is  made  imder  this  chapter,  and  any  party  to  the  proceedings 
be  an  infant,  a  married  woman,  non  compos  mentis,  imprisoned,  or 
beyond  the  limits  of  the  state,  or  when  the  name  of  any  tenant  in 
common  is  not  known,  it  shall  be  the  duty  of  the  court  to  decree 
the  share  of  such  party,  in  the  proceeds  of  sale,  to  be  so  invested 
or  settled  that  the  same  may  be  secured  to  such  party  or  his  real  rep-  ' 
resentative. 

Code,  s.  1908;  1887,  c.  284.  s.  3;  1868-9,  c.  122,  s.  1". 


k 


2517  PAETITION— /y.  Sale  of  Land.  Ch.  59 

2517.  Land  partitioned  or  sold  subject  to  dower;  dower  sold. 

When  there  is  dower  or  riglit  of  dower  on  any  hmd,  ]ietitioned  to 
be  sold  or  divided  in  severalty  by  actual  partition,  the  wonian  enti- 
tled to  dower  or  right  of  dower  therein  may  join  in  the  petition. 
The  land  to  be  divided  in  severalty  shall  be  allotted  to  the  tenants 
in  common,  subject  to  the  dower  right  or  dower,  and  either  may 
be  asked  and  assigned  at  the  same  time  that  partition  thereof  is 
made  and  by  same  commissioners.  On  a  decree  of  sale,  the  interest 
of  one-third  of  the  proceeds  shall  be  secured  and  paid  to  her  annu- 
ally; or  in  lieu  of  such  annual  interest,  the  value  of  an  annuity  of 
six  per  cent,  on  such  third,  during  her  probable  life,  shall  be  ascer- 
tained and  paid  to  her  absohitely  out  of  the  proceeds. 
Code,  s.  1909;  1893,  c.  341;  1868-9,  c.  122,  s.  18. 


Note.     See  also  s.  2508. 

V.     SalEj   Public   Use. 

2518.  Land  required  for  public  use,  how  sold.  When  the  lands 

of  joint  tenants  or  tenants  in  common  are  required  for  public  pur- 
poses, one  or  more  of  such  tenants,  or  their  guardian  for  them,  may 
file  a  petition  verified  by  oath,  in  the  superior  court  of  the  coimty 
where  the  lands,  or  any  part  of  them  lie,  setting  forth  therein  that 
the  lands  are  required  for  public  purposes,  and  that  their  inter- 
ests would  be  promoted  by  a  sale  thereof;  whereupon  the  court, 
all  proper  parties  being  before  it,  and  the  facts  alleged  in  the 
petition  being  ascertained  to  be  true,  shall  order  a  sale  of  such 
lands,  or  so  much  thereof  as  may  be  necessary,  in  the  manner  and 
on  the  terms  it  deems  expedient.  And  the  expenses,  fees  and  costs 
of  this  proceeding  shall  be  paid  in  the  discretion  of  the  court. 
Code,  s.  1907;  1868-9,  c.  122,  s.  16. 

Note.     See  ss.  1798,  1800,  2590. 

VI.     Sale  of  Personalty. 

2519.  When  ordered;  how  made.  If  a  division  of  personal  prop- 
erty owned  by  any  persons  as  tenants  in  common  can  not  be  had 
without  injury  to  some  of  the  parties  interested,  and  a  sale  thereof 
be  deemed  necessary,  the  court  shall  order  a  sale  to  be  made  by 
some  officer  of  the  court  or  other  competent  person,  who  t>hall  file 
his  report  of  sale  in  the  office  of  the  clerk  of  the  court  within  ten 
days  after  sale,  and  if  no  exception  thereto  be  filed  within  twenty 
days,  the  same  shall  be  confirmed:  Provided,  that  any  party,  after 
confirmation,    shall    be    allowed    to    impeach    the    proceedings    and 


2.-,  19  PAETITION— 77.  Sale  of  Personalty.  Ch.   59 

decrees  for  mistake,  fraud  or  collusion,  by  petition  in  the  cause : 
Provided  further,  that  innocent  purchasers  for  full  value  and  with- 
out notice  shall  not  be  affected  thereby. 
Code,  s.  1919;  1868-9,  c.  122,  s.  29. 

2520.    How  sale  advertised;  terms.   The  sale  shall  be  made 

after  twenty  days'  notice,  by  advertisement  in  three  or  more  public 
places  in  the  county,  and  shall  be  on  such  terms  as  the  court  may 
direct. 

Code,  s.  1920;  1868-9,  e.  122,  s.  30. 


Note.     For  compensation  of  commissioners  under  this  chapter,  see  s.  2791-2793. 


CHAPTEE  60. 
PARTNERSHIP. 


Sections. 

I.     Limited  partnership,  2521—2539 

II.     Surviving  partners,  2540 — 2547 

I.     Limited  Partnership. 

2521.  For  what  purposes  formed.  Limited  partnerships  for  the 
transaction  of  any  mercantile,  manufacturing  or  mechanical  busi- 
ness within  the  state  may  be  formed  by  two  or  more  persons,  upon 
the  terms  and  with  the  rights  and  powers  and  subject  to  the  condi- 
tions and  liabilities  in  this  chapter;  but  its  provisions  shall  not  be 
construed  to  authorize  any  such  partnership  for  the  conducting  of 
a  banking  or  insurance  business,  other  than  writing  or  soliciting 
insurance. 

Code.  s.  3088;  1860-1,  c.  28. 

2522.  General  and  special  partners  joined;  liability  of  special. 

Such  partnerships  may  consist  of  one  or  more  persons,  who  are 
general  partners,  and  are  jointly  and  severally  responsible  as  part- 
ners are  now  by  law,  and  of  one  or  more  persons,  who  contribute 
in  actual  cash  payments  a  specific  sum  as  capital  to  the  common 
stock,  who  are  called  special  partners,  and  who  are  not  liable  for 
the  debts  of  the  partnership  beyond  the  fimds  so  contributed  to  the 
capital. 

Code,  s.  3089;  1860-1,  c.  28,  s.  2. 


252:1  PARTXEESIITP— 7.   Liwilcil  Pnihirrsliij,.  Ch.  CO 

2523.  Must  make  certificate;  what  to  contain.   The  persons 

desirous  of  forming  such  ]iartiierslii|i  must  make  and  severally  sign 
a  certificate  containing:  First,  tbe  name  or  firm  under  which  such 
partnership  is  to  be  conducted ;  second,  the  general  nature  of  the 
business  to  be  transacted;  third,  the  names  of  all  the  general  and 
special  partners  interested  thei'ein,  distinguishing  which  are  gen- 
eral and  which  are  special  partners,  and  their  respective  places  of 
residence;  fourth,  the  amoiint  of  capital  which  each  special  partner 
has  contributed  to  the  common  stock ;  fifth,  the  period  at  which  such 
partnership  is  to  commence  and  terminate. 
Code,  s.  3090;  1860-1,  c.  28,  s.  3. 

2524.  Registration  of  certificate.  The  certificate  must  be  ac- 
knowledged or  jjroved  before  some  one  competent  to  take  the  probate 
of  deeds  and  ordered  registered  in  the  same  manner  as  provided 
for  deeds,  and  must  be  registered  in  the  county  in  which  the  princi- 
pal place  of  business  of  such  partnership  is  situated.  If  the  part- 
nership has  places  of  business  in  difterent  counties,  a  transcript  of 
the  certificate  and  acknoAvledgment  certified  by  the  register  must 
be  registered  and  filed  in  the  register's  oflice  of  each  of  such  coun- 
ties. 

Code,  ss.  3091,  3092;  1860-1,  c.  28,  ss.  4,  5. 

2525.  Affidavit  of  payment  of  casil.  At  the  time  the  certifi- 
cate is  ordered  to  be  registered  an  affidavit  of  one  or  more  of  the 
general  partners  shall  be  made  before  the  officer  taking  such  ac- 
knowledgment, stating  that  the  sums  specified  in  the  certificate  to 
have  been  contributed  by  each  of  the  special  partners  to  the  com- 
mon stock  have  been  actually  in  good  faith  paid  in  cash,  and  the 
said  affidavit  so  made  shall  be  registered  witli  the  original  certificate. 

Code,  s.  3093;  1860-1,  c.  28,  s.  6. 

2526.  Registration  essential.  Xo  such  partnership  shall  be 
deemed  to  have  been  formed  until  such  certificate  and  affidavit  have 
been  made,  acknowledged  or  proven  and  registered  as  required  in 
the  preceding  sections. 

Code,  s.  3094;  18601,  c.  28,  s.  T. 

2527.  False  statement,  all  general  partners.  If  any  false  state- 
ment is  made  in  such  certificate  or  affidavit,  all  the  persons  inter- 
ested in  such  ])artners]iip  sliall  be  liable  as  general  partners. 

Code,  s.  3095;  1860-1,  e.  28,  s.  8. 

2528.  Publication  of  terms  of.  The  terms  of  the  partnership 
must  be  published  iuuiiediatcly  after  its  formation  for  six  successive 
weeks,  in  at  least  mic   n('\vs])aper   in   the  same  c<nuity  or  near  the 


2528  PAETXERSHIP— 7.  Limited.       .  Ch.  60 

place  of  said  partnership  business,  and  if  sucli   j^djlication  be  not 
made,  the  partnership  shall  be  deemed  general. 
Code,  s.  3096;  1860-1,  c.  28,  s.  9. 

2529.  Affidavits  of  publication  filed.  Affidavits  of  such  publica- 
tion, made  by  tlie  jiroprietor  of  such  newspaper  in  which  the  same 
is  published,  may  be  filed  with  the  clerk  of  the  superior  court  of 
the  county  in  which  sTich  business  is  conducted,  and  shall  be  evi- 
dence of  the  fact. 

Code,  s.  3097;  1860-1,  c.  28,  s.  10. 

2530.  Renewals  and  continuances.  Every  renewal  or  continu- 
ance of  such  partnership  beyond  tlie  time  originally  fixed  for  its 
duration  must  be  certified,  acknowledged  and  registered,  and  an  affi- 
davit of  a  general  partner  made  and  filed,  and  notice  given  by  pub- 
lication as  required  for  its  original  formation,  and  every  such  part- 
nership which  is  otherwise  continued  must  be  deemed  a  general  part- 
nership :  Provided,  the  affidavit  herein  required  may  state  that  the 
amount  of  cash  therein  specified  had  been  orginally  paid  in  good 
faith,  and  that  it  is  represented  by  goods  or  merchandise  then  on 
hand,  and  has  not  been  impaired  in  the  course  of  trade. 

Code,  s.  3098;  1860-1,  e.  28,  s.  11. 

2531.  Alteration  in  names,  etc.,  a  dissolution.  Every  alteration 

which  is  made  in  the  names  of  the  ]3artners,  in  the  nature  of  the 
business,  in  the  capital  or  shares  thereof  or  in  any  other  matter  speci- 
fied in  the  original  certificate  must  be  deemed  a  dissolution  of  the 
partnership;  and  any  such  partnership  which  is  in  any  manner 
carried  on  after  such  alteration  has  been  made  must  be  deemed  a 
general  partnership,  unless  renewed  as  a  special  partnership,  accord- 
ing to  the  preceding  sections. 

Code,  s.  3099;  1860-1,  c.  28,  s.  12. 

2532.  Name  of  firm.  The  business  of  the  partnership  must  be 
conducted  under  a  firm,  in  which  the  names  of  the  general  partners 
only  are  inserted,  without  the  addition  of  the  word  "company"  or 
any  other  general  term,  except  the  word  "limited" ;  and  if  the  name 
of  any  special  partner  is  used  in  the  firm  with  his  privity,  he  shall 
be  deemed  a  general  partner. 

Code,  s.  3100;  1899,  c.  75;  1860-1,  e.  28,  s.  13. 

2533.  Actions  as  in  general  partnership.  Suits  in  relation  to 

the  business  of  the  partnership  may  be  brought  and  conducted  by 
and  against  the  general  partner  in  the  same  manner  as  if  there 
was  no  special  partner. 

Code,  s.  3101;  1860-1,  c.  28,  s.  14. 

Eev.  Vol.  1—44  753 


2534  PARTNEESHIP— 7.  Limited.  Ch.  60 

2534.  Special  stock  not  withdrawn.  No  part  of  the  sum  which 

iiny  special  partner  has  contributed  to  the  capital  stock  must  be 
withdrawn  by  or  paid  to  him  in  the  shape  of  dividends,  profits  or 
otherwise,  at  any  time  during  the  continuance  of  the  partnership; 
•but  any  partner  may  annually  receive  lawful  interest  on  the  sum 
so  contributed  by  him,  if  the  payment  of  such  interest  does  not 
reduce  the  original  amount  of  such  capital ;  and  if,  after  the  pay- 
ment of  such  interest,  any  profits  remain  to  be  divided,  he  mav 
receive  his  portion  of  such  profits. 
Code,  s.  3102;  18G0-1,  c.  28,  s.  15. 

2535.  Depleted  capital  made  good,  when.  If  it  appears  by  the 

paj'ment  of  interest  or  profits  to  any  special  partner  that  the  original 
capital  has  been  reduced,  the  partner  receiving  the  same  is  bound 
to  restore  the  amount  necessary  to  make  good  his  share  of  the  capi- 
tal without  interest. 

Code,  s.  3103;  1860-1,  c.  28,  s.  16. 

2536.  Rights  of  special  partner.  A  special  partner  may  from 
time  to  time  examine  into  the  state  and  progress  of  the  partnership 
concern ;  may  advise  as  to  its  management  and  act  as  attorney' 
at  law,  but  must  not  transact  any  other  of  the  partnership  business, 
nor  be  employed  for  that  purpose  as  agent  or  otherwise;  and  if  he 
interfere  contrary  to  this  section  he  is  deemed  a  general  partner. 

Code,  s.  3104;  1860-1,  c.  28,  s.  17. 

2537.  Accounting   inter   Se.  The  general  partners  are  liable  to 

account  to  each  other,  and  to  the  special  partners  for  their  man- 
agement of  the  partnership,  as  other  partners. 

Code.  s.  3105;  1860-1,  c.  28,  a.  18. 

2538.  Effect  of  Insolvency.  In  case  of  the  bankruptcy  or  insolv- 
ency of  the  partnership,  no  special  partner,  under  any  circum- 
stances, is  to  be  allowed  to  claim  as  a  creditor  until  the  claims 
of  all  the  other  creditors  of  the  partnersliip  are  satisfied. 

Code,  s.  3107;  1860-1,  c.  28,  s.  20. 

2539.  Dissolution.  Xo  dissolution  of  such  partnership  by  the 
acts  of  the  parties  must  take  ])lace  before  the  time  s]iecified  in  the 
certificate  of  its  formation,  or  in  the  certificate  of  its  renewal,  until 
a  notice  of  its  dissolution  has  been  registered  in  the  register's  office 
in  which  the  original  certificate  was  registered,  and  published  once 
a  week  for  four  successive  weeks  in  the  nearest  newspaper  to  each 
of  the  places  where  the  partner.ship  transacts  its  business. 

Code,  s.  3108;  1800-1,  c.  28,  s.  21. 

Note.     For  imi>ropcrly  doing  business  under  partnership  name,  see  9.  2118. 


2540  PARTNERSHIP— 77.  Surviving  Partners.  Ch.   60 

II.     Surviving  Partners. 

2540.  Inventory  by,  in  sixty  days;  copy  to  personal  represent- 
ative. When  a  iiicinber  iif  any  ])artnerslii]i  ilies  tlie  surviving  ])art- 
ner,  within  sixty  days  after  the  death  of  the  deceased  partner, 
together  with  the  personal  representati\'e  of  the  deceased  partner, 
shall  make  out  a  full  and  complete  inventory  of  the  assets  of  the 
partnership,  including  real  estate,  if  there  be  any,  together  with  a 
schedule  of  the  debts  and  liabilities  thereof,  a  copy  of  which  inven- 
tory and  schedide  shall  be  retained  by  the  surviving  partner,  and  a 
copy  thereof  shall  be  furnished  to  the  personal  representative  of 
the  deceased  partner. 


2541.  On  refusal  of,  personal  representative  may  take  inven- 
tory; receiver  appointed,  when.  If  the  surviving  partner  neg- 
lect or  refuse  t^i  have  said  in\-entory  made,  the  personal  represent- 
ative of  the  deceased  partner  may  have  the  same  made  in  accord- 
ance with  the  i^rovisions  of  the  preceding  section.  Should  any 
surviving  partner  fail  to  take  such  an  inventory  or  refuse  to  allow 
the  personal  representative  of  the  deceased  partner's  estate  to  do  so, 
such  personal  representative  of  the  deceased  partner's  estate  may 
forthwith  apply  to  a  court  of  competent  jurisdiction  for  the  appoint- 
ment of  a  receiver  for  said  partnership,  who  shall  thereupon  pro- 
ceed to  win<l  up  the  same  and  dispose  of  the  assets  thereof  in  accord- 
ance with  law. 

1901,  c.  640,  s.  2. 

2542.  Notice  to  creditors.  Every  surviving  partner  within 
thirty  days  after  the  death  of  the  deceased  j^artner,  shall  notify 
all  persons  having  claims  against  the  partnership  which  were  in 
existence  at  the  time  of  the  death  of  the  deceased  partner,  to  exhibit 
tlie  same  to  the  surviving  partner  within  twelve  months  from  date  of 
first  publication  of  said  notice.  The  notice  shall  be  published  once 
a  week  for  four  weeks  in  a  newspaper  (if  there  be  any)  published 
in  the  county  where  the  partnership  existed.  If  there  should  be 
no  newspaper  published  in  the  county,  then  the  said  notice  shall 
be  posted  at  the  courthouse  and  four  other  pidilic  places  in  the 
county. 

1901,  c.  640,  s.  3. 

2543.  Debts  without  lien  paid  pro  rata.  AH  debts  and  demands 

against  a  copartnership,  where  one  partner  has  died,  shall  be  paid 
pro  rata,  except  debts  which  are  a  specific  lien  on  property  belong- 
ing to  the  partnership. 
1901,  e.  640,  s.  4. 

755 


2544  PARTNEESHIP— //.  Surviving  Partners.  Ch.  60 

2544.  Action  on  claim  not  presented  in  twelve  months,  in  an 

action  brought  on  a  claim  whicli  was  not  presented  within  twelve 
months  from  the  tirst  publication  of  the  general  notice  to  creditors, 
the  surviving  partner  shall  not  be  chargeable  for  any  assets  that  he 
may  have  paid  in  satisfaction  of  any  debts  before  such  action  was 
commenced,  nor  shall  any  costs  be  recovered  in  such  action  against 
the  surviving  partner. 
19C'l,  c.  640,  s.  5. 

2545.  Appraisal  for  purchase  by  surviving  partner;  when  he 
can  not  purchase;  approval  of  clerk.  The  suiviviun  partner  may, 

if  he  so  desire,  make  application  to  the  clerk  of  the  superior  court  of 
the  county  in  which  the  partnership  existed,  after  first  giving  notice 
to  the  executor  or  administrator  of  the  time  of  the  hearing  of  such 
application,  for  the  appointment  of  three  judicious,  disinterested 
ajDpraisers,  one  of  whom  may  be  named  by  the  surviving  partner, 
one  by  the  representative  of  the  deceased  partner's  estate,  and  the 
third  named  by  the  two  appraisers  selected,  whose  duty  it  shall  be  to 
make  out,  under  oath,  a  full  and  complete  inventory  and  appraise- 
ment of  the  entire  assets  of  the  partnership,  including  real  estate, 
if  there  be  any,  together  with  a  schedule  of  the  debts  and  liabilities 
thereof,  and  to  deliver  the  same  to  the  surviving  partner,  and  shall 
also  deliver  a  copy  to  the  executor  or  administrator.  The  surviving 
partner  may,  with  the  consent  of  the  executor  or  administrator  of 
the  deceased  partner  and  the  approval  of  the  clerk  of  the  superior 
court  by  whom  such  executor  or  administrator  was  appointed,  pur- 
chase the  interest  of  said  deceased  partner  in  the  partnership  assets 
at  the  appraised  value  thereof,  including  the  good  will  of  the  busi- 
ness, first  deducting  therefrom  the  debts  and  liabilities  of  the  part- 
nership, for  cash  or  upon  giving  to  the  executor  or  administrator  his 
promissory  note  or  notes,  with  good  approved  security,  and  satisfac- 
tory to  the  executor  or  administrator,  for  the  payment  of  the  inter- 
est of  such  deceased  partner  in  the  partnership  assets.  In  case  such 
surviving  partner  shall  avail  himself  of  the  privileges  of  purchas- 
ing said  interest  as  provided  for  in  this  section,  he  shall  give  bond  to 
said  executor  or  administrator  with  surety  for  the  payment  of  the 
debts  and  liabilities  of  said  partnership,  and  for  )ierformauce  of 
all  contracts  for  which  said  partnership  is  liable:  Provided,  that 
when  the  original  articles  of  copartnership  in  force  at  the  death  of 
any  partner  or  the  will  of  a  deceased  partner  makes  the  provisions 
for  the  settlement  of  such  deceased  partner's  interest  in  said  partner- 
ship, and  for  a  disposition  thereof  different  froiu  tliat  provided  for 
in  this  chapter,  the  interest  of  such  deceased  partner  in  such  partner- 
ship shall  be  settled  and  disposed  of  in  accordance  with  the  ]irovisions 
of  such  articles  of  copartnership  or  of  said  will.     Tn  case  of  such 


2545  PAETNERSHIP— 7/.  Surviving  Partners.  Ch.   60 

sale  of  the  real  estate  belonging  to  the  partnership,  the  title  to  such 
real  estate  so  purchased  shall  not  pass  until  said  sale  of  real  estate 
is  reported  to  and  confirmed  by  the  clerk  of  the  superior  court  in 
the  county  in  which  said  partnership  was  located,  in  a  sjDecial  j^ro- 
ceeding  in  which  the  widow,  heirs  at  law  or  devisees  of  such  deceased 
partner  are  duly  made  parties. 
1901,  c.  640,  s.  G. 

2546.  Accounting  in  twelve  months;  time  extended;  commis- 
sions. In  case  the  surviving  partner  shall  not  avail  himself  of  the 
privilege  of  purchasing  the  interest  of  the  deceased  partner,  he  shall, 
within  tweh^e  months  from  the  death  of  the  deceased  partner,  file 
with  the  clerk  of  the  sujDerior  court  of  the  county  where  the  partner- 
ship was  located,  an  account,  under  oath,  stating  his  action  as  siir- 
viving  partner  and  shall  come  to  a  settlement  with  the  execiitor  or 
administrator  of  the  deceased  partner:  Provided,  that  the  clerk  of 
the  superior  court  shall  have  power,  upim  good  cause  shown,  to 
extend  the  time  within  which  said  final  settlement  shall  be  made. 
The  surviving  partner  for  his  services  in  settling  the  partnership 
estate  shall  receive  commissions  to  b3  allowed  by  the  court,  and  in 
no  case  to  exceed  five  per  cent,  out  of  the  shave  of  the  deceased 
partner. 

1901,  c.  640,  s.  7. 

2547.  Accounting  compelled.  In  case  any  surviving  partner  fail 
to  come  to  a  .settlement  with  the  executor  or  administrator  of  the 
deceased  partner  within  the  time  prescribed  by  law,  the  clerk  of  the 
superior  court  may,  at  the  instance  of  such  executor,  administrator 
or  other  person  interested  in  such  deceased  partnership  estate,  cite 
the  s\irviving  partners  to  a  final  settlement  as  provided  for  by  law 
in  the  case  of  executors  and  administrators. 

1901,  c.  640,  s,  8. 


2548 


EAILROADS— 7.  Creation. 


Ch.  61 


CHAPTER  61. 


RAILROADS. 

Sections. 

I. 

Creation, 

2548—25.57 

II. 

Municipal  subscriptions, 

2558—2562 

III. 

Charter  forfeited, 

2563—2565 

IV. 

Corporate  powers, 

2566—2574 

V. 

Eminent  domain, 

2575—2598 

VI. 

Construction, 

2599—260.3 

VII. 

Servants  and  police, 

2604—2610 

VIII. 

Operation  of  trains. 

2611—2617 

IX. 

Passengers, 

2618—2629 

X. 

Freight, 

2630—2641 

XI. 

Overcharges, 

2642—2644 

XII. 

Miscellaneous, 

I.     Cre.\tion. 

2645-2048 

2548.  How  chartered;  number  of  incorporators;  name,  and 
route  of  company  stated;  amount  of  capital  stock;  where  filed. 

Any  number  of  persons,  not  loss  than  six,  may  form  a  company 
for  the  purpose  of  constructing,  maintaining  and  operating  a  rail- 
road for  public  use  in  the  conveyance  of  persons  and  property,  or 
for  the  purpose  of  maintaining  and  operating  any  unincorporated 
railroad  already  constructed  for  the  like  public  use ;  and  for  that 
purpose  may  make  and  sign  articles  of  association,  in  which  shall  be 
stated  the  name  of  the  company,  the  number  of  years  the  same  is  to 
continue,  the  places  from  and  to  which  the  road  is  to  be  constructed 
or  maintained  and  operated,  the  length  of  such  road  as  near  as  may 
be,  and  the  name  of  each  county  in  this  state  through  or  into  which 
it  is  made  or  intended  to  be  made,  the  amount  of  the  cajiital  stock 
of  the  company,  which  shall  not  be  less  than  five  thousand  dollars 
for  every  mile  of  road  constructed  or  proposed  to  be  constructed,  and 
the  number  of  shares  of  which  said  capital  stock  shall  consist,  and 
the  names  and  places  of  residence  of  si.x  directors  of  the  company, 
who  shall  manage  its  affairs  for  the  first  year,  or  until  others  are 
chosen  in  their  places.  Each  subscriber  to  such  articles  of  associa- 
tion shall  subscribe  thereto  his  name,  place  of  residence,  and  the 
number  of  shares  of  stock  he  agrees  to  take  in  said  company.  On 
compliance  with  the  provisions  of  the  succeeding  section,  .such  arti- 
cles of  association  may  be  filed  in  the  office  of  the  secretary  of  state, 
who  shall  indorse  thereon  the  day  they  are  filed,  and  record  the  same 
in  a  book  to  be  provided  by  him  for  that  p\irpose;  and  thereupon 


2548  EAILEOADS— 7.   Creation.  Ch.   61 

tlie  i^ersons  who  have  so  subscribed  such  articles  of  association,  and 
all  persons  who  shall  become  stockholders  in  such  company,  shall  be 
a  corporation  by  the  name  specified  in  such  articles  of  association, 
and  shall  possess  the  powers  and  privileges  granted  to  corporations 
by  this  chapter. 

Code,  s.  1932;  1871-2,  c.  138;  1905,  e.  187. 

2549.  Stock  subscribed  before  articles  filed;  affidavit  of  direc- 
tors; organization  fee  paid  secretary  of  state.  Such  articles  of 

association  shall  not  be  filed  and  recorded  in  the  office  of  the  secre- 
tary of  state  until  at  least  one  thousand  dollars  of  stock  for  every 
mile  of  railroad  proposed  to  be  made  is  subscribed  thereto,  and  five 
per  cent,  paid  thereon  in  good  faith,  and  in  cash,  to  the  directors 
named  in  said  articles  of  association ;  nor  until  there  is  indorsed 
thereon  or  annexed  thereto  an  affidavit  made  by  at  least  three  of  the 
directors  named  in  said  articles,  that  the  amount  of  stock  required 
by  this  section  has  been  in  good  faitli  subscribed  and  five  per  cent, 
paid  in  cash  thereon  as  aforesaid,  and  that  it  is  intended  in  good 
faith  to  construct  or  to  maintain  and  operate  the  road  mentioned  in 
such  articles  of  association,  which  affidavit  shall  be  recorded  with  the 
articles  of  association,  as  aforesaid ;  nor  until  said  directors  shall  pay 
the  taxes  and  fees  provided  for  in  section  one  thousand  two  hundred 
and  thirty-three  and  one  thousand  two  hundred  and  thirty-four. 
Code,  s.  1933;  1871-2,  c.  138,  s.  2;  1905,  c.  168. 

2550.  Copy  of  articles  filed  and  recorded  presumptive  evidence 

of  incorporation.  A  copy  of  any  articles  of  association  filed  and 
recorded  in  pursuance  of  this  chapter  and  of  the  record  thereof,  with 
a  copy  of  the  affidavit  aforesaid  indorsed  thereon  or  annexed  thereto, 
and  certified  to  be  a  copy  by  the  secretary  of  state,  shall  be  presump- 
tive evidence  of  the  incorjDoration  of  such  company,  and  of  the  facts 
therein  stated. 

Code,  s.  1934;  1871-2,  c.  138,  s.  3. 

2551.  When  and  how  subscription  books  opened.  When  such 

articles  of  association  and  affidavit  are  filed  and  recorded  in  the 
office  of  the  secretary  of  state,  the  directors  named  in  said  articles 
of  association  may,  in  case  the  whole  of  the  capital  stock  is  not 
before  subscribed,  open  books  of  subscription  to  fill  up  the  capital 
stock  of  the  company  in  such  places  and  after  giving  such  notice  as 
they  may  deem  expedient,  and  may  continue  to  receive  subscri]-)tions 
until  the  whole  of  the  capital  stock  is  subscribed. 

Code,  s.  1935;  1871-2,  c.  138,  s.  4. 

2552.  Number  of  directors;  term  of  office;  vote  by  shares; 
qualification  of  officers;  how  purchaser  of  railroad  to  become 


2552  EAILEOADS— /.   Creation.  Ch.   Gl 

incorporated.  There  shall  bo  a  board  of  six  directors,  one  of  whom 
sliall  be  elected  president,  of  every  corporation  formed  nnder  this 
chapter  to  manage  its  affairs.  The  directors  shall  be  chosen  annually 
by  a  majority  of  the  votes  of  the  stockholders  voting  at  such  election, 
in  snch  manner  as  may  be  prescribed  in  the  by-laws  of  the  corpora- 
tion, and  they  may  and  shall  continiie  in  office  imtil  others  are 
elected  in  their  places.  In  the  election  of  directors  each  stock- 
holder shall  be  entitled  to  one  vote  personally  or  by  proxy  on 
every  share  lield  by  him  thirty  days  previons  to  any  such  election, 
■  and  vacancies  in  the  board  of  directors  shall  be  filled  in  such  man- 
ner as  shall  be  prescribed  by  the  by-laws  of  the  corporation.  The 
inspectors  of  the  first  election  of  directors  shall  be  appointed  by  the 
board  of  directors  named  in  the  articles  of  association.  Iso  person 
shall  be  a  director  or  president  unless  he  shall  be  a  stockholder  own- 
ing stock  absolutely  in  his  own  right  and  qualified  to  vote  for  direc- 
tors at  the  election  at  which  he  shall  be  chosen ;  and  at  every  election 
of  directors  the  books  and  papers  of  such  company  shall  be  exhibited 
to  the  meeting,  if  a  majority  of  the  stockholders  present  shall  require 
it.  And  whenever  the  purchaser  or  purchasers  of  real  estate,  track 
and  fixtures  of  any  railroad  corporation  which  has  heretofore  been 
sold  or  may  be  hereafter  sold  by  virtue  of  any  mortgage  executed  by 
such  corporation  or  execution  issued  upon  any  judgment  or  decree 
of  any  court  shall  acquire  title  to  the  same  in  the  manner  prescribed 
by  law,  such  purchaser  or  purchasers  may  associate  with  him  and 
them  any  number  of  persons,  and  make  and  acknowledge  and  file 
articles  of  association  as  prescribed  in  this  chapter;  such  purchaser 
or  purchasers  and  their  associates  shall  thereupon  be  a  new  corpora- 
tion with  all  the  powers,  privileges  and  franchises,  and  be  subject 
to  all  the  provisions  of  this  chapter. 
Code,  s.  193G;  1871-2,  c.  138,  s.  5. 

2553.  What  officers  and  agents  president  and  directors  may 

appoint.  The  president  and  direct<n-s  shall  appoint  a  treasurer  and 
secretary  and  such  other  officers  and  agents  as  shall  be  prescribed  bj' 
the  by-laws. 

Code,  s.  1937;  1871-2,  c.  138,  s.  6. 

2554.  Stocl<  may  be  paid  for  by  instalments;  nonpayment  for- 
feits. The  directors  niay  reqiiirc  the  subspribcrs  to  the  capital  stock 
of  the  company  to  ])ay  the  amount  by  them  respectively  subscribed 
in  such  manner  and  in  such  instalments  as  they  may  deem  proper. 
If  any  stockholder  shall  neglect  to  pay  any  instalment  as  required 
by  a  resolution  of  the  board  of  directors,  the  said  board  shall  be 
authorized  to  declare  his  stock  and  all  previous  pa,ymcnts  thereon 
forfeited  for  the  use  of  the  company,  but  they  .shall  not  declare  it  so 


2554  RAILKOADS— 7.   Creation.  Ch.   CI 

forfeited  until  they  shall  have  caused  a  notice  in  writing  to  be  served 
on  him  personally,  or  by  depositing  the  same  in  the  postoffice,  prop- 
erly directed  to  him  at  the  postoffice  nearest  his  usual  place  of  resi- 
dence, stating  that  he  is  required  to  make  such  payment  at  the  time 
and  place  specified  in  such  notice,  and  that  if  he  fails  to  make  the 
same,  his  stock  and  all  previous  payments  thereon  will  be  forfeited 
for  the  iise  of  the  company,  which  notice  shall  be  served  as  aforesaid 
at  least  sixty  days  previous  to  the  day  on  which  payment  is  required 
to  be  made. 

Code,  s.  1938,  1871-2,  c.  138,  s.  7. 

2555.  Capital  stock,  when  and  how  increased.  In  case  the  capi- 
tal stock  of  any  railroad  company  is  found  to  be  insufficient  for  con- 
structing and  operating  its  road,  such  company  may,  with  the  con- 
currence of  two-thirds  in  amount  of  all  its  stockholders,  increase  its 
capital  stock  from  time  to  time  to  any  amount  required  for  the  pur- 
poses aforesaid.  Such  increase  must  be  sanctioned  by  a  vote  in  per- 
son or  by  proxy  of  two-thirds  in  amount  of  all  the  stockholders  of 
the  company,  at  a  meeting  of  such  stockholders  called  by  the  direc- 
tors of  the  company  for  that  purpose,  by  a  notice  in  writing  to 
each  stockholder,  to  be  served  on  him  personally  or  by  depositing 
the  same,  properly  folded  and  directed  to  him,  at  the  postoffice 
nearest  his  usual  place  of  I'esidence,  in  the  postoffice  at  least  twenty 
days  prior  to  such  meeting.  Such  notice  must  state  the  time  and 
place  of  the  meeting  and  its  object  and  the  amount  to  which  it 
is  proposed  to  increase  the  capital  stock.  The  proceedings  of 
such  meeting  must  be  entered  on  tlie  minutes  of  the  proceedings 
of  the  company,  and  thereupon  the  capital  stock  of  the  company  may 
be  increased  to  the  amount  sanctioned  by  a  vote  of  two-thirds  in 
amount  of  all  the  stockholders  of  the  company  aforesaid. 

Code.  s.  1939;  1871-2,  e.  138,  s.  9. 

2556.  Liability  of  stocl<holders;  how  stockholder  made  liable; 

when  execution  issues  against.  Each  stockholder  of  any  such  com- 
pany shall  be  individually  liable  to  the  creditors  of  such  company  to 
an  amount  equal  to  the  amount  unpaid  on  the  stock  held  by  him,  for 
all  the  debts  and  liabilities  of  siich  company  until  the  whole  amount 
of  the  capital  stock  so  held  by  him  shall  have  been  paid  to  the  com- 
pany and  all  the  stockholders  of  any  such  company  shall  be  jointly 
and  severally  liable  for  the  debts  due  or  owing  to  any  of  its  labor- 
ers and  servants,  other  than  contractors,  for  personal  services  for 
thirry  days'  service  ])crformod  for  such  company,  but  shall  not  be  lia- 
ble to  an  action  therefor  before  an  execution  shall  be  returned  iinsat- 
isfied  in  whole  or  in  part  against  the  corporation,  and  tlie  amount  due 
on  sucli  execution  shall  be  the  amount  recoverable  with  costs  against 


2.550  KAILROADS— /.    Creadon.  Ch.  61 

siicli  stockholder.  Before  sucli  laborer  or  servant  shall  charge  sucli 
stockholders  for  such  thirty  days'  service  he  shall  give  thciu  notice 
in  writing  witliin  twenty  days  after  the  jierforniauce  of  such  service 
that  he  intends  to  hold  them  liable  and  shall  commence  such  action 
therefor  within  thirty  days  after  the  return  of  such  execution  unsatis- 
fied as  above  mentioned ;  and  every  such  stockholder,  against  whom 
any  such  recovery  by  such  laborer  or  servant  shall  have  been  had, 
shall  have  a  right  to  recover  the  same  of  the  other  stockholders  in 
said  corjjoration  in  ratable  proportion  to  the  amount  of  the  stock  they 
shall  respectively  hold  with  himself. 
Code,  s.  1940;  1871-2,  c.  138,  s.  10. 

2557.  Liability  of  trustee,  guardian  or  executor  holding  stock. 

Xo  person  holding  stuck  in  any  such  ctmipany  as  executor,  adminis- 
trator, giiardian  or  trustee,  and  no  person  holding  such  stock  as  col- 
lateral security,  shall  be  personally  subject  to  any  liability  as  stock- 
holder of  such  company ;  but  the  person  pledging  such  stock  shall  be 
considered  as  holding  the  same,  and  shall  be  liable  as  a  stockholder 
accordingly;  and  the  estates  in  the  bands  of  such  executor,  adminis- 
trator, guardian  or  trustee,  shall  be  liable  in  like  manner  and  to  the 
same  extent  as  the  testator  or  intestate  or  the  ward  or  person  inter- 
ested in  such  trust  fuTid  would  have  been  if  he  had  been  living  and 
competent  to  act  and  hold  the  same  stock  in  his  own  name. 
Code,  s.  1941;  1871-2,  c.  138,  s.  11. 

II.     Municipal    Subscrii'tions. 

2558.  Counties  may  aid  railroads.  The  boards  of  commissioners 
of  the  several  counties  shall  have  power  to  subscribe  stock  to  any  rail- 
road company  when  necessary  to  aid  in  the  construction  of  any  rail- 
road in  which  the  citizens  of  the  county  may  have  an  interest. 

Code,  s.  1996;  1868-9,  c.  171,  s.  1. 

2559.  How  made.  The  board  of  commissioners  of  any  county 
proposing  to  take  stock  in  any  railroad  comjiany  shall  meet  and  agree 
upon  the  amount  to  be  subscribed,  and  if  a  nmjority  of  the  board 
shall  vote  for  the  proposition,  this  shall  be  entered  of  record,  which 
shall  show  the  amount  proposed  to  be  subscribed,  to  what  company, 
and  whether  in  bonds,  money  or  other  property,  and  thereupon 
the  board  .shall  order  an  election,  to  be  held  on  a  notice  of  not 
less  than  thirty  days,  for  the  purpose  of  voting  for  nr  against 
the  proposition  to  subscribe  the  amount  of  stock  agreed  on  by  the 
board  of  county  commissioners.  And  if  a  majority  of  the  (]ualified 
voters  of  the  county  shall  vote  in  favor  of  the  projiosition,  the  board 
of  county  connnissioners,  through  their  chairman,  shall  have  ]io\ver 


■2i>b\)  EAILROADS — II.  Municipal  Suhscriplions.  Cli.   61 

to  subscribe  tbe  amount  of  stock  proposed  by  them,  and  submitted  to 
the  people  subject  to  all  the  rules,  regulations  and  restrictions  of 
other  stockholders  in  such  company :  Provided,  that  the  counties,  in 
the  manner  aforesaid,  shall  subscribe  from  time  to  time  such  amounts, 
either  in  bonds  or  money,  as  they  may  think  proper. 

Code,  s.  1997;   18G8-9,  c.  171,  s.  2. 

2560.  Election  for,  held.  All  elections  ordered  under  the  pre- 
ceding section  shall  be  held  by  the  sheriff  under  the  laws  and  regu- 
lations provided  for  the  election  of  members  of  the  general  assembly. 
The  votes  shall  be  compared  by  the  boards  of  county  commissioners 
who  shall  make  a  record  of  the  same. 

Code,  s.  1998;   1868-9,  c.  171,  s.  3. 

2561.  How  Interest  on  bonds  paid.  In  case  the  county  shall  sub- 
scribe the  aiiiouut  jiroposed  in  lionds,  the  board  of  commissioners 
shall  have  power  to  fix  the  rate  of  interest,  not  to  exceed  the  rate  of  six 
per  cent.,  when  the  principal  on  said  bonds  shall  be  payable,  and  at 
what  place,  and  shall  also  fix  the  time  and  places  of  paying  the  inter- 
est, and  shall  also  determine  the  mode  and  manner  of  paying  the 
same;  and  also  to  raise  by  taxation,  from  year  to  year,  the  amount 
necessary  to  meet  the  interest  on  said  bonds. 

Code,  s.  1099;  18G8-9,  c.  171,  s.  4. 

2562.  How  taxes  for  bonds  collected.  The  taxes  authorized  by 
the  three  preceding  sections  to  be  raised  for  the  payment  of  interest 
or  principal,  shall  be  collected  by  the  sheriff  in  like  manner  as  other 
state  taxes,  and  be  paid  into  the  hands  of  the  county  treasurer,  to  be 
used  by  the  chairman  of  the  board  of  county  commissioners  as 
directed  by  this  chapter. 

Code,  s.  2000;  1868-9,  c.  171,  s.  5. 

III.       ClIAETER  FOEFEITED. 

2563.  By  preference  to  shippers.  In  the  event  of  any  contract 
ha\'ing  been  entered  into  by  any  railroad  company  in  this  state  with 
any  person  or  company,  whereby  preferences  or  exclusive  rights  of 
transportation,  either  in  priority  or  in  arrangements,  is  given  to  such 
jicrson  or  company,  the  attorney  general  is  hereby  instructed  to  insti- 
tute proceedings  against  such  railroad  company  for  a  forfeiture  of 
its  charter. 

Code,  s.  1969;   1865-6,  resolution  ratified  neoember  14,  1865. 

2564.  By  failure  to  begin  in  two  years  or  to  complete  in  ten.  If 

any  railroad  e<ir|iiii-afi()H  sliall  nut  within  two  years  after  its  articles 
of  association  arc  tiled  and  recorded  in  the  nflice  of  the  secretary  of 

763 


2564  EAILROADS— ///.   Charter  Forfeited.  Ch.   Gl 

state,  or  the  passage  of  its  charter,  begin  the  construction  of  its  road 
and  expend  thereon  ten  per  cent,  of  the  amount  of  its  capital,  or  shall 
not  finish  the  road  and  put  it  in  operation  in  ten  years  from  the 
time  of  filing  its  articles  of  association  or  passage  of  its  charter  as 
aforesaid,  its  corporate  existence  and  powers  shall  cease. 
Code,  s.  1980;  1871-2,  c.  138,  s.  43. 

2565.  Company  dissolved,  owner  or  purchaser  a  corporation. 

When   any  railroatl   corpi.iratiua   shall   Ix'   dissolved,   (pr   its   property 
sold  and  conveyed  under  any  execution,  deed  of  trust,  mortgage  or 
other  conveyance,  the  owner  or  purchaser  shall  constitute  a  new  cor- 
poration upon  compliance  with  law. 
Code,  s.  2005. 

IV.    ('oiiPoRATE  Powers. 

2566.  This  chapter  applicable  to  all  railroads.  All  existing  rail- 
road corporations  within  tliis  state  shall  respectively  have  and  pos- 
sess all  the  powers  and  privileges  contained  in  this  chapter;  and  they 
shall  he  subject  to  all  the  duties,  liabilities  and  provisions  of  this 
chapter  not  inconsistent  with  their  charters.  And  this  chapter  shall 
govern  and  control,  anything  in  any  special  act  of  assembly  creating 
a  railroad  corporation  to  the  contrary  notwithstanding,  unless  in 
the  act  of  the  general  assembly  creating  the  corporation  the  section 
or  sections  of  this  chapter  intended  to  be  repealed  shall  be  specially 
referred  to  by  number  and,  as  such,  specially  repealed. 

Code,  ss.  701,  1982;  1871-2,  c.  138,  s.  45. 

2567.  General  powers.  Every  railroad  corporation  shall  have 
power : 

1.  Entky  on  land;  surveys. 

To  cause  such  examination  and  surveys  for  it;s  proposed  railroad 
to  be  made  as  may  be  necessary  to  the  selection  of  the  most  advan- 
tageous route ;  and  for  such  ])urpose,  by  its  officers  or  agents  and 
servants  to  enter  ujion  the  lauds  or  waters  of  any  person,  but  sub- 
ject to  responsibility  f(ir  all  dauiagcs  which  shall  bo  done  thereto. 

2.  Voluntary  grants. 

To  take  and  hold  such  voluntary  grants  of  real  cslale  and  other 
property  as  shall  be  made  to  it  to  aid  in  the  construction,  mainte- 
nance and  accommodation  of  its  railroad ;  but  the  real  estate  received 
by  voluntary  grant  shall  bo  hold  and  used  for  llie  ])ur|ioses  of  such 
grant  only. 


2567  EAILEOADS— 77.   Coiyorate  Powers.  Ch.   61 

3.  Holding  propeety. 

To  pxirchase,  hold  and  use  all  such  real  estate  and  other  jiroperty 
as  may  be  necessary  for  the  construction  and  maintenance  of  its 
railroad  and  the  stations  and  other  accommodations  necessary  to  ac- 
complish the  object  of  its  incorporation. 

4.  Grade  of  koad. 

To  lay  out  its  road,  not  exceeding  one  hundred  feet  in  «idth,  and 
to  construct  the  same,  and  for  the  purpose  of  cuttings  and  embank- 
ments to  take  as  much  more  land  as  may  be  necessary  for  the  proper 
construction  and  security  of  the  road,  and  to  cut  down  any  standing 
trees  that  may  be  in  danger  of  falling  on  the  road,  making  compen- 
sation therefor  as  provided  in  this  chapter  for  lands  taken  for  the 
use  of  the  company. 

5.  Obstructions  not  allowable. 

To  construct  its  road  across,  along,  or  upon  any  stream  of  water, 
watercourse,  street,  highway,  plankroad,  turnpike,  railroad  or  canal 
which  the  route  of  its  road  shall  intersect  or  touch,  but  the  company 
shall  restore  the  stream  or  watercourse,  street,  highway,  plankroad 
and  turnpike  road  thus  intersected  or  touched,  to  its  former  state  or 
to  such  state  as  not  unnecessarily  to  have  impaired  its  usefulness. 
jVothing  in  this  chapter  contained  shall  be  construed  to  authorize  the 
erection  of  any  bridge  or  any  other  obstructions  across,  in,  or  over 
any  stream  or  lake  navigated  by  steam  or  sail  boats,  at  the  place 
where  any  bridge  or  other  obsti'uctions  may  be  proposed  to  be  placed, 
nor  to  authorize  the  construction  of  any  railroad  not  already  located 
in,  upon,  or  across  any  streets  in  any  city  without  the  assent  of  the 
corporation  of  such  city. 

6.  CeossinGj  intersecting,  etc.,  of  railroads. 

To  cross,  intersect,  join  and  unite  its  railroad  with  any  other  rail- 
road before  constructed,  at  any  point  on  its  route,  and  upon  the 
grounds  of  such  other  company,  with  the  necessary  turnouts,  sidings 
and  switches  and  other  conveniences  in  furtherance  of  the  object  of 
its  connections.  And  every  company  whose  railroad  is  or  shall  be 
hereafter  intersected  by  any  new  railroad  shall  imite  with  the  own- 
ers of  such  new  railroad  in  forming  such  intersections  and  connec- 
tions and  gi'ant  the  facilities  aforesaid,  and  if  the  two  corporations 
can  not  agree  upon  the  amount  of  compensation  to  be  made  therefor, 
or  the  points  and  manner  of  such  crossings  and  connections,  the 
same  shall  be  ascertained  and  determined  by  commissioners  to  be 
appointed  by  the  court  as  is  provided  in  this  chapiter  in  respect  to 
acquiring  title  to  real  estate. 

765 


2567  EAILEOADS— ZF.   Corporate  Powers.  C"h.   Gl 

7.  Right  to  caeey  persons  and  propekty. 

To  take  and  convey  persons  and  property  on  its  railroad  by  the 
power  or  force  of  steam,  electricity  or  aiiinials,  or  by  any  mechanical 
power,  and  to  receive  compensation  therefor. 

8.  Erection  of  necessary  buildings. 

To  erect  and  maintain  all  necessary  and  convenient  buildings, 
stations,  fixtures  and  machinery  for  the  accommodation  and  use  of 
its  passengers,  freight  and  business. 

9.  Regulation  of  time  and  manner  of  transportation. 

To  regulate  the  time  and  manner  in  which  passengers  and  prop- 
erty shall  be  transported  and  the  compensation  to  be  paid  therefor ; 
and  such  compensation  for  any  passenger  and  his  ordinary  baggage 
shall  not  exceed  five  cents  per  mile. 

10.  Borrow  money^  on  mortgage. 

From  time  to  time  to  borrow  such  sums  of  money  as  may  be  nec- 
essary for  completing  and  finishing  or  operating  its  railroad,  and 
to  issue  and  dispose  of  their  bonds  for  any  amount  so  borrowed,  and 
to  mortgage  its  corporate  property  and  franchises  and  to  secure  the 
payment  of  any  debt  contracted  by  the  company  for  the  purposes 
aforesaid,  and  the  directors  of  the  company  may  confer  on  any 
holder  of  any  bond  issued  for  money  borrowed,  as  aforesaid,  the 
right  to  convert  the  principal  due  or  owing  thereon  into  stock  of  said 
company  at  any  time  under  such  regulations  as  the  directors  may  see 
fit  to  adopt. 

11.  May  lease  rails  and  remove  at  end  of  term. 

Any  railroad,  person  or  cumpany  may  lease  iron  rails  to  any  person 
or  corporation  for  such  time  and  upon  such  terms  as  may  be  agreed 
on  by  the  contracting  parties,  and  upon  the  termination  of  the  lease 
by  expiration,  forfeiture  or  surrender,  to  take  possession  of  and  re- 
move the  rails  so  leased  as  if  they  had  never  been  laid. 

12.  May  aid  in  the  construction  of  connecting  roads  oe 

HRANCH   lines;   EXCEPTION. 

Any  railroad  or  other  transjiortatidu  company  shall  have  the  right 
to  aid  in  the  construction  of  any  railroad  or  branch  railroad  in  this 
or  an  adjoining  state  connected  with  it  directly  or  indirectly,  if  the 
construction  of  such  railroad  or  branch  railroad  is  authorized  by 
law. 


L'5(i7  EAILROADS— ZF.   Corporate  Powers.  Ch.   (Jl 

13.  May  acquire  oit  guarantee  stocks  or  bonds  of  connect- 

IXG   LINE. 

Any  railroad  or  other  transportation  comjjany  may  acquire  and 
hold  or  guarantee,  or  endorse  the  bonds  or  stocks  of,  or  may  lease 
any  railroad  or  branch  railroad,  or  other  transportioii  line  in  this 
or  an  adjoining  state  connecting  with  it  directly  or  indirectly. 

14.  May  establish  hotels. 

To  purchase,  lease,  hold,  operate  or  maintain  eating-houses,  hotels 
and  restaurants  for  the  accommodation  of  the  traveling  public  along 
the  line  of  their  respective  roads. 

Code,  s.  1957;  1885,  c.  108;  1887,  c.  341;  1889,  c.  518;  1871-2,  c.  138,  s.  29. 

2568.  Highways  crossed.  Whenever  the  track  of  a  railroad  con- 
structed by  a  company  shall  cross  a  railroad,  a  highway,  turnpike  or 
plankroad,  such  highway,  turnpike  or  plankroad  may  be  carried 
under  or  over  the  track  as  may  be  found  most  expedient ;  and  in 
cases  where  an  embankment  or  cutting  shall  make  a  change  in 
the  line  of  such  highway,  turnpike  or  plankroad  desirable,  the  said 
company  may  take  such  additional  lands  for  the  construction  of  such 
road,  highway,  turnpike  or  plankroad  on  such  new  line  as  may 
be  deemed  requisite  by  the  directors.  Unless  the  lands  so  taken 
shall  be  purchased  for  the  purposes  aforesaid,  compensation  therefor 
shall  be  ascertained  in  the  manner  prescribed  in  this  chapter  for 
acquiring  title  to  real  estate,  and  duly  made  by  said  corporation  to 
the  owners  and  j^ersons  interested  in  such  land.  The  same  when  so 
taken  shall  become  a  part  of  such  intersecting  highway,  turnpike 
or  plankroad  in  such  manner  and  by  such  tenure  as  the  adjacent 
parts  of  the  same  highway,  turnpike  or  plankroad  may  be  held  for 
highway  purposes. 

Code,  s.  1954;   1871-2,  c.  138,  s.  26. 

Note.  For  liability  of  railroads,  etc.,  to  keep  up  bridges  and  crossings,  see 
ss.  2700,  2701. 

2569.  Not  to  obstruct  roads  or  ways.  Whenever,  in  their  con- 
struction, the  works  of  any  of  said  corporations  shall  cross  estab- 
lished roads  or  ways,  the  corporation  shall  so  construct  its  works  as 
not  to  impede  the  passage  or  transportation  of  persons  or  property 
along  the  same. 

Code,  s.  1710;  R.  C.  c.  61,  s.  30;  1874-5,  c.  83. 

2570.  When  company  may  turn  roads.  In  order  to  prevent  the 

frequent  crossing  of  sur-h  roads  or  ways,  or  in  cases  where  it  may 
bo  necessary  to  occu])y  the   same,   the  corporation  may  change  the 


767 


k 


2570  EAILROADS— /T'.   Corporate  Powers.  Ch.   (M 

roads  and  ways  so  as  to  avoid  such  crossing  aiul  occupation,  and  t^ 
such  points  as  may  be  deemed  expedient. 
Code,  s.  1711;  R.  C,  c.  61,  s.  31;  1874-5,  c.  83. 

2571.  Damages  paid,  when  road  turned.  For  any  injury  done- 

to  the  lands  of  persons  by  taking  them  under  the  preceding  section, 
the  vahie  thereof  sliall  be  assessed  in  like  manner  as  is  provided  for 
assessing  damages  to  real  estate  for  taking  lands  for  railroads  as  in 
this  chapter  provided. 

Code,  s.  1712;  R.  C,  c.  61,  s.  32;   1874-5,  c.  83. 

2572.  Established  roads  not  impeded  until  new  road  made. 

Before  any  part  of  an  established  road  or  way  shall  be  impeded  by 
any  of  said  corporations,  the  new  road  or  way  shall  be  prepared  and 
made  equally  good  with  the  portion  profjosed  to  be  discontinued ;  and 
then  the  same  shall  be  deemed  a  part  of  the  original  road  or  way, 
and  shall  be  kept  up  and  repaired  as  before  the  change. 
Code,  s.  1713;  R.  C,  c.  61,  s.  33;  1874-5,  c.  83. 

2573.  Route  changed.  The  directors  of  every  company  may  by 
a  vote  of  two-thirds  of  their  whole  number  at  any  time  alter  or 
change  the  route  or  any  part  of  the  route  of  their  road  if  it  shall 
appear  to  them  that  the  line  can  be  improved  thereby,  and  shall 
have  the  same  right  and  power  to  acquire  title  to  any  lands  required 
for  the  purposes  of  the  company  in  such  altered  or  changed  route,  as 
if  the  road  had  been  located  there  in  the  first  instance ;  and  no  such 
alteration  shall  be  made  in  any  city  or  to'^vn  after  the  road  shall 
have  been  constructed,  unless  the  same  is  sanctioned  by  a  vote  of  two- 
thirds  of  the  corporate  authorities  of  said  city  or  town;  and  in 
ease  of  any  alteration  made  in  the  route  of  any  railroad  after  the 
company  has  commenced  grading,  compensation  shall  be  made  to 
all  persons  for  injury  so  done  to  any  lands  that  may  have  been 
donated  to  the  companj'.  And  when  any  route  or  line  is  aban- 
doned in  the  exercise  of  the  power  herein  granted,  full  compensation 
shall  be  made  by  the  company  for  all  mone,y,  labor,  bonds  or  mate- 
rial contributed  to  the  construction  of  the  road-bed  or  its  superstruct- 
ure by  those  so  interested  by  their  contributions  in  the  abandoned 
route  or  line.  All  the  provisions  of  this  chapter  relative  to  the  first 
location  and  to  acquiring  title  to  land  shall  apply  to  every  such  new 
or  altered  portion  of  the  route. 

Code,  s.  1953;  1871-2,  c.  138,  s.  25;  1889,  c.  391 ;  1893,  c.  39G,  s.  3. 

2574.  Merger  of;  certificate  to  secretary  of  state;  effect.  Any 

railroad  corporation  or  its  successors,  being  the  lessee  of  the  road 
of  any  other  railroad  corporation,  may  take  a  surrender  or  transfer 
of  the  capital  stock  of  the  stockholders  or  any  of  them,  in  the  cor- 


2574  EAILROADS— /r.   Corporate  Powers.  Cli.   lil 

poration  whose  road  is  held  under  lease,  and  issue  in  exchange  there- 
for the  like  additional  amount  of  its  own  capital  stock  at  par,  or  on 
such  other  terms  and  conditions  as  may  be  agreed  upon  between  the 
two  corporations ;  and  whenever  the  gTeater  part  of  the  capital  stock 
of  any  such  corporation  shall  have  been  so  suiTcndered  or  trans- 
ferred, the  directors  of  the  corporation  taking  such  surrender  or 
transfer  shall  thereafter,  on  a  resolution  electing  so  to  do  to  be  en- 
tered on  their  minutes,  become  ex  ofHcio  the  directors  of  the  corpora- 
tion whose  road  is  so  held  under  lease,  and  shall  manage  and  conduct 
the  affairs  thereof  as  provided  by  law ;  and  whenever  the  whole  of 
said  capital  stock  shall  have  been  so  surrendered  or  transferred,  and 
a  certificate  thereof  filed  in  the  office  of  the  secretary  of  state  under 
the  common  seal  of  the  corporation  to  whom  such  surrender  or  trans- 
fer shall  have  been  made,  the  estate,  property,  rights,  privileges  and 
franchises  of  the  said  corporation  whose  stock  shall  have  been  so  sur- 
rendered or  transferred,  shall  thereupon  vest  in  and  be  held  and 
enjoyed  by  the  said  corporation  to  whom  such  surrender  or  transfer 
shall  have  been  made,  as  fully  and  entirely  and  without  charge  or 
diminution  as  the  same  were  before  held  and  enjoyed,  and  be  man- 
aged and  controlled  by  the  board  of  directors  of  the  said  corporation 
to  whom  such  surrender  or  transfer  of  the  said  stock  shall  have 
been  made  in  the  corporate  name  of  such  corporation.  But  the 
property,  rights,  franchises  and  profits  of  every  corporation  so  sur- 
rendered, transferred  or  leased,  shall  hereafter  always  be  liable  to 
taxation,  and  shall  never  be  exempt  therefrom.  The  rights  of  any 
stockholder  not  so  surrendering  or  transferring  his  stock  shall  not 
be  in  any  way  affected  thereby,  nor  shall  existing  liabilities  or  the 
rights  of  creditors  of  the  corporation  wdiere  stock  shall  have  been 
so  surrendered  or  transferred  be  in  any  way  affected  or  impaired  bv 
this  section. 

Code,  s.  1994;  1871-2,  c.  138,  s.  57. 

V.     Eminent  Domain. 

2575.  What  companies  may  exercise.  Every  railroad,  street 
railway,  plankroad,  tramroad,  turnpike,  and  canal  company,  for 
the  purpose  of  constructing  their  road  or  canal,  may  at  any  time 
enter  upon  the  lands  through  which  they  may  desire  to  conduct  their 
road  or  canal,  and  lay  out  the  same  as  they  may  desire ;  and  they 
may  also  enter  on  such  contiguous  land  along  the  route  as  may  be 
necessary  for  depots,  warehouses,  engine-sheds,  workshops,  water- 
stations,  toll-houses,  and  other  buildings  necessary  for  the  accommo- 
dation of  their  officers,  servants  and  agents,  horses,  mules  and  other 
cattle,  and  for  the  protection  of  their  property;  and  shall  pay  to 
the  pi'oprietors  of  the  land,   so   entered   on.   such   sun\   as   may   be 

Kcv.  Vol.  1—4.5  769 


2575  IvAIJ.ROADS — 1'.   Eminent  Domain.  Ch.   01 

agi-eed  on  between  them.  Telegraph,  telephone,  electric  power  or 
lighting,  public  water  supply  and  incorporated  bridge  companies 
may  exercise  the  right  of  eminent  domain  under  the  provisions  of 
this  subchapter. 

Code,  s.  1G98;  R.  C,  c.  61,  s.  9;  1852,  c.  92,  s.  1;  1874-5,  c.  83. 

2576.  May  take  material  from  adjacent  lands.  For  the  pur- 
pose of  constructing  its  works  and  necessary  appurtenances  thereto, 
or  of  repairing  them  after  they  shall  have  been  made,  or  of  enlarging 
or  otherwise  altering  them,  the  company  may,  at  any  time,  enter  on 
any  adjacent  lands,  and  cut,  dig,  and  take  therefrom  any  wood, 
stone,  gravel  or  earth,  which  may  be  deemed  necessary :  Provided, 
that  they  shall  not,  without  the  consent  of  the  owner,  destroy  or 
injure  any  ornamental  or  fruit  trees. 

Code,  s.  1702,  R.  C,  e.  61,  s.  22;  1874-5,  c.  S.'?. 

2577.  How  material  paid  for.  If  for  the  value  of  the  dam- 
ages done  to  the  owner  by  reason  of  the  acts  in  the  preceding  section 
mentioned,  the  jjarties  may  be  unable  to  agree,  the  same  shall  be 
valued  in  the  maimer  hereinafter  provided. 

Code,  s.  1703;  K.  C,  c.  61,  s.  23;   1874-5,  c.  S3. 

2578.  Dwelling-house  and  burial  grounds  can  not  be  con- 
demned. ~No  such  corporation  shall  be  allowed  to  have  condemned 
to  its  use,  without  the  consent  of  the  owner,  his  dwelling-house, 
yard,  kitchen,  garden  or  burial  ground. 

Code,  s.  1701;  R.  C,  c.  61,  s.  21;  1852,  c.  92,  s.  1;  1874-5,  c.  83. 

2579.  Proceedings  when  parties  can  not  agree.  If  any  com- 
pany possessing  by  law  the  right  of  eminent  domain  in  this  state 
is  unable  to  agree  for  the  purchase  of  any  real  estate  required  for 
the  purposes  of  its  incorporation,  it  shall  have  the  right  to  acquire 
title  to  the  same  in  the  manner  and  by  the  special  proceedings  pre- 
scribed in  this  chapter. 

Code,  ss.  1943,  2009;  1885.  c.  168:  1893,  c.  03;  lliOl.  cc.  0,  41.  s.  2;  1899,  c.  64; 
1903,  ce.  562,  159,  s.  16;  1871-2,  c.  138.  s.  13. 

2580.  Petition  filed;  contains  what;  copy  served.  For  the  pur- 
pose of  acquiring  such  title  such  c.anjiany,  or  the  owner  of  the  land 
sought  to  be  condemned,  may  present  a  petition  to  the  clerk  of  the 
superior  court  of  the  coimty  in  which  the  real  estate  described  in  the 
petition  is  situated,  praying  for  the  appointment  of  commissioners 
of  appraisal.  Such  petition  shall  be  signed  and  verified  according 
to  the  rules  and  practice  of  such  court;  and  if  filed  by  the  company, 
it  must  contain  a  description  of  the  real  estate  whicli  the  company 
seeks  to  acquire;  and  it  must,  in  ofToct,  state  that  the  company  is 


2580  RAILROADS — V.   Eminent  Domain.  Cli.    (Jl 

duly  incorporated,  and  that  it  is  the  intention  of  the  company  in 
good  faith  to  conduct  and  carry  on  the  public  business  authorized 
by  its  charter,  stating  in  detail  the  nature  of  such  public  business, 
and  the  specific  use  of  such  land;  that  the  land  described  in  the 
petition  is  required  for  the  purpose  of  conducting  the  proposed 
business,  and  that  the  company  has  not  been  able  to  acquire  title 
thereto,  and  the  reason  of  such  inability.  The  petition,  whether 
filed  by  the  company  or  the  owner  of  the  land,  must  also  state  the 
names  and  places  of  residence  of  the  parties,  so  far  as  the  same  can 
by  reasonable  diligence  be  ascertained,  who  own  or  have,  or  claim  to 
own  or  have,  estates  or  interests  in  the  said  real  estate ;  and  if  any 
such  persons  are  infants,  their  ages,  or  as  near  as  may  be,  must  be 
stated;  and  if  any  such  persons  are  idiots  or  persons  of  unsound 
mind  or  are  imknown,  that  fact  must  be  stated,  together  with  such 
other  allegations  and  statements  of  liens  or  incumbrances  on  said 
real  estate  as  the  company  or  the  owner  may  see  fit  to  make.  A  sum- 
mons as  in  other  cases  of  special  proceedings,  together  with  a  copy 
of  the  petition,  must  be  served  on  all  persons  whose  interests  are  to 
be  afi'ected  by  the  proceedings,  at  least  ten  days  prior  to  the  hear- 
ing of  the  same  by  the  court. 

Code,  s.  1944;  1893,  c.  396;  1871-2,  e.  138,  s.  14. 

2581.  How   process   served.   The  summons  and  a  cojDy  of  the 
petition  shall  be  served  in  the  same  manner  as  in  special  proceedings. 

Code,  s.  1944;  1871-2,  c.  138,  s.  14. 

2582.  Service  where  parties  unl<nown.  If  the  person  on  whom 

such  service  of  summons  and  petition  is  to  be  made  is  unknown,  or 
his  residence  is  unknown  and  can  not  by  reasonable  diligence  be 
ascertained,  then  such  service  may  be  made  imder  the  direction  of 
the  coiirt,  by  publishing  a  notice,  stating  the  time  and  place  within 
which  such  person  must  appear  and  plead,  the  object  thereof,  with  a 
description  of  the  land  to  be  affected  by  the  proceedings,  in  a  paper, 
if  there  be  one,  printed  in  the  county  where  the  land  is  situate,  once 
in  each  week,  for  four  weeks  previous  to  the  time  fi.xed  by  the  court, 
and  if  there  be  no  paper  printed  in  said  county;  then  in  a  newspaper 
printed  in  the  city  of  Raleigh. 
Code,  s.  1944,  subsec.  5. 

2583.  When  court  may  direct  how  papers  to  be  served.  In  all 

cases  not  herein  otherwise  provided  for,  services  of  orders,  notices, 
and  other  papers  in  the  special  proceedings  authorized  by  this  chap- 
ter may  be  made  as  in  other  special  proceedings. 
Code,  s.  1944,  subsec.  7. 


25S4  KAILK(_)AL)S — V.   Emiucul  Domain.  ( 'li.    lU 

2584.  Answer  to  petition;  hearing;  commissioners  appointed. 

Oil  jireseiitiug  such  petition  to  tlie  superior  court,  witli  ]irool'  of  serv- 
ice of  a  copy  thereof,  aiul  of  the  .suiuiiious,  all  or  any  of  the  per- 
sons whose  estates  or  interests  are  to  be  affected  by  the  proceedings 
may  answer  snch  petition  and  show  cause  against  granting  the  prayer 
of  the  same,  and  may  disprove  any  of  the  facts  alleged  in  it.  The 
court  shall  bear  the  proofs  and  allegations  of  the  parties,  and  if  ni' 
sufficient  cause  is  shown  against  granting  the  praj'er  of  the  petition, 
it  shall  make  an  order  for  the  appointment  of  three  disinterested 
and  competent  freeholders  who  reside  in  the  county  where  the 
]n-emises  are  to  be  appraised,  for  the  purposes  of  the  company,  and 
shall  fix  the  time  and  place  for  the  first  meeting  of  the  commis- 
sioners. 

Code,  s.  1045;  1871-i,  c.  1.38,  s.  15. 

2585.  Powers  and  duties  of  commissioners.  The  commission- 
ers, before  entering  upon  the  discharge  of  their  duties,  shall  take  and 
subscribe  an  oath  that  they  will  fairly  and  impartially  appraise  the 
lands  mentioned  in  the  petition.  Any  one  of  them  may  issue  sub- 
poenas, administer  oaths  to  witnesses,  and  any  two  of  them  may 
adjourn  the  proceedings  before  them  from  time  to  time,  in  their 
discretion.  Whenever  they  meet  except  by  the  appointment  of  the 
court  or  pursuant  to  adjournment,  they  shall  cause  ten  days'  notice 
of  such  meeting  to  be  given  to  the  parties  who  are  to  be  affected  bv 
their  proceedings,  or  tbeir  attorney  or  agent.  They  shall  view  the 
premises  described  in  the  petition,  and  hear  the  proofs  and  allega- 
tions of  the  parties,  and  reduce  the  testimony,  if  any  is  taken  by 
them,  to  writing;  and  after  the  testimony  is  closed  in  each  case, 
and  without  any  unnecessary  delay,  and  before  proceeding  to  the 
examination  of  any  other  claim,  a  majority  of  them  all  being  present 
and  acting,  shall  ascertain  and  determine  the  compensation  which 
ought  justly  to  be  made  by  the  company  to  the  party  or  parties  own- 
ing or  interested  in  the  real  estate  appraised  by  them.  They  shall 
report  the  same  to  the  court  within  ten  days. 

Code,  s.  1946;  1871-2.  e.  1.38.  ss.  16-18:  1891,  c.  160. 

2586.  Report  of  commissioners,  form  of.  When  the  commis- 
sioners shall  have  assessed  the  damages,  they  shall  forthwith  make 
and  subscribe  a  written  report  of  their  proceedings,  in  substance  as 

follows : 

Tn  tlie  Clerk  of  the  Superior  Court  of County: 

Wv ,  romniissioners  appointed  liy  tlie  court  to  assess  the  damages  (hat 

have  been  and  will  be  sustained  by   ,  the  owner  of  certain  land  lying  in 

the  county  of ,  whieh  the coMijiany  proposes  to  condemn  for  its 

use,  do  hereby  certify  that  wc  met  on    (or  the  day  to  whieh   we  were 

regularly  adjourned),  and.  having  first  been  duly  sworn,  we  visited  the  premises 

772 


l'5.s0  liAILEOilDS — V.  Eminenl  Domain.  Vh.   «1 

of  the  owner,  and  after  taking  into  full  consideration  the  quality  and  quantity  of 
the  land  aforesaid,  the  additional  fencing  likely  to  be  occasioned  by  the  works  of 
the  company,  and  all  other  inconveniences  lijcely  to  result  to  the  omier,  we  have 
estimated  and  do  assess  the  damages  aforesaid  at  the  sum  of  $ 

We  have  estimated  the  special  benefits  which  the  said  owner  will  receive  from 
the  construction  of  said  works  to  be  the  sum  of  $ 

Given  under  our  hands,  the day  of ,  A.  D 

Code,  8.  1700;  R.  C,  e.  61,  s.  17;  1874-5,  c.  83. 

2587.  Exceptions  to  report;  hearing;  appeal;  when  title  vests; 

restitution,  when.  Within  twenty  days  aftur  tiling  tlw  reijort  tlie 
company  or  any  person  interested  in  the  said  land  may  tile  exceptions 
to  said  report,  and  upon  the  determination  of  the  same  by  the  court, 
either  party  to  the  proceedings  maj'  appeal  to  the  court  at  term, 
and  thence,  after  judgment,  to  the  supreme  court.  The  court  or 
judge  on  the  hearing  may  direct  a  new  appraisal,  modify  or  con- 
tirm  the  report,  or  make  such  order  in  the  premises  as  to  him  shall 
seem  right  and  proper.  If  the  said  company,  at  the  time  of  the 
appraisal,  shall  pay  into  court  the  sum  appraised  by  the  commis- 
sioners, then  and  in  that  event  the  said  companj'  may  enter,  take 
possession  of,  and  hold  said  lands,  notwithstanding  the  pendency  of 
the  appeal,  and  until  the  final  judgment  rendered  on  said  appeal. 
And  if  there  shall  be  no  appeal,  or  if  the  final  judgment  rendered 
upon  said  petition  and  proceedings  shall  be  in  favor  of  the  com- 
pany, and  upon  the  payment  by  said  company  of  the  sum  adjitdged, 
together  with  the  costs  and  counsel  fees  allowed  by  the  court,  into 
the  office  of  the  clerk  of  the  superior  court,  then  and  in  that  event 
all  persons  who  have  been  made  parties  to  the  proceedings  shall  be 
divested  and  barred  of  all  right,  estate  and  interest  in  such  easement 
in  such  real  estate  during  the  corporate  existence  of  the  company 
aforesaid.  A  certified  copy  of  such  judgment  under  the  seal  of  the 
court  shall  be  registered  in  the  county  where  the  land  is  situated,  and 
a  copy  of  the  same,  or  the  original  certified,  may  be  given  in  evi- 
dence in  all  actions  and  proceedings,  as  deeds  for  land  are  now 
allowed  to  be  read  in  evidence.  All  real  estate  acquired  by  any  com- 
pany under  and  pursuant  to  the  provisions  of  this  chapter,  for  the 
purpose  of  its  incorporation,  shall  be  deemed  to  be  acquired  for  the 
public  use.  But  if  the  court  shall  refuse  to  condemn  the  land,  or 
any  portion  thereof,  to  the  use  of  said  company,  then,  and  in  that 
event,  the  money  paid  into  court,  or  so  much  thereof  as  shall  be 
adjudged,  shall  be  refunded  to  said  company.  And  the  company 
shall  have  no  right  to  hold  said  land  not  condemned,  but  shall  sur- 
render the  possession  of  the  same  on  demand,  to  the  owner  or  own- 
ers, or  his  or  their  agent  or  attorney.  And  the  court  or  judge  shall 
have  full  power  and  authority  to  make  such  orders,  judgments  and 
decrees,  and  issue  such  executions  and  other  process  as  mav  be  nee- 


2587  EAILROADS— F.  Eminent  Donuiiu.  Ch.   f.l 

essary  to  carry  into  effect  the  final  judgment  rendered  in  such  pro- 
ceedings. 

Code,  s.  1946;  1893,  c.  148. 

2588.  Jury  trial  on  exceptions  to  report,  when.  In  any  action 

or  proceeding  by  any  railroad  or  other  corporation  to  acquire  rights 
of  way  or  real  estate  for  the  use  of  such  railroad  or  corporation,  and 
in  any  action  or  proceeding  by  any  city  or  town  to  acquire  rights  of 
way  for  streets,  any  person  interested  in  the  land,  or  the  city,  town, 
railroad  or  other  corporation  shall  be  entitled  to  have  the  amount  of 
damages  assessed  by  the  commissioners  or  jurors  heard  and  deter- 
mined upon  appeal  before  a  jury  of  the  superior  court  in  term,  if 
iTpon  the  hearing  of  such  appeal  a  trial  by  a  jury  be  demanded. 

1893,  c.  148. 

2589.  Wlien  benefits  exceed  damage,  company  pays  costs.  In 

any  case  where  the  benefits  to  the  land  caused  by  the  erection  of 
the  railroad,  street  railway,^  telephone,  telegTajDh,  water  supply, 
bridge,  or  electric  power  or  lighting  plant  are  ascertained  to  e\ 
ceed  the  damages  to  the  land,  then  the  said  company  shall  pay 
the  costs  of  the  proceeding  except  as  provided  in  section  one  thousand 
two  hundred  and  sixty-nine,  and  shall  not  have  a  judgment  for  the 
excess  of  benefits  over  the  damage. 
1891,  c.  160. 

2590.  Title  of  infants,  persons  non  compos,  and  trustees  with- 
out power  of  sale,  acquired.  In  case  any  title  or  interest  in  real 
estate  required  by  any  company  for  the  purpose  of  its  corporation 
shall  be  vested  in  any  trustee  not  authorized  to  sell,  release  and  con- 
vey the  same,  or  in  any  infant,  idiot  or  person  of  unsound  mind, 
the  superior  court  shall  have  power,  by  a  special  proceeding,  on  peti- 
tion, to  authorize  and  empower  such  trustee  or  the  general  guardian 
or  committee  of  such  infant,  idiot,  or  person  of  unsound  mind,  to 
sell  and  convey  the  same  to  such  company  for  the  purpose  of  its 
incorporation,  on  such  terms  as  may  be  just;  and  in  case  any  such 
infant,  idiot  or  person  of  unsoimd  mind  has  no  general  guardian 
or  committee,  the  said  court  may  appoint  a  s]iecial  guardian  or 
committee  for  the  piirpose  of  making  such  sale,  release  or  convey- 
ance, and  may  require  such  security  from  such  general  or  special 
guardian  or  committee  as  said  court  may  deem  proper,  lint  before 
any  conveyance  or  release  authorized  by  this  section  sliall  be  exe- 
cuted, the  terms  on  which  the  same  is  to  be  executed  shall  lie  reported 
to  the  court  on  oath ;  and  if  the  court  is  satisfied  that  such  terms  arc 
just  to  the  party  interested  in  such  real  estate,  the  court  shall  con- 
firm   tlic   report    and    direct    the    ]uv)]ier   cciuvevance   ur   release   io   lie 


::!590  KAILROADS — V.  Eminent  Domain.  Ch.  61 

executed,  which  shall  have  the  same  effect  as  if  executed  by  an 
owner  of  said  land  having  legal  power  to  sell  and  convey  the  same. 

Code,  s.  195G;  1871-2,  c.  138,  s.  28. 

Note.     See  also,  ss.  1798,  1800,  2518. 

2591.  Rights  of  claimants  of  fund  determined.  If  there  are  ad- 
verse and  conflicting;-  claimants  to  the  money,  or  any  part  of  it,  to 
be  paid  as  compensation  for  the  real  estate  taken,  the  court  may 
direct  the  money  to  be  paid  into  the  said  court  by  the  company,  and 
may  determine  who  is  entitled  to  the  same  and  direct  to  whom 
the  same  shall  be  paid,  and  may  in  its  discretion  order  a  reference 
to  ascertain  the  facts  on  which  such  determination  and  order  are  to 
be  made. 

Code,  s.  1947;  1871-2,  c.  138,  s.  19. 

2592.  Attorney  for  unl<nown  parties  appointed;  pleadings 
amended;  new  commissioners  appointed.  The  court  shall  appoint 

some  competent  attorney  to  appear  for  and  protect  the  rights  of  any 
party  in  interest  who  is  unknown  or  .whose  residence  is  unknown, 
and  who  has  not  appeared  in  the  proceedings  by  an  attorney  or 
agent,  "and  shall  make  an  allowance  to  said  attorney  for  his  seiw- 
ices,  which  shall  be  taxed  in  the  bill  of  costs.  The  court  shall  also 
have  power  at  any  time  to  amend  any  defect  or  informality  in  any 
of  the  special  proceedings  authorized  by  this  chapter  as  may  be 
necessary,  or  to  cause  new  parties  to  be  added  and  to  direct  such 
further  notices  to  be  given  to  any  party  in  interest,  as  it  deems 
proper ;  and  also  to  appoint  other  commissioners  in  place  of  any  who 
shall  die,  refuse,  neglect  to  serve  or  be  incapable  of  serving. 

Code,  s.  1948;  1871-2,  e.  138,  s.  20. 

2593.  Court  may  make  rules  of  procedure  in.  In  all  cases  of 

appraisal  under  this  chapter  where  the  mode  or  manner  of  conduct- 
ing all  or  any  of  the  proceedings  to  the  appraisal  and  the  proceedings 
consequent  thereon  arc  not  expressly  provided  for  by  the  statute, 
the  courts  before  whom  such  proceedings  may  be  pending  shall  have 
the  power  to  make  all  the  necessary  orders  and  give  the  proper  direc- 
tions to  carry  into  effect  the  object  and  intent  of  this  chapter,  and 
the  practice  in  such  cases  shall  conform  as  near  as  may  be  to  the 
ordinary  practice  in  such  courts. 
Code,  s.  1949;  1871-2,  e.  138,  s.  21. 

2594.  Change  of  ownership  pending  proceeding.    When  any 

proceedings  of  apprai.sal  shall  have  been  connnenccd,  no  change  of 
ownership  by  voluntary  conveyance  or  transfer  of  the  real  estate  or 
any  interest  therein  or  of  the  subject  matter  of  the  appraisal,  shall 
in  any  manner  affect  such  ]U'oceedings,  but  tlu^  same  may  be  carried 

775 


I 


2.-.!)4  KAILKOADS— 1'.  Eminent  Domain.  Vh.   01 

on  and  perfected  as  if  no  such  conveyance  or  transfer  had  been  made 
or  attempted  to  be  made. 

Code.  s.  1950;  1871-2,  c.  138,  s.  22. 

2595.  Defective  title,  how  cured,  if  at  any  time  after  au  attempt 
to  acquire  title  by  appraisal  of  damages  or  otherwise  it  shall  be 
fonnd  that  the  title  thereh}-  attemj^ted  to  be  acquired  is  defective, 
the  compajiy  may  proceed  anew  to  acquire  or  perfect  such  title  in 
the  same  manner  as  if  no  appraisal  had  been  made,  and  at  any  stage 
of  such  new  proceedings  the  court  may  authorize  the  corporation,  if 
in  possession,  to  continue  in  possession,  and  if  not  in  possession,  to 
take  possession  and  use  such  real  estate  during  the  pendency,  and 
until  the  final  conclusion  of  such  new  proceedings,  and  may  stay 
all  actions  or  proceedings  against  the  company  on  account  thereof, 
on  such  company  paying  into  coiirt  a  sufficient  sum  or  giving  secu- 
rity as  the  court  may  direct  to  pay  the  compensation  therefor  when 
finally  ascertained,  and  in  every  such  case  the  party  interested  in 
such  real  estate  may  conduct  the  proceedings  to  a  conclusion  if  the 
company  delays  or  omits  to  prosecute  the  same. 

Code,  s.  1951;  1871-2,  c.  138,  s.  23. 

2596.  Title  to  state  lands  acquired.  The  secretary  of  state  shall 
have  power  to  grant  to  any  railroad  company  any  land  belonging 
to  the  people  of  this  state  which  may  be  required  for  the  purposes  of 
its  road,  on  such  terms  as  may  be  agreed  on  by  them,  or  such  com- 
pany may  acquire  title  thereto  by  appraisal,  as  in  the  case  of 
lands  owned  by  individuals;  and  if  any  land  belonging  to  a  county 
or  town  is  required  by  any  company  for  the  purposes  of  the  road, 
the  county  or  town  officers  having  the  charge  of  such  land  may 
grant  such  land  to  such  company  for  such  compensation  as  may  be 
agreed  upon. 

Code,  s.  1955;  1871-2,  c.  138,  s.  27. 

Notp.     For  condemnation  for  water  supplies,  see  ss.  3060.  .30G1.  3002. 

2597.  Widths  which  may  be  condemned  for  certain  purposes. 

1.  Right  of  way  of  railroad. — The  width  of  the  land  condemned 
for  any  railroad  shall  not  be  less  than  eighty  feet  nor  more  than  one 
hundred,  except  where  the  road  may  run  through  a  town,  when  it 
may  be  of  loss  width;  or  where  there  may  be  deep  cuts  or  high  em- 
bankments, when  it  may  be  of  greater  width. 

2.  Plankkoads,  etc. — No  greater  width  of  laml  than  sixty  feet 
shall  lie  condemned  for  the  use  of  any  planknnid.  tramroail,  canal, 
strcM't  railway  or  turniiikc. 

3.  Depot   or   st.\.tiox. — No  greater   quantity   of   land   than   two 


2r.!»7  RAILROADS— T'.  Eminent  Domain.  Ch.   61 

acres,  contiguous  to  any  railroad,  plankroad,  traniroad,  turnpike  or 
canal  shall  be  condemned  at  one  place  for  a  depot  or  station. 

Code,  ss.  1707,  1708,  1709;  R.  C,  c.  Gl,  ss.  27,  28,  29;  1852,  c.  92;  1874-5.  c.  8;i. 

2598.  No  railroad,  etc.,  to  be  established  unless  authorized  by 

law.  If  any  person  or  corporation,  not  being  expressly  authorized 
thereto,  shall  make  or  establish  any  canal,  turnpike,  traniroad,  rail- 
road or  plankroad,  with  the  intent  that  the  same  shall  be  used  to 
transi:)ort  passengers  other  than  such  persons,  or  the  members  of  such 
corporation,  or  to  transport  any  productions,  fabrics  or  manufac- 
tures other  than  their  own,  the  person  or  corporation  so  offending, 
and  using  the  same  for  any  such  purpose,  shall  forfeit  and  pay  fifty 
dollars  for  every  person  and  article  of  produce  so  transported.  This 
section  shall  not  apply  to  any  narrow-gauge  railroad  or  tramroad, 
the  principal  business  of  which  is  the  transportation  of  logs,  lumber 
and  articles  for  the  owners  of  such  railroad  or  traniroad. 
Code,  s.  1717;  E.  C,  c.  61,  s.  37;  1874-5,  c.  83;  1901,  c.  282. 

VI.       CoNSTRUCTIOX. 

2599.  Map  of  route  served  with  petition.  Whenever  it  shall 

become  necessary  to  condemn  any  land  for  the  purposes  of  a  rail- 
road, at  the  time  that  the  summons  for  such  condemnation  is 
served,  there  shall  also  be  served  by  the  railroad  company  a  map 
showing  how  the  line  of  the  road  is  located  on  the  land  sought  to 
be  condemned,  and  a  profile  showing  the  depth  of  the  cuts  and  the 
heights  of  the  embankments  on  the  land  so  sought  to  be  condemned, 
and  at  what  points  on  such  land  such  cuts  and  embankments  are 
located.     This  section  shall  not  apply  to  street  railways. 

Code,  s.  1952;  1893,  c.  396,  s.  2;  1901,  c.  6,  s.  3;  1871-2,  c.  138,  s.  24. 

2600.  Map  of  railroad  made  and  filed.  Every  railroad  corpora- 
tion shall,  witliin  a  reasonable  time  after  their  road  sluill  be  con- 
structed, cause  to  be  made  a  map  and  profile  thereof,  and  of  the  land 
taken  or  obtained  for  the  use  thereof,  and  file  the  same  in  the  office 
of  the  corporation  commission.  Every  such  map  shall  be  dra\vn  on  a 
scale  and  on  paper  to  be  designated  by  the  corporation  commission, 
and  certified  and  signed  by  the  ]iresident  nr  eugineer  of  such  cor])0- 
ration. 

Code,  s.  1977:  1S71-2,  c.  138,  s.  41. 

2601.  Cattle   guards;   plantation   roads.   Every   incorporated 

company  owning,  ojieratiug  or  constructing,  or  which  shall  hereafter 
own,  operate  or  con.struct,  or  any  company  v.-hich  shall  hereafter  be 
incorporated,  and  shall  own,  operate  or  construct  any  railroad  pass- 


2G01  RAILROADS— T'7.   Construction.  Cli.  Gl 

ing  through  and  over  the  land  of  any  person  now  enclosed,  or  which 
may  hereafter  become  enclosed,  shall,  at  its  own  expense,  construct 
and  constant]}'  maintain  in  good  and  safe  condition,  good  and  suf- 
ficient cattle  guards  at  the  points  of  entrance  upon  and  exit  from 
said  enclosed  land,  and  they  shall  also  make  and  keep  in  constant 
repair  crossings  to  any  plantation  road  thereupon.  Every  such  cor- 
poration which  shall  fail  to  erect  and  constantly  maintain  such  cat- 
tle giiards  and  crossings  shall  be  liable  to  an  action  for  damages  to 
any  party  aggrieved. 

Code,  s.  1975;  1883,  c.  394,  ss.  2,  3. 

2602.  When  two  companies  may  jointly   construct   a   line. 

Whenever  two  railroad  companies  shall,  for  a  portion  of  their 
respective  lines,  embrace  the  same  location  of  line,  they  may  by 
agreement  provide  for  the  construction  of  so  much  of  said  line  as 
is  common  to  both  of  them,  by  one  of  the  companies,  and  for  tlie 
manner  and  terms  upon  which  the  business  thereon  shall  be  per- 
formed. Upon  the  making  of  such  an  agreement,  the  company  that 
is  not  to  constrttct  the  part  of  the  line  which  is  common  to  both  may 
terminate  its  line  at  the  point  of  intersection,  and  may  reduce  its 
capital  to  a  sum  of  not  less  than  five  thousand  dollars  for  each  mile 
of  the  road  proposed  to  be  constructed. 
Code,  s.  19S3;  1871-2,  c.  138,  s.  46. 

2603.  When  may  be  constructed  partly  in  another  state. 

Whenever  after  dtte  examination  it  shall  be  ascertained  by  the  direc- 
tors of  any  railroad  company  that  a  part  of  the  line  of  railroad  pro- 
posed to  be  made  between  any  two  points  in  this  state  ought  to  be 
located  and  constructed  in  an  adjoining  state,  it  may  be  so  located 
and  constructed  by  a  vote  of  two-thirds  of  all  the  directors,  and  the 
sections  of  said  railroad  within  this  state  shall  be  considered  a  con- 
nected line,  and  the  directors  may  reduce  the  capital  specified  to 
such  amount  as  may  be  deemed  proper,  btit  not  less  than  the  amount 
required  by  law  for  the  ntmibcr  of  miles  of  railroad  to  be  actually 
constructed  in  this  state. 

Code,  s.  1984;  1871-2,  c.  138,  s.  47. 

VIT.     Ski!v.\xts  .\Nn  Police. 

2604.  Conductors  and  other  employees  to  wear  badge,  when 

on  duty.  Every  conductor,  baggage  master,  engineer,  brakcman,  or 
(itlier  servant  of  any  railroad  corporation  employed  on  a  passenger 
train,  or  at  stations  for  passengers,  shall  wear  upon  his  hat  or  ca]> 
a  badge  which  shall  indicate  liia  office  and  the  initial  letters  of  the 
title  of  tlie  corporation   by  wliicli   lie   is  eniploye(l.      No  conductor 


2604  RAILROADS— F/7.  Servants  and  Police.  Cb.   (Jl 

or  collector  without  such  badge  sball  be  entitled  to  demand  or 
receive  from  any  passenger  any  fare  or  ticket,  or  to  exercise  any 
of  the  powers  of  his  office ;  and  no  officer  or  servant  without  such 
badge  shall  have  authority  to  meddle  or  interfere  with  any  passen- 
ger, his  baggage  or  property. 
Code,  s.  1958;  1871-2,  c.  138,  s.  30. 

2605.  May  apply  to  governor  to  appoint  police.  Any  corporation 

operating  a  railroad  on  which  steam  is  used  as  the  motive  power  may 
apply  to  the  governor  to  commission  such  persons  as  the  said  corpo- 
ration may  designate  to  act  as  policemen  for  said  corporation. 

Code,  s.  1988;   1871-2,  c.  138,  s.  51. 

2606.  Governor  may  appoint,  and  issue  commission.  The  gov- 
ernor ujion  sucli  application  may  appoint  such  persons  or  so  many 
of  them  as  he  may  deem  proper  to  be  such  policemen,  and  shall 
issue  to  such  person  or  persons  so  appointed  a  commission  to  act 
as  such  policemen. 

Code,  s.  1989;  1871-2,  c.  138,  s.  52. 

2607.  Oath  and  powers  of  special  policemen.  Every  policeman 

so  appointed  shall,  Ix'fore  entering  upon  the  duties  of  his  office,  take 
and  subscribe  the  usual  oath ;  such  oath,  with  a  copy  of  the  commis- 
sion, shall  be  filed  with  the  corporation  commission  and  a  certificate 
thereof  by  its  clerk  shall  be  filed  with  the  clerk  of  each  county 
through  or  into  which  the  railroad  for  which  such  policeman  is 
appointed  may  run  and  in  which  it  is  intended  he  shall  act,  and 
such  policeman  shall  severally  possess  within  the  limits  of  the  county 
all  tlie  powers  of  policemen  in  the  several  towns,  cities  and  villages 
in  wjiich  they  shall  be  so  authorized  to  act  as  aforesaid. 
Code,  s.  1990;  1871-2,  e.  138,  s.  53. 

2608.  Police  to  wear  badge  when  on  duty.  Such  railroad  po- 
lice shall,  when  on  diity,  severally  wear  a  metallic  shield  with  the 
words  "Railway  Police"  and  the  name  of  the  corporation  for  which 
appointed  inscribed  thereon,  and  said  shield  shall  always  be  worn 
in  plain  view  except  when  employed  as  detectives. 

Code,  s.  1991 ;  1871-2,  c.  138,  s.  .54. 

2609.  Compensation  of  police.  The  compensation  of  such  police 
.shall  be  paid  by  the  companies  for  which  the  policemen  are  respect- 
ively appointed  as  may  be  agreed  on  lietween  them. 

Code,  s.  1992;  1871-2,  e.  138,  s.  55. 

2610.  Dismissal  of  police;  notice,  where  filed.   Whenever  any. 

company  shall  no  longer  require  the  services  of  any  policeman  so 

779 


2(UU  llXUAiOAUS—VII.  Seivanl.^  and  Folicc.  Cli.   CI 

appointed  as  aforesaid,  it  may  file  a  notice  to  that  effect  in  the 
several  otfices  in  which  notice  of  such  a]jpointment  was  originally 
filed,  and  thercu]ian  the  power  of  sncli  dtiiccr  shall  cease  and  \>c 
determined. 

Code,  s.  1993;  1871-2,  c.  13S,  s.  56. 

VIII.        Ol'EKATIOX    OF    Tl!AINS._ 

2611.  Trains  to  run  on  schedule;  schedule  published;  must 

transport  freight  and  passengers.  Every  railroad  corporation 
sliall  start  and  rvin  their  cars  for  the  transportation  of  passenger- 
and  property  at  regular  times  to  be  fixed  by  public  notice,  and  shall 
furnish  sufficient  accommodation  for  the  transportation  of  all  such 
passengers  and  property  as  shall,  within  a  reasonable  time  previous 
thereto,  be  offered  for  transportation  at  the  place  of  starting  and 
the  junction  of  other  raih-oads  and  at  usual  stopping  places  estab- 
lished for  receiving  and  discharging  way  passengers  and  freights 
for  that  train,  and  shall  take,  transport  and  discharge  such  passen- 
gers and  property  at,  from  and  to  such  places,  on  the  due  pajnnent 
of  the  freight  or  fare  legally  authorized  therefor,  and  shall  be  liable 
to  the  party  aggi-ieved,  in  an  action  for  damages,  for  any  neglect  or 
refusal  in  the  premises. 

Code,  s.  1963;  1871-2,  c.  138,  s.  35. 

2612.  How  cars  arranged  in  passenger  train.  In  forming  a 

passenger  train,  baggage,  freight,  merchandise  or  lumber  cars  shall 
not  be  placed  in  rear  of  the  passenger  cars,  except  in  case  of  acci- 
dent, or  when  the  cars  are  provided  with  automatic  couplers  or 
brakes. 

Code,  s.  1971;  1871-2,  c.  138;  1893,  c.  331;  1895,  c.  212. 

2613.  What  trains  may  run  on  Sunday.  No  railroad  company 

shall  permit  the  loading  or  uidoading  of  any  freight  car  on  Sunday; 
nor  shall  permit  any  car,  train  of  cars,  or  locomotive  to  be  run  on 
Sunday  on  any  railroad,  except  in  case  of  accident  and  excejit  such 
as  may  be  run  for  the  purpose  of  transporting  the  United  States 
mails  and  passengers  with  their  baggage,  and  ordinary  express 
freight  in  express  cars  exclusively,  and  except  such  as  shall  be  run 
for  the  i)urpose  of  transporting  fruits,  vegetables,  live  stock  and 
perishable  freights.  "Where  there  are  not  sufficient  cars  of  live  stock 
or  other  perishable  freights  to  make  a  com])lete  train,  or  section  of 
a  train,  the  company  may  add  other  cars  to  complete  llie  same:  Pro- 
vided, the  word  Sunday  in  tiiis  section  shall  be  construed  to  embrace 
only  that  portion  of  the  day  between  sunrise  and  sunset;  and  trains 
in  transitu,  ha\iug  started  on  Saturdav,  mav,  in  order  to  reach  tiie 


2613  EAILROADS— 17//.    Operation  of  Trains.  (_'li.   (11 

terminus  or  shops,  run  until  nine  o'clock  a.  m.  on  Sunday,  but  not 
later,  nor  for  any  other  jjvirpose  than  to  reach  the  termmas  or  shops. 

Code,  s.  1973;  1879,  cc.  97,  203;  1885,  c.  92;  1897,  c.  126;  1901,  c.  444. 

2614.  Fast  mail  trains  authorized;  one  train  a  day  in  each 

direction  reCjUired.  Tlie  corporation  commission  is  hereby  empow- 
ered, whenever  it  siiall  appear  wise  and  proi:)er  to  do  so,  to  authorize 
any  railroad  company  to  run  one  or  more  fast  m'ail  trains  over  its 
road,  which  shall  only  stop  at  such  stations  on  the  line  of  the  road 
as  may  be  designated  by  the  company:  Provided,  that  in  addition 
to  such  fast  mail  train  said  railroad  shall  run  at  least  one  passenger 
train  in  each  direction  over  its  road  on  every  day  except  Sunday, 
which  shall  stop  at  every  station  on  the  road  at  whicli  passengers 
may  wish  to  be  taken  up  or  put  off:  Provided  further,  that  nothing 
in  this  section  shall  be  constriied  as  preventing  the  running  of  local 
passenger  trains  on  Sunday. 
1893,  c.  97. 

2615.  Vestibule  fronts  on  street  railway  cars.  All  street  pas- 
senger railway  companies  shall  use  vestibule  fronts,  of  frontage  not 
less  than  four  feet,  on  all  passenger  cars  run  by  them  on  their  lines 
during  the  latter  half  of  the  month  of  November  and  during  the 
months  of  December,  January,  February  and  March  of  each  year: 
Provided,  that  such  companies  shall  not  be  required  to  close  the 
sides  of  the  vestibules:  Provided  further,  siTch  companies  may  use 
cars  without  vestibule  fronts  in  cases  of  temporary  emergency  in 
suitable  weather,  not  to  exceed  four  days  in  any  one  month  within 
the  period  herein  prescribed  for  use  of  vestibule  fronts.  The  cor- 
poration commission  is  hereby  authorized  to  make  exemptions  from 
the  provisions  of  this  section  in  such  cases  as  in  their  judgment  the 
enforcement  of  this  section  is  unnecessary. 

1901,  c.  743. 

2616.  street  railways  to  have  fenders  in  front  of  passenger 

cars.  All  street  passenger  railway  com])anies  shall  use  practical 
fenders  in  front  of  all  passenger  cars  run  by  them.  The  corporation 
commission  is  hereby  authorized  to  make  exemptions  from  the  pro- 
vision of  this  section  in  such  cases  as  in  their  judginent  the  enforce- 
ment of  this  section  is  unnecessary. 
1901,  c.  743,  s.  2. 

2617.  May  seize  and  use  fuel.  If  any  railroad  or  other  trans- 
portation comjiany  finds  it  necessary,  in  order  to  prevent  delays  in 
the  transportation  of  freight  or  pas.sengers,  to  take  possession  of 
coal,  wood  or  other  fuel  not  its  own  property  and  convert  it  to  its 
own  use  without  an  agreement  with  the  owner  thereof,  it  shall  notify 


2617  EAILKOADS— 17//.   Operation  of  Trains.  Ch.  01 

such  owner  within  three  days  of  such  taking  and  shall,  within  a 
period  of  thirty  days,  pay  for  such  coal,  wood  or  other  fuel  at  the 
invoice  price  at  place  of  shipment,  plus  ten  per  cent.  Should  the 
transportation  company  fail  to  notify  the  consignee  or  owner  within 
such  three  days  or  pay  for  said  coal,  wood  or  other  fuel  at  the  invoice 
price  at  place  of  shipment,  plus  ten  per  cent,  as  above  provided, 
within  thirty  days  after  converting  the  same  to  its  own  use  it  shall 
in  addition  forfeit  to  the  party  aggrieved  the  sum  of  twenty-five  dol- 
lai-s  for  the  first  day  of  failure  to  notify  such  consignee  of  such 
appropriation  of  said  fuel,  or  their  failure  to  pay  for  the  same,  ami 
five  dollars  for  each  day  thereafter  in  which  they  shall  fail  to  notify 
such  consignee  or  pay  for  the  same. 
1903,  c.  590,  s.  4. 

IX.     Passexgees. 

2618.  First  and  second  class  accommodations.  All  railroad 

comjianies  shall  furnish  first  and  second  class  passenger  accommo- 
dations. 

1899,  e.  384,  s.  4. 

2619.  Separate  accommodations  for  different  races.  All  rail- 
road and  steamboat  companies  engaged  as  common  carriers  in  the 
transportation  of  passengers  for  hire,  other  than  street  railways, 
shall  provide  separate  but  equal  accommodations  for  the  white  and 
colored  races  at  passenger  stations  or  waiting  rooms,  and  also  on  all 
trains  and  steamboats  carrying  passengers.  Such  accommodations 
may  be  furnished  by  railroad  companies  either  by  separate  passen- 
ger cars  or  by  compartments  in  passenger  cars,  M'hich  shall  be  pro- 
vided by  the  railroads  under  the  supervision  and  direction  of  the 
corporation  commission:  Provided,  that  this  shall  not  apply  to  relief 
trains  in  cases  of  accident,  to  Pullman  or  sleeping  cars,  or  through 
express  trains  that  do  not  stop  at  all  stations  and  are  not  used  ordi- 
narily for  traveling  from  station  to  station,  to  negro  servants  in 
attendance  on  their  employers,  to  officers  or  guards  transporting  pris- 
oners, nor  to  prisoners  so  trans]iorted. 

1899,  c.  384;  1901,  c.  213. 

2620.  Corporation  commission  may  exempt  certain  roads  and 

trains.  The  corporation  commission  is  hereby  authorized  to  oxemjU 
from  the  provisions  of  the  preceding  section  steamboats,  branch  lines 
and  narrow-gauged  railroads  and  mixed  trains  carrying  both  freight 
and  passengers,  if  in  its  judgment  the  enforcement  of  the  same  be 
unnecessary  to  secure  the  comfort  of  passengers  by  reason  of  the 
light  volume  of  passenger  traffic,   or  the   small   nunibor  of  colored 


2620  EAILEOADS— /A'.  Passengers.  Ch.   61 

passenger  travelers  on  such  steamboats,  narrow-gaiige,  branch  lines  or 
mixed  trains. 

1S99,  c.  3S4,  s.  2;  1901,  e.  213. 

2621.  When  two  races  put  in  same  coach.  When  any  coach  or 

compartment  car  for  either  race  shall  be  completely  filled  at  a  sta- 
tion where  no  extra  coach  or  car  can  be  had,  and  the  increased  num- 
ber of  passengers  could  not  be  foreseen,  the  conductor  in  charge  of 
such  train  may  assign  and  set  apart  a  portion  of  a  car  or  compart- 
ment assigned  for  passengers  of  one  race  to  passengers  of  the  other 
race. 

1899.  c.  384,  s.  3. 

2622.  Penalty  for  failing  to  provide  separate  cars.  Any  rail- 
road company  failing  to  comply  in  good  faith  with  the  provisions 
of  the  three  preceding  sections  shall  be  liable  to  a  penalty  of  one 
hundred  dollars  per  day,  to  be  recovered  in  an  action  brought  against 
such  company  by  any  passenger  on  any  train  or  boat  of  any  rail- 
road or  steamboat  company  which  is  required  by  this  chapter  to  fur- 
nish separate  accommodations  to  the  races,  who  has  been  furnished 
accommodations  on  such  railroad  train  or  steamboat  in  only  a  car  or 
compartment  with  a  person  of  a  different  race  in  violation  of  law. 

1899,  c.  384,  s.  5. 

2623.  Must  check  baggage;  liable  for  loss.  A  check  shall  be 

aflixed  to  every  parcel  of  baggage  when  taken  for  transportation  by 
the  agent  or  servant  of  such  corporation,  if  there  is  a  handle,  loop 
or  fixture  so  that  the  same  can  be  attached  upon  the  parcel  or  bag- 
gage so  offered  for  transportation,  and  a  duplicate  thereof  given  to 
the  passenger  or  person  delivering  the  same  on  his  behalf;  and  if 
such  .check  be  refused  on  demand  the  corporation  shall  pay  to  such 
passenger  the  sum  of  ten  dollars,  to  be  recovered  in  a  civil  action; 
and  further,  no  fare  or  toll  shall  be  collected  or  received  from  such 
jiassenger,  and  if  such  passenger  shall  have  paid  his  fare  the  same 
shall  be  refunded  by  the  conductor  in  charge  of  the  train,  and  on 
producing  said  check,  if  his  baggage  shall  not  be  delivered  to  him, 
he  may,  by  an  action,  recover  the  value  of  said  trunk  or  baggage. 
Code,  s.  1970;  1871-2,  c.  138,  s.  36. 

2624.  Baggage  handled  carefully.  All  railroad  and  steamboat 

companies  shall  liandle  with  care  all  bag!;age  and  freights  placed 
with  them  for  transportation,  and  they  shall  be  liable  in  damages  for 
any  and  all  injuries  to  the  baggage  or  freight  of  persons  from  whom 
they  have  collected  fare  or  charged  freight,  while  the  same  is  under 
their  control ;  and  upon  proof  of  injury  to  baggage  or  freight  in  the 


1^024  EAILROADS— /X.  Passcu/crs.  Ch.   01 

jjossession  or  under  the  control  of  any  sucli  company,  it  shall  be  pre- 
sumed that  the  injury  was  caused  by  the  negligence  of  the  company. 

1897,  e.  46. 

2625.  Ticket  to  intoxicated  man  refused.  The  ticket  agent  of 

any   railroad,   steamboat   or  other   transportation   company   shall   at 
all  times  have  power  to  refuse  to  sell  a  ticket  to  any  person  applying 
for  the  same  who  may  at  the  time  be  intoxicated. 
1885,  c.  3.58. 

2626.  May  prevent  intoxicated  person  from  entering.  The  con- 
ductor, captain  ur  other  person  in  charge  of  any  railroad  car,  steam- 
boat, or  other  conveyance  for  the  use  of  the  traveling  public,  shall 
at  all  times  have  power  to  prevent  any  intoxicated  person  from  enter- 
ing such  car,  boat,  or  other  conveyance. 

1885,  e.  358,  s.  2. 

2627.  Unused  tickets  to  be  redeemed.  When  any  round-trip 

ticket  is  sold  by  a  railroad  or  transportation  company  it  shall  be  the 
duty  of  such  company  to  redeem  the  unused  portion  of  said  ticket 
by  allowing  to  the  holder  thereof  the  difference  between  the  cost 
thereof  and  the  price  of  a  one-way  ticket  between  the  stations  for 
which  such  round-trip  ticket  was  sold.  Whenever  any  one-way  or 
regular  ticket  is  sold  by  a  railroad  or  transportation  company,  and 
not  used  by  the  purchaser,  it  shall  be  the  duty  of  the  company  sell- 
ing the  ticket  to  redeem  it  at  the  price  paid  for  it.  All  railroad  and 
transportation  companies  shall  redeem  all  mileage  tickets  known  as 
five-hundred,  thousand  and  two-thousand  mile  tickets,  sold  by  them, 
if  presented  within  a  year  from  the  date  of  the  sale,  in  money,  when 
as  much  as  fifty  per  centum  of  such  ticket  has  been  used  by  the  pur- 
chaser, by  paying  the  same  price  per  mile  paid  for  it,  or  shall  allow 
the  original  holder  to  ride  it  out, 

1891,  c.  290;  1893,  c.  249;  1895,  e.  83,  ss.  2,  3;  1897,  c.  418. 

2628.  Injury  to  passengers  on  platform,  etc.  In  case  any  pas- 
senger on  any  railroad  shall  be  injnre(l  while  on  the  platform  of  a 
car  or  on  any  baggage,  wood  or  freight  car,  in  violation  of  the 
printed  regulations  of  the  company  posted  up  at  the  time  in  a  con- 
spicuous ]ilace  inside  its  passenger  cars  then  in  the  train,  such  com- 
pany shall  not  be  liable  for  the  injury:  Provided,  said  company 
at  the  time  furnish  room  inside  its  passenger  cars  sufficient  for  the 
proper  accommodation  of  its  passengers. 

Code,  s.  1978;  1871-2,  c.  138,  s.  42. 

2629.  Refusing  to  pay  fare,  may  eject.  Tf  any  passenger  shall 

refuse  to  pay  his  fare,  or  \-i(ilato  the  rules  of  llic  ciirjinralion,  it  sliall 


im;i'!)  RAILEOADS— /X.  Passengers.  Ch.   Gl 

l>i'  lawful  for  the  conductor  of  the  train  and  the  servants  of  the  cor- 
poration to  put  him  and  his  baggage  out  of  the  cars,  using  no  un- 
necessary force,  at  any  usual  stopping  place  or  near  any  dwelling- 
house,  as  the  condiTctor  shall  elect,  on  stopping  the  train. 
Code,  s.  19C2;  1871-2,  c.  138,  s.  34. 

X.     Freight. 

2630.  Freight  rates  posted.  It  shall  be  the  duty  of  all  railroad 
and  other  transportation  companies  to  kee])  posted  in  a  conspicuous 
place  in  their  depots  or  places  where  freight  is  received  for  shipment 
a  list  of  its  charges  for  carrying  freight,  specifying  name  of  place, 
class  of  freight  and  charge  for  carrying  the  same.  Such  charges 
shall  not  be  increased  without  giving  fifteen  days'  notice,  and  the 
company  represented  by  any  agent  refusing  to  comply  with  this  sec- 
tion shall  be  liable  to  a  penalty  of  not  less  than  fifty  nor  more  than 
one  hundred  dollars. 

Code,  s.  1965;  1879,  e.  182,  s.  2. 

2631.  Penalty  for  failure  to  receive.  Agents  or  other  oriicers  of 

railroads  and  other  transportation  companies  whose  duty  it  is  to 
receive  freights  shall  receive  all  articles  of  the  nature  and  kind 
received  by  such  company  for  transportation  whenever  tendered  at 
a  regiilar  depot,  station,  M'harf  or  boat  landing,  and  every  loaded 
car  tendered  at  a  sidetrack,  or  any  warehouse  connected  with  the 
railroad  by  a  siding,  and  shall  forward  the  same  by  the  route  selected 
by  the  person  tendering  the  freight  under  existing  laws ;  and  the 
transportation  company  represented  by  any  person  refusing  to  re- 
ceive such  freight  shall  forfeit  and  pay  to  the  party  aggrieved  the 
sum  of  fifty  dollars  for  each  day  said  company  refuses  to  receive 
said  shipment  of  freight,  and  all  damages  actually  sustained  by  rea- 
son of  the  refusal  to  receive  freight.  If  such  loaded  car  be  tendered 
at  any  siding  or  workhouse  at  which  there  is  no  agent,  notice  shall 
be  given  to  an  agent  at  the  nearest  regular  station  at  which  there 
is  an  agent  that  such  car  is  loaded  and  ready  for  shipment. 

Code,  s.  1964;  1903,  cc.  444,  693. 

2632.  Failure  to  transport  in  reasonable  time;  reasonable  time 

defined;  forfeiture.  It  shall  be  unlawful  for  any  railroad  couipany, 
steamboat  coni]iany,  exj^ress  company  or  other  transportation  com- 
pany doing  business  in  this  state  to  omit  or  neglect  to  transport 
within  a  reasonable  time  any  goods,  merchaudise  or  articles  of 
\alue  received  by  it  for  shipment  and  billed  to  or  from  any  place 
in  the  state  of  jSTorth  Carolina,  unless  otherwise  agTced  upon  be- 
tween   the   company    and    the    shipper   or    unless    same    be    burned, 

Rev.  Vol.  I— 40  78"> 


2C:32  RAILEOADS— A'.  Freight.  Cli.  (il 

stolen  or  otherwise  destroyed,  or  unless  otherwise  provided  by  the 
N"orth  Carolina  corporation  commission.  Each  and  every  company 
violating  any  of  the  provisions  of  this  section  shall  forfeit  to  the  party 
aggrieved  the  sum  of  twenty-five  dollars  for  the  first  day  and  five 
dollars  for  each  succeeding  day  of  such  unlawful  detention  or  neg- 
lect where  such  shipment  is  made  in  carload  lots,  and  in  less  quanti- 
ties there  shall  be  a  forfeiture  in  like  manner  of  twelve  and  fifty  one- 
hundredth  dollars  for  the  first  day  and  two  and  fifty  one-hundredth 
dollars  for  each  succeeding  day:  Provided,  the  forfeiture  shall  not 
be  collected  for  a  period  exceeding  thirty  days.  In  reckoning  what 
is  reasonable  time  for  such  transportation  it  shall  be  considered  that 
such  transportation  company  has  transported  freight  within  a  rea- 
sonable time  if  it  has  done  so  in  the  ordinary  time  required  for  trans- 
porting such  articles  of  freight  between  the  receiving  and  shipping 
stations;  and  a  delay  of  two  days  at  the  initial  point  aud  forty -eight 
hours  at  one  intermediate  point  for  each  hundred  miles  of  distance 
or  fractions  thereof  over  which  said  freight  is  to  be  transported  shall 
not  be  charged  against  such  transportation  company  as  imreasonable 
and  shall  be  held  to  be  prima  facie  reasonable,  and  a  failure  to  trans- 
port within  such  time  shall  be  held  prima  facie  unreasonable. 
1903,  e.  590,  s.  3;  1905,  c.  545. 

2633,  Paid  at  classified  rates;  penalty  for  overcharge.  All 

common  carriers  doing  business  in  tliis  state  shall  settle  their  freight 
charges  according  to  the  rate  stipulated  in  the  bill  of  lading,  pro- 
vided the  rate  therein  stipulated  be  in  conformity  with  the  classifica- 
tions and  rates  made  and  filed  with  the  interstate  commerce  commis- 
sion in  ease  of  shipments  from  without  the  state  and  with  those  of 
the  corporation  commission  of  this  state  in  case  of  shipments  wholly 
within  this  state,  by  which  classifications  and  rates  all  consignees 
shall  in  all  eases  be  entitled  to  settle  freight  charges  with  such  car- 
riers ;  and  it  shall  be  the  duty  of  such  common  carriers  to  inform  any 
consignee  or  consignees  of  the  correct  amount  due  for  freight  accord- 
ing to  such  classification  and  rates,  and  upon  payment  or  tender  of 
the  amount  due  on  any  shipment  which  has  arrived  at  its  destination 
according  to  such  classification  and  rates  such  common  carrier  shall 
deliver  the  freight  in  question  to  consignee  or  consignees,  and  any 
failure  or  refusal  to  comply  with  the  provisions  hei'eof  shall  subject 
such  carrier  so  failing  or  refusing  to  a  penalty  of  fifty  dollars  for 
each  such  failure  or  refusal,  to  be  recovered  by  any  consignee  or  con- 
signees aggTieved  by  any  suit  in  any  court  of  competent  jurisdiction. 
1905,  c.  330. 

2634.  Time  within  which  loss  or  damage  must  be  paid;  penalty; 
amount  of  recovery;  actions  united;  remedy  cumulative.  F.very 


2634  RAILKOADS— Z.  Freight.  Cli.   fil 

claim  for  loss  of  or  damage  to  property  while  in  possession  of  a  corn- 
mon  carrier  shall  be  adjusted  and  paid  within  sixty  days  in  case  of 
shipments  wholly  M'ithin  this  state,  and  within  ninety  days  in  case  of 
shipments  from  without  the  state,  after  the  filing  of  snch  claim  with 
the  agent  of  snch  carrier  at  the  point  of  destination  of  such  shipment 
or  point  of  delivery  to  another  common  carrier:  Provided,  that  no 
such  claim  shall  be  filed  until  after  the  arrival  of  the  shipment,  or 
of  some  part  thereof,  at  the  point  of  destination,  or  until  after  the 
lapse  of  a  reasonable  time  for  the  arrival  thereof.  In  every  case 
such  common  carrier  shall  be  liable  for  the  amount  of  such  loss  or 
damage,  together  with  interest  thereon  from  the  date  of  the  filing  of 
the  claim  therefor  until  the  payment  thereof.  Failure  to  adjust 
and  pay  such  claim  within  the  periods  respectively  herein  prescribed 
shall  subject  each  common  carrier  so  failing  to  a  penalty  of  fifty  dol- 
lars for  each  and  every  such  failure,  to  be  recovered  by  any  consignee 
aggrieved  in  any  court  of  competent  jurisdiction:  Provided,  that  im- 
less  such  consignee  recover  in  such  action  the  full  amount  claimed, 
no  penalty  shall  be  recovered,  but  only  the  actual  amount  of  the  loss 
or  damage,  with  interest  as  aforesaid.  Causes  of  action  for  the  recov- 
ery of  the  possession  of  the  property  shipped,  for  loss  or  damage 
thereto  and  for  the  penalties  herein  provided  for  may  be  united  in 
the  same  complaint. 
1905,  c.  330,  ss.  2,  4,  5. 

2635.  Existing  remedies  continue.  The  preceding  section  shall 
not  deprive  any  consigiiee  of  any  rights  or  remedies  now  existing 
against  common  carriers  in  regard  to  freight  charges  or  claims  for  loss 
or  damage  to  freight,  but  shall  be  deemed  and  held  as  creating  an 
additional  liability  upon  said  common  carrier. 

1905,  c.  330,  s.  5. 

2636.  Carrier's  right  against  other  carrier.  Any  common  car- 
rier, upon  complying  with  the  provisions  of  the  two  preceding  sec- 
tions, shall  have  all  the  rights  and  remedies  herein  provided  for 
against  a  common  carrier  from  which  it  receives  the  freight  in  ques- 
tion. 

1905,  c.  330,  s.  3. 

2637.  Unclaimed  freight  sold.  Every  railroad,  steamboat,  ex- 
press or  transportation  company  which  shall  have  had  unclaimed 
freight,  not  perisliable,  in  its  possession  for  a  period  of  six  months, 
may  proceed  to  sell  the  same  at  public  auction,  and  out  of  the  pro- 
ceeds may  retain  the  charges  of  transportation  and  storage  of  such 
freight  and  the  expenses  of  advertising  and  sale  thereof ;  but  no  such 
sale  shall  be  made  until  the  expiration  of  four  weeks  from  the  first 
publication  of  notice  of  such   sale   in  a  state  paper  and   also   in  a 


k 


2637  RAILRO.IDS— X.  Freight.  Cli.  CI 

newspaper  published  at  or  nearest  the  place  at  which  such  freight 
was  directed  to  be  left,  and  also  at  the  place  where  such  sale  is  to 
take  place.  The  expenses  incurred  for  advertising  shall  be  a  lien 
upon  such  freight  in  a  ratable  jiroportion  according  to  the  value  of 
each  article,  package  or  parcel,  if  more  than  one. 

Code,  s.  1985;  1871-2,  c.  138,  s.  48. 

2638.  Unclaimed  perishable  freight.   In  case  such  unclaimed 

freight  shall  in  its  nature  be  perishable,  then  the  same  may  be  sold 
as  soon  as  it  can  be,  on  giving  the  notice  required  in  the  preceding 
section,  after  its  receipt  at  the  place  where  it  was  directed  to  be 
left. 

Code,  s.  1986:  1871-2,  c.  138,  s.  49. 

2639.  Funds  from  unclaimed  freight  go  to  University.  Such 

railroad,  steamboat,  express  or  transportation  company  shall  make 
an  entry  of  the  balance  of  the  proceeds  of  the  sale,  if  any,  of  each 
parcel  of  freight  owned  by  or  consigned  to  the  same  person,  as  near 
as  can  be  ascertained,  and  at  any  time  within  five  years  thereafter 
shall  refund  any  surplus  so  retained  to  the  owner  of  such  freight, 
his  heirs  or  assigns,  on  satisfactory  proof  of  such  ownership ;  if  no 
person  shall  claim  such  surplus  within  five  years,  said  surplus  shall 
be  paid  to  the  university. 
Code,  s.  1987;  1871-2,  c.  138,  s.  50. 

2640.  Through  freight  and  travel.  The  directors  representing 
the  stock  held  in  the  various  railroad  corporations  are  hereby  aiithor- 
ized  and  empowered  to  enter  into  such,  agreements  and  terms  with 
each  other  as  to  secure  through  freight  and  travel  without  the 
expense  of  transfer  of  freight,  or  breaking  the  bulk  thereof,  at  dif- 
ferent points  along  the  lines,  and  for  this  purpose  may  use  the  road 
or  roads  of  said  corporations  or  companies,  and  rolling  stock  thereof, 
on  such  terms  as  may  be  agi-eed  upon  by  the  directors  of  said  corpo- 
rations or  companies. 

Code,  s.  1995;  1866-7,  c.  105. 

2641.  Charges    on    partial    freight    deliveries.  Whenever  any 

frciglit  of  any  kind  shall  be  received  by  any  common  carrier  in  this 
state  to  be  delivered  to  any  consignee  in  this  state,  and  a  portion  of 
the  same  .shall  not  have  been  received  at  the  place  of  destination,  it 
•shall  not  be  lawful  for  the  carrier  to  demand  any  part  of  the  charges 
for  freight  or  transportation  due  for  such  portion  of  the  shipment 
as  shall  not  have  reached  the  place  of  destination.  The  carrier  shall 
be  required  to  deliver  to  the  consignee  such  portion  of  the  consign- 
ment as  shall  have  been  received  upon  the  payment  or  tender  of 
the   freiglit  cliargcs   due   upon    such    portion.      lint  notliing   in    this 


i'(in  RAILROADS— X.  Freight.  Cli.  61 

-cition  shall  be  construed  as  interfering  with,  or  depriving  a  con- 
-ianor,  or  other  person  having  authority,  of  his  rights  of  stoppage  in 

I  ran  situ. 
1S!)3,  c.  495. 

XI.        OvEECriARCiES. 

2642.  Not  to  receive  more  than  tariff  rate.  A'o  railroad,  steam- 
in 'at,  express  or  other  transportation  company  engaged  in  the  carriage 
of  freight,  and  no  telegraph  company  or  telephone  company  shall  de- 
mand, collect  or  receive  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  property  or  transmission  of  messages,  more 
than  the  rates  appearing  in  the  printed  tariif  of  such  company  in 
force  at  the  time  such  service  is  rendered,  or  more  than  is  allowed 
by  law. 

1903,  c.  590. 

2643.  Overcharge  on  tariff  rates  refunded.  In  case  of  any  over- 
charge, contrary  to  the  preceding  section,  the  person  aggrieved  may 
file  with  any  agent  of  the  company  collecting  or  receiving  greater 
compensation  than  the  amount  allowed  in  the  preceding  section  a 
written  demand,  supported  by  a  paid  freight  bill  and  an  original 
bill  of  lading  or  duplicate  thereof  for  refund  of  overcharge,  and  a 
maximum  period  of  sixty  days  shall  be  allowed  such  company  to 
pay  claims  filed  under  this  section. 

1903,  c.  590,  s.  2. 

2644.  Penalty  for  failure  to  refund  overcharge.  Any  company 

failing  to  refund  such  overcharge,  within  the  time  allowed,  shall 
forfeit  to  the  party  aggrieved  the  sum  of  twenty-five  dollars  for  the 
first  day  and  five  dollars  per  day  for  each  day's  delay  thereafter 
until  said  overcharge  is  paid,  together  with  all  costs  incurred  by  the 
party  aggi'ieved:  Provided,  the  total  forfeiture  shall  not  exceed  one 
hundred  dollars. 

1903.  c.  590,  s.  2. 

Xir.      Miscellaneous. 

2645.  Live  stock  killed,  negligence  presumed.  When  any  cattle 

or  other  live  stock  shall  be  killed  or  injured  bv  the  engines  or  cars 
running  iijion  any  railroad,  it  shall  be  prinui  facie  evidence  of  neg- 
ligence on  the  part  of  the  company  in  any  action  for  damages  against 
such  company:  Provided,  no  person  shall  be  allowed  the  benefit  of 
this  section  imless  he  shall  bring  his  action  within  six  months  after 
his  cause  of  action  shall  have  accrued. 
Code,  a.  2326;  1856-7,  e,  7. 

2646.  Injuries  by  negligence  of  fellow-servants;  defective  ma- 
chinery. Any  servant  or  employee  of  any  railroad  company  ojiernt- 


2646  RAILEOADS— X//.  Miscellaneous.  Ch.  61 

ing  in  this  state  who  shall  suffer  injury  to  his  person,  or  the  per- 
sonal representative  of  any  such  servant  or  employee  who  shall  have 
suffered  death  in  the  course  of  his  services  or  employment  with  such 
company  by  the  negligence,  carelessness  or  incompetence  of  any 
other  servant,  employee  or  agent  of  the  company,  or  by  any  defect 
in  the  machinery,  ways  or  appliances  of  the  company,  shall  be  enti- 
tled to  maintain  an  action  against  such  company.  Any  contract  or 
agreement,  expressed  or  implied,  made  by  any  employee  of  such  com- 
pany to  waive  the  benefit  of  this  section  shall  be  null  and  void. 
1897   (Pr.),  c.  56. 

2647.  How  action  brought  for  penalties.  All  penalties  imposed 

by  this  chapter  may,  unless  otherwise  provided,  be  sued  for  in  tlie 
name  of  the  state. 

Code,  s.  1976;  188.5,  e.  221. 

2648.  Officials  to  account  to  successors.  The  president  and 
directors  of  the  several  railroads,  and  all  ]icrsons  acting  under  them, 
are  hereby  required  upon  demand  to  accoimt  with  the  president  and 
directors  elected  or  appointed  to  succeed  tliem,  and  shall  transfer  to 
them  forthwith  all  the  money,  books,  papers,  choses  in  action,  prop- 
erty and  effects  of  every  kind  and  description  belonging  to  sucli 
company. 

Code,  s.  2001;   1870-1,  c.  72,  ss.  1,  3. 


Note.     Foi-  otlier  slatutps  aflVctinfj  railro.Tds,  sec  Corporation  Commission. 


CHAPTER  62. 
REGISTER  OF  DEEDS. 

Sections. 
I.     Office  of,  2649—26.54 

n.     Duties  of,  2655—2669 

I.     Office  of. 

2649.  Seal  of  office.  The  office  of  register  of  deeds  for  every 
county  in  tlio  state  shall  have  and  use  an  official  seal,  which  seal  shall 
be  provided  by  the  county  commissioners  of  the  several  counties,  and 
sliall  be  of  the  same  size  and  design  as  the  seals  now  used  by  the  clerk 
of  the  su])erior  court,  witli  tlie  words  "Office  of  Register  of  Deeds,"  tiie 
name  of  the  county  and  the  lett^^rs  "Nortli  Carolina"  surrounding  the 
figures. 

ISO."),  c.  iin.  s.  1. 

790 


i'(;.-.0  REGISTER  OF  DEEDS—/.  Office  of.  Ch.   (52 

2650.  Election  for.  In  each  county  there  shall  be  elected  bien- 
nially by  tlie  qualified  voters  thereof,  as  provided  for  the  election 
of  members  of  the  general  assembly,     *     *     *     a  register  of  deeds. 

Const.,  Art.  VII,  s.  1. 

2651.  Vacancy  filled  by  commissioners.   When  a  vacancy  oc- 

cnrs  from  any  cause  in  the  office  of  register  of  deeds,  the  board  of 
county  commissioners  shall  fill  snch  vacancy  by  the  appointment  of 
a  successor  for  the  unexpired  term,  who  shall  qualify  and  give  bond 
as  required  by  law. 

Code,  s.  3649  ;  1868,  c.  35,  s.  4. 
Note.     See  also  s.  1321. 

2652.  Oath  of  office.  The  register  of  deeds  shall  take  the  oath  of 
office  on  the  first  Monday  of  December  next  after  his  election  before 
the  board  of  county  commissioners. 

Code.  s.  ;iU47.;   186S,  c.  3.5,  s.  2;  1876-7.  c.  276,  s.  5. 

2653.  Where  kept.  The  register  shall  keep  bis  office  at  the  court- 
house unless  the  board  of  county  commissioners  shall  deem  it  im- 
practicable. .  -'' 

Code,  s.  36.50;  1868,  c.  35,  s.  5. 

2654.  When  open.  The  board  of  county  commissioners  may  fix 
by  order,  to  be  entered  on  their  records,  what  days  of  each  week, 
and  at  what  hours  of  each  day,  the  register  of  deeds  shall  attend 
at  his  office  in  person  or  by  deputy,  and  he  shall  give  his  attendance 
accordingly. 

Code,  s.  3651 ;  1868,  c.  35,  s.  6. 

II.     Duties  of. 

2655.  Call  on  clerk  for  instruments.  The  register  of  deeds  shall 
at  least  once  a  week  aj^ply  to  the  clerk  of  the  superior  court  of  his 
county  for  all  instruments  of  writing  admitted  to  probate,  and  then 
remaining  in  the  office  of  such  clerk  for  I'egistration,  and  also  for  all 
fees  for  registration  diie  thereon ;  which  fees  the  clerk  of  the  supe- 
rior court  shall  receive  for  the  register. 

Code,  s.  3652;  1868,  c.  35,  s.  7. 

2656.  Proceed  against  clerk  for  failure  to  deliver  papers.  In 

ca.se  the  clerk  fails  to  deliver  such  instriuneiits  of  writing,  and  pay 
over  such  fees  as  are  ijrescribed  in  the  preceding  section,  on  appli- 
cation of  the  register,  the  clerk  shall  forfeit  and  pay  to  the  register 
one  hundred  dollars  for  every  such  failure;  for  Avhich  sum  judg- 
ment may  be  entered  at  any  time  by  the  judge  of  the  superior  court, 


2G.JG  REGISTER  OF  DEEDS—//.  Duties  of.  CIi.   (ii- 

on  motion  in  behalf  of  the  register,  on  a  notice  of  ten  davs  thereof 
to  the  clerk. 

Code,  s.  305.3;   1808,  c.  35,  s.  S. 

2657.  Certify  and  register  copies.  When  a  .k-ed,  mortgage  w 

other  conveyance  conveying  real  estate  situate  in  two  or  more  coun- 
ties is  presented  for  registration  duly  probated  and  a  copy  thereof 
is  presented  with  the  same,  the  register  shall  compare  the  copy  with 
the  original,  and  if  it  be  a  true  copy  thereof  he  shall  certify  the 
same,  and  thereupon  the  register  shall  endorse  the  original  deed  or 
conveyance  as  diily  registered  in  his  county,  designating  the  book 
in  which  the  same  is  registered  and  deliver  the  original  deed  to  the 
jiarty  entitled  thereto  and  register  the  same  from  the  certified  copy 
thereof  to  be  retained  by  him  for  that  purpose. 
1899,  c.  302. 

2658.  To  register  instruments  within  what  time.  The  regis- 
ter of  deeds  shall  register  all  instruments  in  writing  delivered  to  him 
for  registration  within  twenty  days  after  such  delivery,  except  mort- 
gages and  deeds  in  trust,  or  other  instruments  made  to  secure  the 
payment  of  money,  which  he  shall  register  forthwith  after  delivery 
to  him.  lie  shall  indorse  on  each  deed  in  trust  and  mortgage  the 
day  on  which  it  is  presented  to  him  for  registration,  and  such  in- 
dorsement shall  be  entered  on  his  books  and  form  a  part  of  the  regis- 
tration, and  he  shall  register  such  deeds  in  trust  and  mortgages  in 
the  order  of  time  in  which  they  are  presented  to  him. 

Code,  s.  3654;  E.  C,  c.  37,  s.  23;  1868,  c.  35,  s.  n. 

2659.  Bond  liable  for  failure  to  register.  In  ease  ..f  his  fail- 
ure to  register  any  deed  or  other  instrument  within  the  time  and  in 
the  manner  required  by  the  preceding  section,  the  register  shall 
be  liable,  in  an  action  on  his  otticial  bond,  to  the  party  injured  liy 
such  delay. 

Code,  s.  3000:   1808,  c.  35,  s.  10. 

2660.  To  file  papers  alphabetically.  The  register  shall  keep  in 
files  alphabetically  labeled  all  original  instruments  delivered  to  him 
for  registration,  and  on  application  for  such  originals  by  any  per- 
son entitled  to  their  custody,  he  shall  deliver  the  same. 

Code,  s.  3601;  1868,  c.  35,  s.  11. 

2661.  Transcribe  and  index  books  on  order.    The  iward  of 

county  conuuissioners,  A\hen  they  deem  it  necessary,  may  direct  the 
register  of  deeds  to  transcribe  and  index  such  of  the  books  in  the 
register's   office   as   from   decay  or   other  cause   may   require   to   be 

triinsci'ilicil   and    indexed.      They  may  allow  him   such  ci)m|icnsal  inn 


26G1  REGISTEE  OF  DEEDS—//.  Duties  of.  Ch.   C2 

at  the  expense  of  the  county  for  this  work  as  they  think  just.  The 
books  when  so  transcribed  and  approved  by  the  board  shall  be  public 
records  as  the  original  books,  and  copies  therefrom  may  be  certified 
accordingly. 

Code,  s.  3062;   1S08,  e.  35,  s.  12. 

2662.  Number  of  survey  in  grants  registered.  The  register  of 

deeds  in  each  county  in  this  state,  when  gTants  have  been  registered 
without  the  number  of  the  tract  or  survey,  shall  place  in  the  registra- 
tion of  the  grants  the  number  of  the  tract  or  survey,  when  the  same 
shall  be  furnished  him  by  the  grantee  or  other  person ;  and  in  regis- 
tering any  grant  he  shall  register  the  number  of  the  tract  or  survey. 

1889,  c.  522,  s.  2. 

Note.     For  requirement  to  register  surveys,  see  s.  1722  et  seq. 

2663.  Certificate  of  survey  to  be  registered.   It  shall  be  the 

duty  of  the  register  of  deeds  in  each  county,  when  any  grant  is  pre- 
sented for  registration  with  a  certificate  of  survey  attached,  to  regis- 
ter such  certificate  of  survey,  together  with  all  endorsements  thereon, 
together  with  said  grant,  and  a  record  of  any  certificate  of  survey  so 
made  shall  be  read  in  evidence  in  any  action  or  proceeding :  Pro- 
vided, the  failure  to  register  such  certificate  of  survey  shall  not  invali- 
date the  registration  of  the  gTant. 
1905,  c.  243. 

2664.  Keep  general  index.  The  board  of  county  commissioners, 
at  the  ex])ense  of  the  county,  shall  cause  to  be  made  and  consolidated 
into  one  book,  a  general  index  of  all  the  deeds  and  other  documents 
in  the  register's  office,  and  the  register  shall  afterwards  keep  up  such 
index  without  any  additional  compensation. 

Code,  s.  3663;  1868,  c.  35,  s.  13. 

2665.  Index  instruments.  The  register  of  deeds  shall  provide 
and  keep  in  his  office  full  and  complete  alphabetical  indexes  of  the 
names  of  the  parties  to  all  liens,  grants,  deeds,  mortgages,  bonds  and 
other  instruments  of  writing  required  or  authorized  to  be  registered ; 
such  indexes  to  be  kept  in  well-bound  books,  and  .shall  state  in  full 
the  names  of  all  the  parties,  whether  grantors,  grantees,  vendors, 
vendees,  obligors  or  obligees,  and  shall  be  indexed  and  cross-indexed, 
within  twenty-four  hours  after  registering  any  instrument,  so  as  to 
show  the  name  of  each  party  under  the  appropriate  letter  of  the 
alphabet ;  and  reference  shall  be  made,  opposite  each  name,  to  the 
page,  title  or  number  of  the  book  in  which  is  registered  any  instru- 
ment. 

Code,  s.  3664;   1899,  c.  501;   1876-7,  c.  93,  s.  1. 

Note.     Faihue  to  index,  misdemeanor,  see  Crimes,  s.  3600. 

Surveys  to  be  indexed,  see  s.  1722. 


2G0G  REGI8TER  OF  DEED.S— //.  Duties  of.  Ch.  62 

2666.  Clerk  to  board  of  commissioners.  The  register  of  deeds 

is  ex  officio  clerk  of  the  board  of  county  commissioners,  and  as  such 
shall  perform  the  duties  imposed  by  law  or  by  order  of  the  said 
board. 

Code,  s.  3C5G;  1868,  c.  35,  s.  15;  Const,,  Art.  VII,  s.  2. 

Note.     For  duty  in  regard  to  official  reports,  see  s.  919. 

For  general  duty  as  clerk  of  board,  see  ss.  1324-1326. 

2667.  Serve  certain  notices  by  mail.  The  register  of  deeds  shall 

serve  by  mail  all  notices  issued  by  the  board  of  county  commis- 
sioners to  justices  of  the  peace,  road  overseers  and  school  committee- 
men, in  lieu  of  the  service  by  the  sheriff,  and  shall  receive  as  his 
compensation  his  actual  expenses  for  mailing,  and  nothing-  more. 
Code,  s.  3657;  1879,  c.  328,  ss.  1,  3. 

2668.  Make  out  tax  lists.  The  register  shall  make  out  the  tax 
lists  as  directed  by  law,  under  the  supervision  of  the  board  of  county 
commissioners. 

Code,  s.  3G58;  1868,  c.  35,  s.  16. 

2669.  Omitted   duties,   how   performed.  Whenever,   u])on   the 

termination  for  any  cause  of  the  term  of  office  of  the  register  of 
deeds,  it  appears  that  he  has  failed  to  perform  any  of  the  duties  of 
his  office,  the  board  of  comanissioners  shall  cause  the  same  to  be  per- 
formed by  another  person  or  the  successor  of  any  such  defaulting 
register.  Such  person  or  successor  shall  receive  for  his  compensa- 
tion the  fees  allowed  for  such  services,  and  if  any  portion  of  the 
compensation  has  been  paid  to  such  defaulting  register,  the  same 
may  be  recovered  by  the  board  of  county  commissioners,  by  suit  on 
his  official  bond,  for  the  benefit  of  the  county  or  person  injured 
thereby. 

Code,  s.  3655;  1868,  c.  35,  s.  14. 


Note.     Failure  to  perform  duty  a  misdemeanor,  see  ss.  3592,  3599. 
Failure  to  keep  index,  misdemeanor,  see  s.  3600. 
Entry-taker  ex  officio,  see  Grants,  s.  1701. 
County  ranger  ex  oflicio,  see  Strays. 

For  duties  in  regard  to  marriage  lieen.se,  see  Marriage,  ss.  2090.  2il91,  2092. 
For  duty  in  regard  to  mortgage  given  by  clerk  of  superior  court  in  lieu  of  bond, 
see  Bonds,  s.  268. 

Constables'  bonds  registered  by,  see  Bonds,  s.  302. 

Coroners'  bonds  registered  by,  see  Bonds,  s.  300. 

For  duties  in  regard  to  elections,  see  Elections. 

For  duty  to  record  appointments  of  deputy  clerks,  see  s.  899. 

For  registration  of  report  establishing  dividing  fences,  sec  s.  1668. 

For  registration  of  timber  trademarks,  sec  s.  ,3024. 

For  duty  as  to  official  reports,  see  s.  919. 


2070  KELIGIOUS  SOCIETIES.  Ch.  (J3. 


CHAPTEK  63. 
RELIGIOUS  SOCIETIES. 

(Sections  2670—2674.) 

2670.  May  appoint  trustees.  The  conference,  synod,  conven- 
tion or  other  eeelesiastieal  body,  representing  any  church  or  relig- 
ious denomination  within  the  state,  as  also  the  religious  societies  and 
congregations  within  the  state,  may  from  time  to  time  and  at  any 
time,  appoint  in  such  manner  as  such  body,  society  or  congregation 
may  deem  proper,  a  suitable  number  of  persons  as  trustees  for 
such  church,  denomination,  religious  society,  or  congregation,  who 
and  their  successors  shall  have  power  to  receive  donations,  and  to 
purchase,  take  and  hold  property,  real  and  personal,  in  trust  for 
such  church  or  denomination,  religious  society  or  congregation. 

Code,  s.  36G7;  R.  C,  c.  97,  s.  3;  1796,  c.  457,  s.  1;  1844,  c.  47;  1848,  c.  76. 

2671.  May  remove  trustees.  The  body  appointing  may  remove 
such  trustees  or  any  of  them,  and  fill  all  vacancies  caused  by  death 
or  otherwise;  and  the  said  trustees  and  their  successors  may  sue  and 
be  sued  in  all  proper  actions,  for  or  on  account  of  the  donations  and 
property  so  held  or  claimed  by  them,  and  for  and  on  accoimt  of  any 
matter  relating  thereto.  And  they  shall  be  accountable  to  the  said 
churches,  denominations,  societies  and  congregations  for  the  use  and 
management  of  said  property,  and  shall  surrender  it  to  any  person 
authorized  to  demand  it. 

Code,  s.  3608;  R.  C,  c.  97,  s.  4;  1796,  c.  457,  ss.  2,  3;  1844,  c.  47. 

2672.  Title  to  lands  to  vest  in  trustees,  or  in  societies.  All 

glebes,  lands  and  tenements,  heretofore  purchased,  given,  or  devised 
for  the  support  of  any  particular  ministry,  or  mode  of  worship,  and 
all  churches  and  other  houses  built  for  the  purpose  of  public  wor- 
ship, and  all  lands  and  donations  of  any  kind  of  property  or  estate 
that  have  been  or  may  be  given,  granted  or  devised  to  any  church 
or  religious  denomination,  religious  society  or  congregation  within 
the  state  for  their  respective  use,  shall  be  and  remain  forever  to  the 
use  and  occupancy  of  that  church  or  denomination,  society  or  con- 
gregation, for  which  said  glebes,  lands,  tenements,  property  and 
estate  were  so  purchased,  given,  granted  or  devised,  or  for  which  the 
said  churches,  chapels  or  other  houses  of  public  worship  were  built; 
and  the  estate  therein  shall  be  deemed   and  held   to   be   absolutely 

795 


2072  RELIGIOUS  SOCIETIES.  Cli.  63 

vested,  as  between  the  parties  thereto,  in  the  trustees  respectively 
of  the  said  churches,  denominations,  societies  and  congregations,  for 
their  several  use,  according  to  the  intent  expressed  in  the  conveyance, 
gift,  gTant  or  will ;  and  in  case  there  shall  be  no  trustees,  then  in 
the  said  churches,  denominations,  societies  and  congregations,  re- 
spectively, according  to  such  intent. 

Code,  s.  3665;  R.  C,  c.  97,  s.  1;  1776,  c.  107;  1796,  c.  457,  s.  4. 

2673.  How  to  convey  land.  The  trustees  of  any  religious  body 
may  mortgage  or  sell  and  convey  in  fee  simple  any  land  owned  by 
such  body,  when  directed  so  to  do  by  such  church,  congTegation. 
society  or  denomination,  or  its  committee,  board  or  body  having 
charge  of  its  finances,  and  all  such  conveyances  so  made  or  hereto- 
fore made,  or  hereafter  to  be  made  shall  be  effective  to  pass  said 
land  in  fee  simple  to  the  purchaser  or  to  the  mortgagee  for  the  pur- 
poses in  such  conveyances  or  mortgage  expressed ;  and  they  may  sell 
or  mortgage  its  personal  property. 

1885,  c.  384;  1889,  c.  484. 

2674.  House  on  vacant  land  vests  title.  AH  houses  and  edifices 

erected  for  public  religious  worship  on  vacant  lands,  or  on  lands 
of  the  state  not  for  other  purposes  intended  or  appropriated,  together 
with  two  acres  adjoining  the  same,  shall  hereafter  be  held  and  kept 
sacred  for  divine  worship,  to  and  for  the  use  of  the  society  by  which 
the  same  was  originally  established. 

Code,  s.  3666;  R.  C,  c.  97,  s.  2;  1778,  c.  132,  s.  6. 


Note.     For  disturbing  religious  congregation,  see  s.  3706. 
For  obstructing  way  to  church,  see  s.  3776. 

For  exhibition  of  stud-horse,  or  jack,  or  natural  and  artificial  curiosities  near 
churches,  see  s.  3705. 


CHAPTER  64. 
RESTORATION  TO  CITIZENSHIP. 

(Sections  267.5—2680.) 

2675.  Petition  for.  Any  person  convicted  of  an  infamous  crime, 
wlicrcliy  the  riglils  of  citizenship  arc  forfeited,  desiring  to  be  restored 
to  the  same,  shall  file  his  petition  in  the  su]ierior  court,  setting  forth 
his  conviction  and  the  punishment  inflicted,  his  place  or  places  of 
residence,  his  occupation  since  his  conviction,  the  meritcu-ious  causes 


2075  EESTORATIOX  TO  CITIZENSHIP.  Ch.   64 

which,  in  his  opinion,  entitle  him  to  be  restored  to  his  forfeited 
rights,  and  that  he  has  not  before  been  restored  to  the  lost  rights  of 
citizenshiij. 

Code,  ss.  2938,  2940;  E.  C,  c.  58.  ss.  1,  3;  1840,  c.  3G,  s.  4. 

2676.  When  and  where  petition  for,  filed.  At  any  time  after  the 

expiration  of  four  years  from  the  date  of  conviction,  the  petition  may 
be  filed  in  the  superior  court  of  the  county  in  which  the  applicant  is 
at  the  time  of  filing  and  has  been  for  five  years  next  preceding  a 
bona  fide  resident,  or  in  the  superior  court  of  the  county,  at  term, 
where  the  indictment  M'as  found  upon  which  the  conviction  took 
place;  and  in  case  the  petitioner  may  have  been  convicted  of  an 
infamous  crime  more  than  once,  and  indictments  for  the  same  may 
have  been  found  in  different  counties,  the  petition  shall  be  filed 
in  the  superior  court  of  that  county  where  the  last  indictment  was 
found. 

Code,  ss.  2940,  2941;  1897,  c.  110;  R.  C,  c.  58,  ss.  3,  4;  1840,  c.  36,  s.  3. 

2677.  Notice  given.  Upon  filing  the  petition  the  clerk  of  the 
court  shall  advertise  the  substance  thereof,  at  the  courthouse  door 
of  his  county,  for  the  space  of  three  months  next  before  the  term 
when  the  petitioner  proposes  that  the  same  shall  be  heard. 

Code,  s.  2938;  E.  C,  e.  58,  s.  1;  1840,  c.  36. 

2678.  Hearing  and  evidence.  The  petition  shall  be  heard  by  the 
judge  at  term,  at  which  hearing  the  court  shall  examine  all  proper 
testimony  which  may  be  offered,  either  by  the  petitioner  as  to  the 
facts  set  forth  in  his  petition,  or  by  any  one  who  may  oppose  the  grant 
of  his  prayer.  The  petitioner  shall  also  prove  by  five  respectable  wit- 
nesses, who  have  been  acquainted  with  the  petitioner's  character  for 
three  years  next  preceding  the  filing  of  his  petition,  that  his  charac- 
ter for  truth  and  honesty  during  that  time  has  been  good ;  but  no 
deposition  shall  be  admissible  for  this  purjiose  unless  the  petitioner 
has  resided  out  of  this  state  for  three  years  next  preceding  the  filing 
of  the  petition. 

Code,  ss.  2938,  2939;  1897,  c.  110;  1901,  c.  533;  E.  C,  c.  58,  ss.  1,  2;  1840,  c.  36. 

2679.  Decree.  At  the  hearing  the  court,  on  being  satisfied  of  the 
truth  of  the  facts  set  forth  in  the  petition,  and  on  its  being  proved 
that  the  character  of  applicant  for  truth  and  honesty  is  good,  shall 
decree  his  restoration  to  the  lost  rights  of  citizenship,  and  the  peti- 
tioner shall  accordingly  be  restored  thereto. 

Code,  s.  2938;  R.  C,  c.  58,  s.  1;  1840,  e.  30. 

2680.  Pardon,  or  suspension  of  judgment;  procedure  after. 

Any  person  convicted  of  any  crime,  whereby  the  rights  of  citizenship 


2680  EESTOKATION  TO  CITIZENSHIP.  Cb.  64 

are  forfeited,  and  the  judgment  of  the  court  pronounced  does  not 
include  imprisonment  anywhere,  and  pardon  has  Ix'cu  gi-auted  by 
the  governor,  or  the  court  suspended  judgment  on  papnent  of  the 
costs  and  the  costs  have  been  paid,  such  person  may  be  restored 
to  such  forfeited  rights  of  citizenship  upon  application,  by  peti- 
tion, to  the  judge  presiding  at  any  term  of  the  superior  court  held 
for  the  county  in  which  the  conviction  was  had,  one  year  after 
such  conviction.  The  petition  shall  set  out  the  nature  of  the  crime 
committed,  the  time  of  conviction,  the  judgment  of  the  court,  and 
that  pardon  has  been  granted  by  the  governor,  and  also  that  said 
crime  was  committed  without  felonious  intent,  and  shall  be  verified 
by  the  oath  of  the  applicant  and  accompanied  by  the  affidavits  of 
ten  reputable  citizens  of  the  county,  who  shall  state  that  they  are 
well  acquainted  with  the  applicant  and  that  in  their  opinion  the 
crime  was  committed  without  felonious  intent.  No  notice  of  the 
petition  in  such  case  shall  be  necessary,  and  no  advertisement  there- 
of be  made,  but  the  same  shall  be  heard  by  the  judge,  upon  its  pre- 
sentation, during  a  term  of  court;  and  if  he  is  satisfied  as  to  the 
truth  of  the  matters  set  out  in  the  petition  and  affidavits,  he  shall 
decree  the  applicant's  restoration  to  the  lost  rights  of  citizenship, 
and  the  clerk  shall  spread  the  decree  upon  his  minute  docket :  Pro- 
vided, that  in  all  cases  where  the  court  suspended  judgment  it  shall 
not  be  necessary  to  allege  9r  prove  that  pardon  has  been  granted  by 
the  governor  and  in  such  cases  the  petition  may  be  made  and  the 
forfeited  rights  of  citizenship  restored  at  any  time  after  conviction. 

1899,  cc.  44,  249;  1905,  c.  547. 


I'CSI  EOADS,  ETC.—/.  Described.  C'li.  65 


CHAPTEE  65. 
ROADS,  BRIDGES,  FERRIES. 


Sections. 

I. 

Described, 

2681—2682 

II. 

Established, 

268.3—2691 

III. 

Changed  or  discontinued. 

2692—2694 

IV. 

Bridges, 

2695—2705 

V. 

Toll  bridges. 

2706—2710 

VI. 

Gates  across, 

2711 

VII. 

Supervisors, 

2712—2714 

l^III. 

Overseers, 

2715—2724 

IX. 

Who  to  work, 

2725—2726 

X. 

General  provisions, 

I.     Described. 

2727—2728 

2681.  What  constitutes:  board  of  supervisors.  All  roads  and 

ferries  that  have  been  laid  out  or  appointed  by  virtue  of  any  act 
of  assembly,  or  any  order  of  coitrt,  are  hereby  declared  to  be  public 
roads  and  ferries;  and  the  justices  of  the  peace  in  each  township 
shall  have  the  supervision  and  control  of  the  public  roads  in  their 
respective  townships.  They  shall,  with  respect  to  this  work,  con- 
stitute and  be  styled  the  board  of  supervisors  of  public  roads  of 
such  township,  and  under  that  name,  for  the  purposes  aforesaid, 
they  are  hereby  incorporated  the  board  of  supervisors  of  public 
roads,  and  the  board  of  county  commissioners,  as  hereafter  in 
this  chapter  set  forth,  shall  have  fiill  power  and  atithority  within 
their  respective  counties  to  appoint  and  settle  ferries,  to  order  the 
laying  out  of  public  roads  where  necessary,  to  appoint  where  bridges 
shall  be  made,  to  discontinue  such  roads  and  ferries  as  shall  be 
found  useless,  and  to  alter  roads  so  as  to  make  them  more  useful. 

Code,  s.  2014:  1887,  c.  7.3;  1889,  c.  543;  1893,  e.  141;  R.  C,  e.  101,  s.  1;  1784, 
c.  227,  s.  1;  1868,  c.  20,  ss.  11,  16,  17,  18;  1868-9,  e.  185,  s.  14;  1879,  c.  82,  s.  1. 

2682.  Width.  All  roads,  except  such  as  are  causewayed  or 
through  cuts,  shall  be  not  less  than  eighteen  feet  wide,  clear  of 
trees,  logs  and  other  obstructions  to  the  passage  of  ordinary  vehicles, 
and  there  shall  be  ten  feet  in  width  in  the  centre  of  the  roadway 
clear  of  stumps  and  runners.  Where,  by  the  overseers,  it  may  be 
deemed  expedient  to  make  or  repair  causeAvays  on  the  same,  they 
shall  be  at  least  fourteen  feet  wide ;  and  earth,  necessary  to  raise 
or  cover  them,  shall  be  taken  from  either  hand,  so  as  to  fonn  a  drain 
on  each  side  of  the  causeway ;  and  they  shall  make,  of  the  same 
width,   necessary  bridges   throiigh   swamps   and   over   small   streams 


2682  EOADS,  ETC.— 7.  Described.  L'li.   i'.:. 

of  water:  Provided,  this  section  shall  not  apply  to  the  roads  in  tho,<i' 
counties  where  there  is  by  law  a  classification  of  the  widths  of  tin/ 
roads. 

Code,  s.  2025,:  R.  C,  e.  101,  s.  14;  1784,  c.  227,  s.  2;  1880,  c.  30,  s.  6. 

II.     Established. 

2683.  By  whom;  jurors;  appeal.  The  board  of  supervisors  shall 
have  the  right  to  lav  out  and  discontinue  cartways,  and  the  board 
of  commissioners  of  the  county  only  shall  have  the  right  to  lay 
out  and  establish  and  discontinue  public  roads:  Provided,  that  in 
laying  out  and  establishing  roads  and  cartways,  and  for  the  pur- 
pose of  assessing  damage  to  property  by  reason  of  the  same,  no 
greater  number  of  jurors  than  five  shall  be  summoned  or  be  required : 
Provided  further,  that  either  party  may  appeal  from  the  decision 
of  the  board  of  supervisors  to  the  board  of  commissioners  of  the 
county. 

Code,  s.  2023;  1879,  c.  82,  s.  9. 

2684.  Petition;  notice  given.  The  board  of  county  commission- 
ers shall  not  establish  any  ferry,  or  order  the  laying  out  of  any  pub- 
lic road,  or  discontinue  or  alter  such  road  or  ferry,  unless  upon  peti- 
tion in  writing.  And  unless  it  appear  to  the  board  that  every  per- 
son, over  whose  lands  the  said  road  may  pass,  or  whose  ferry  shall 
be  within  two  miles  of  the  place  at  Avhieh  another  ferry  is  prayed 
to  be  established,  shall  have  had  twenty  days'  notice  of  the  inten- 
tion to  file  such  petition,  the  same  shall  be  filed  in  the  office  of 
the  clerk  of  the  board  until  the  succeeding  meeting  of  the  board, 
and  notice  thereof  be  jjosted  during  the  same  period  at  the  court- 
house door;  at  Avhich  meeting  the  board  shall  hear  the  allegations 
set  forth  in  the  petition,  and  if  sufficient  reason  be  sho\\m,  the 
board  shall  appoint  and  settle  or  discontinue  the  said  ferry,  or 
order  the  laying  out,  or  discontinue  or  alter  the  said  road,  as  the 
case  may  be. 

Code,  s.  2038;  R.  C,  c.  101,  s.  2;  181.3,  c.  802,  s.  1. 

2685.  How  laid  out.  All  public  roads  shall  be  laid  out  by  a  jury 
of  three  freeholders,  who  shall  be  summoned  by  the  sheriff  to  meet  at 
one  of  the  termini  of  the  proposed  road,  and,  being  duly  sworn  by  tlie 
sherift'  or  other  person  authorized  to  administer  oaths,  shall  lay  out 
said  road  to  the  gi-eatest  advantage  of  the  inhabitants,  and  with 
as  little  prejudice  as  may  be  to  lands  and  enclosures;  which  laying 
OTit  and  such  damage  as  private  persons  may  sustain,  shall  be  doiu' 
and  ascertained,  by  the  same  jury  on  oath;  and  all  damages  by  them 
assessed  shall  be  deemed  a  county  charge. 

Code,  s.  2040;  1885.  c.  05:  R.  ('..  c.  101,  s.  4:  1872-3,  c.  189.  s.  3;  1879.  v.  82, 
s.  9. 

800 


26S6  ROADS,  ETC.— 77.  Established.  Ch.  65 

2686.  Cartways,  tramways,  established.  If  any  person  be  set- 
tled upon  or  cultivating  any  land,  or  siudl  own  any  standing  timber 
to  which  there  is  leading  no  f)ublic  road,  or  which  is  not  convenient 
to  water,  and  it  shall  appear  necessary,  reasonable  and  just  that 
such  person  should  have  a  private  way  to  a  public  road  or  water- 
course or  railroad  over  the  lands  of  other  persons,  he  may  file  his 
petition  before  the  board  of  supervisors  of  the  township  praying 
for  a  cartway,  tram  or  railway  to  be  kept  open  across  such  other 
persons'  lands,  leading  to  some  public  road,  ferry,  bridge,  public 
landing  or  watercourse  or  railroad ;  and  upon  his  making  it  appear 
to  the  board  that  the  adverse  party  has  had  ten  days'  notice  of  his 
intention,  the  board  shall  hear  the  allegations  of  the  petitioner  and 
the  objections  of  the  adverse  party  or  parties,  and  if  sufficient  rea- 
son be  shown,  shall  order  the  constable  to  summon  a  jury  of  five 
freeholders,  to  view  the  premises,  and  lay  off  a  cartway,  tram  or 
railway,  not  less  than  fourteen  feet  wide,  and  assess  the  damages  the 
owner  of  such  land  may  sustain  thereby ;  which,  with  the  expense 
of  making  the  way,  shall  be  paid  by  the  petitioner;  and  the  cart- 
ways established  under  this  section  shall  be  kept  open  for  the  free 
passage  of  all  persons  on  foot  "or  horseback,  and  all  carts  and  wagons: 
Provided,  that  if  the  notice  aforesaid  shall  hot  have  been  given,  the 
board  shall  cause  such  petition  to  be  filed  with  their  chairman  until 
their  next  meeting,  when  they  shall  proceed  to  hear  and  determine 
the  same,  and  the  petitioner  or  the  adverse  party  may  appeal  from 
the  order  of  the  supervisors  to  the  board  of  commissioners  of  the 
county,  and  from  the  order  of  the  board  of  commissioners  to  the 
superior  court  at  term,  when  the  issues  of  fact  shall  be  tried  by  a 
jury,  and  from  the  judgment  of  the  superior  coi;rt  to  the  supreme 
court,  as  in  other  cases  of  appeal. 

Code,  s.  2056;  190.3,  c.  102;  1887,  c.  46;  R.  C,  c.  101,  s.  37;  1798,  c.  508,  s.  1; 
1822,  c.  1139,  s.  1;  1879,  c.  258. 

2687.  Church  roads  established.  The  board  of  supervisors  in 
each  township  is  authorized  to  order  the  laying  out  of  any  and 
all  necessary  roads  to  and  from  any  church  or  other  place  of  public 
worship  in  their  said  townships,  to  discontinue  such  roads  when 
they  may  be  found  useless,  and  to  alter  the  same  so  as  to  make  them 
more  useful,  and  the  right  of  way  herein  provided  for  shall  termi- 
nate whenever  the  church  or  place  of  worship  shall  cease  to  be  used 
as  such. 

Code,  s.  2062;  1872-3,  c.  189,  ss.  1,  5. 

2688.  Petition  for  church  road;  procedure.  The  said  board  of 

supervisors  shall  not  order  the  laying  out  of  any  such  road  or  discon- 
tinue or  alter  the  same  except  upon  petition,  in  writing,  nor  shall 
they  hear  any  such  jictition,  unless  it  may  be  made  to  appear  that 

Rev.  Vol.  1 — 17  801 


268S  ROADS,  ETC.—//.  EslnhJishcd.  Oh.   G.^ 

every  person  over  whose  lands  the  said  road  may  pass  .'shall  have 
had  ten  daj-s'  notice  of  the  intention  to  file  such  petition,  hy  per- 
sonal .service  of  notice  in  writing,  or  if  the  owner  be  unknown 
or  there  be  no  owner,  agent  or  attorney  of  such  owner  resident 
in  this  state,  then  by  notice  thereof  posted  up  at  the  courthouse 
door  of  the  county  in  which  the  to'wnship  is  situate  and  at  two 
public  places  in  the  township  for  the  space  of  ten  days;  and  upon 
the  hearing  of  the  petition,  if  sufficient  reason  be  shown,  the  said 
board  of  supervisors  shall  order  the  laying  out,  discontinue  or 
alter  the  said  road  as  the  case  may  be,  and  from  their  determina- 
tion any  i^arty  dissatisfied  may  appeal  as  is  provided  in  this  chapter 
in  the  section  directing  the  laying  off  of  cartways. 
Code,  s.  2063;  1872-3,  c.  189,  s.  2. 

2689.  Manner  of  laying  out.    AH  roads  provided  for  in  the  two 

preceding  .sections  shall  be  laid  out  to  the  greatest  advantage  of  the 
iidiabitants  and  with  as  little  prejudice  as  may  be  to  lands  and 
enclosures,  within  twenty  days  from  the  notification  of  their  appoint- 
ment by  three  disinterested  freeholders,  to  be  appoiiued  by  the  said 
board  of  supervisors;  and  such  damage  as  any  individuals  may 
sustain  shall  be  ascertained  by  the  said  freeholders,  and  a  report 
thereof  with  the  i^'oceedings  had  by  them  shall  be  made  to  the 
said  board  of  supervisors;  and  all  damages  so  asses.sed  by  the  free- 
holders shall  be  paid  by  the  petitioners,  and  until  paid  there  shall 
be  no  confirmation  of  the  report  of  the  freeholders,  and  such  laying- 
out  shall  be  of  no  effect. 

Code,  s.  2064;  1872-3,  c.  180,  s.  3. 

2690.  Appeal;  bond;  trial  de  novo.  Any  person  may  apjieal  to 
the  superior  court  at  term  time  from  the  determination  of  tbf 
board  of  county  commissioners,  and  if  any  person  shall  appeal 
from  the  board  on  a  petition,  he  shall  give  bond  to  the  opposing 
party  as  provided  in  other  cases  of  appeal,  and  the  superior  court 
at  term  shall  hear  the  whole  matter  anew;  and  where  any  proceed- 
ing is  instituted  to  lay  oiit,  establish,  alter  or  discontinue  pnblic 
roads  or  to  appoint  and  settle  ferries,  and  the  said  proceeding  is 
carried  to  the  superior  court  in  term  time  by  appeal  or  otherwise, 
the  parties  to  said  proceeding  shall  be  entitled  to  have  every  issue 
of  fact  joined  in  said  proceeding  tried  in  the  .sujierior  court  in 
term  time  by  jury,  and  from  the  judgment  of  the  sujierior  court 
either  party  may  appeal  to  the  supreme  court  as  is  ]irovided  by  law 
for  other  appeals. 

Code,  s.  20.30;  R.  C,  c.  101.  s.  3;    1S13.  r.  S(;-J,  s.   1  ;    lS7n,  c.  258. 

2691.  Public  ferry  sites  condemned.   \\iicnv(r  ;i  \,\\\<Vh-  tViry 

has  been  or  mnv  hereafter  bo  ostalilislicd,  tlic  lidnnl  nf  (•(niiitv  com- 


2691  ROADS,  ETC.—//.  Established.  Ch.   65 

missioners  of  the  county  in  which  any  such  ferry  is  or  may  be 
located  shall  have  power  to  condemn  land,  not  exceeding  one  acre  for 
each  public  ferry,  adjacent  or  convenient  to  said  feri-y,  upon  which 
to  erect  necessary  buildings  for  the  use  and  convenience  of  ferry- 
men and  the  traveling  public,  iinder  the  same  rules  and  regulations 
as  are  provided  by  law  for  condemning  land  for  public  roads ;  and 
upon  the  payment  or  offer  of  payment,  to  the  owner  of  said  land, 
of  tiie  amount  awarded  to  him  therefor,  title  to  the  same  shall  vest 
in  the  county  in  which  said  land  is  situate.  Nothing  in  this  section 
shall  be  construed  to  deprive  the  owner  of  land  so  condemned  of 
the  right  of  appeal  to  the  superior  court. 
1889,  c.  447. 

III.     Changed  ok  Discontinued. 

2692.  On  petition.  Whenever,  ujion  petition  of  any  person,  a 
road  shall  be  changed  and,  as  a  condition  thereof,  it  shall  be  required 
by  the  board  that  he  put  the  proposed  road  in  good  condition,  he 
may,  at  any  time  thereafter,  tender  the  same  to  the  overseer,  who 
shall  receive  it,  if  it  be  in  such  condition  as  is  required  for  high- 
ways ;  and  if  not,  he  shall  reject  it ;  and  in  either  case  he  shall  report 
and  certify  the  fact  to  said  board  where  the  same  may  be  consid- 
ered ;  and  said  board  shall  hear  all  persons  interested  in  the  mat- 
ter of  receiving  or  rejecting  the  road ;  and  the  decision  of  the 
board  shall  be  conclusive  as  to  the  condition  of  the  road ;  but  the 
old  road  shall  not  be  closed  until  it  be  discontinued  by  order  of  the 
board. 

Code,  s.  2041;  R.  C,  c.  101,  s.  5;   1784,  o.  227,  s.  13;   1813,  c.  862,  s.  1. 

2693.  By  land   owner.     In  addition  to  the  mode  prescribed  in 

the  preceding  section  for  turning  roads,  the  following  method  may 
be  observed  by  any  one  who  desires  to  change  a  road  from  one  part 
of  his  land  to  another  part,  namely:  Such  person  shall  lay  out 
the  same,  and  after  putting  it  in  such  good  condition  as  highways 
are  directed  to  be,  shall  'apply  to  a  justice  of  the  peace,  who  there- 
upon shall  notify  the  overseer  of  the  road,  and  summon  two  free- 
holders to  meet  on  the  premises  at  a  given  day;  and  the  said  free- 
holders, being  duly  sworn,  shall,  with  the  justice,  view  and  exam- 
ine carefully  the  road  which  is  proposed  in  place  of  the  other,  and 
all  matters  and  facts  tending  to  show  whether  the  change  should  be 
allowed.  They  shall  report,  in  writing  subscribed  by  them,  the 
result  of  their  consideration  to  the  next  meeting  of  the  boai'd  of 
supervisors,  which  may  confirm  or  reject  their  report:  Provided, 
that  such  justice  and  freeholders  shall  be  disinterested  in  the  land, 
and  not  of  kin  or  affinity  to  the  applicant. 

Code,  s.  2042;  R.  C.  c.  101.  s.  6;   18.34,  e.  22. 


20iH       KOADS,  ETC.—///.   Changed  or  Discontinued.       Cli.   65 

2694.  Cartways,  tramways,  railways;  gates.  Cartways,  tram- 
ways or  railways  laid  off  according  to  the  provisions  of  this  chapter, 
may  be  changed  or  discontinued  upon  ap])licatiou  by  any  person  con- 
cerned, under  the  same  rules  of  proceeding  as  they  may  be  first  laid 
off,  and  upon  such  terms  as  to  the  board  of  supervisors  shall  seem 
equitable  and  just.  Cartways,  trannvays  or  railways  for  the  removal 
of  timber,  shall  continue  for  a  period  not  longer  than  five  years,  and 
in  entering  cultivated  land,  shall  protect  the  same  by  sufficient  stock- 
guards.  And  any  person  through  whose  land  a  cartway  may  pass 
may  erect  gates  across  the  same,  which  shall  be  kept  in  good  repair. 

Code,  s.  2057;  1887,  c.  46,  s.  2;  R.  C,  c.  101,  s.  38;  1798,  c.  508,  ss.  1,  2,  3; 
1834,  c.  16,  s.  1;  1887.  c.  266. 

IV.     Bkidges. 

2695.  Where  footways  and  hollow  bridges  maintained.  Every 

overseer  of  the  road,  when  the  township  board  of  supervisors  may 
so  direct,  shall  cause  to  be  made  and  kept  in  repair,  for  the  con- 
\^enienee  of  travelers  on  foot,  good  and  sufficient  footways  over  all 
swamps  and  streams  of  Avater  that  may  cross  that  part  of  the  road 
allotted  to  him ;  and,  when  the  board  shall  so  direct,  shall  also  erect 
and  keep  hand-rails  on  each  side  of  all  hollow  bridges  situate  on  such 
part  of  the  road :  Provided,  that  at  all  places  where  footways  and 
hand-rails,  at  hollow  bridges  or  over  swamps  and  streams  of  water, 
shall  have  been  commonly  used,  for  the  space  of  ten  years  next 
preceding  any  period  within  three  years  before  presentment  made 
or  indictment  found  for  want  of  snch  footways  or  hand-rails,  the 
same  shall  be  conclusive  evidence  of  an  order  theretofore  made 
by  the  board,  that  they  shall  be  erected  and  kept  up,  subject  to  be 
rebutted-  only  by  producing  an  order  dispensing  with  them  made 
within  three  years  next  before  s\ich  presentment. 
Code,  s.  2029;  R.  C,  c.  101,  s.  17;  1817,  c.  940,  ss.  1,  2. 

2696.  How  made  and  maintained;  when  connecting  two  coun- 
ties; liability  of  county  commissioners.   When  a  bridge  shall 

be  necessary,  and  the  overseer  with  his  assistants  can  not  con- 
veniently make  it,  the  board  of  county  commissioners  shall  con- 
tract for  the  building,  keeping  and  repairing  thereof,  provided  the 
cost  of  the  same  does  not  exceed  five  hundred  dollars,  and  the 
same  shall  be  a  charge  on  the  coTinty ;  and  when  bridges  shall  be 
necessary  over  any  stream  which  divides  one  coiinty  from  another, 
the  commissioners  of  each  shall  join  in  agTcement  for  building,  keep- 
ing and  repairing  the  same,  provided  the  cost  of  the  same  docs  not 
exceed  five  hundred  dollars ;  and  the  charge  thereof  shall  be  defrayed 
by  both  counties,  in  proportion  to  the  number  of  taxable  polls  in 


2696  EOADS,  ETC.— ZF.  Bridges.  Ch.  65 

each,  unless  otherwise  agreed  upon  by  and  between  the  commissioners 
of  the  respective  counties,  and  bridges  shall  be  deemed  necessary,  as 
provided  for  in  this  section,  in  all  cases  where  public  roads  have  been 
regularly  laid  off  in  each  county  according  to  law  to  the  banks  of  any 
stream  which  divides  one  county  from  another,  if  there  be  no  ford 
across  said  stream,  so  long  as  said  road  shall  continue  to  be  a  public 
ferry  road ;  and  if  the  commissioners  of  each  county  shall  not  provide 
their  proportionate  part  of  the  money  necessary  for  keeping  up  and 
repairing  the  bridges  across  such  stream,  then  each  of  said  commis- 
sioners shall  be  liable  to  a  penalty  of  fifty  dollars,  to  be  sued  for  by 
any  taxpayer  of  the  county,  one-half  of  said  penalty  to  go  to  the  party 
suing  for  the  same  and  the  other  half  to  the  school  fund  of  the 
county. 

Code,  s.  2034;  18S7,  c.  370;  1889,  c.  317;  R.  C,  c.  101,  s.  22;  1784,  c.  227,  s.  6. 

2697.  Person  constructing  ditch  across  public  road  to  main- 
tain. It  shall  be  the  duty  of  every  owner  of  a  water-mill,  which  is 
situate  on  any  public  road,  and  also  of  every  person  who,  for  the 
purpose  of  draining  his  lauds,  or  for  any  other  purpose,  shall  con- 
struct any  ditch,  drain  or  canal  across  a  public  road,  respectively,  to 
keep  at  his  own  expense  in  good  and  sufficient  repair,  all  bridges 
that  are  or  may  be  erected  or  attached  to  his  milldam,  immediately 
over  which  a  public  road  may  run ;  and  also  to  erect  and  keep  in 
repair  all  necessary  bridges  over  such  ditch,  drain  or  canal  on  the 
highway,  so  long  as  they  may  be  needed  by  reason  of  the  continuance 
of  said  mill,  or  milldam,  ditch,  drain  or  canal.  Nothing  herein 
shall  be  construed  to  extend  to  any  mill  which  was  erected  before 
the  laying  off  of  such  road,  unless  the  road  was  laid  off  by  the 
request  of  the  o^^Tier  of  the  mill.  The  duty  hereby  imposed  on  the 
owner  of  the  mill,  and  on  the  person  cutting  the  drain  or  canal,  shall 
continue  on  all  subsequent  O'^vners  of  the  mill,  or  other  property,  for 
the  benefit  of  which  the  said  ditch,  drain  or  canal  was  cut.  When 
any  ditch  or  drain  originally  constructed  across  any  public  road, 
and  bridged  for  the  convenience  and  safety  of  the  traveling  public, 
has  been  or  may  hereafter  be  enlarged  by  the  owner  of  adjacent  lands 
to  drain  his  lands,  it  shall  be  the  duty  of  such  owner  to  keep  up  and 
in  repair  all  bridges  crossing  such  ditch,  drain  or  canal,  and  such 
charge  shall  be  imposed  upon  all  subsequent  owners  of  the  lands 
so  drained.  Any  person  throwing  a  bank  of  dirt  in  the  main 
road  shall  be  compelled  to  spread  the  same.  Wlien  any  ditch  or 
drain  is  CTit  in  such  way  as  to  turn  water  into  any  public  road  the 
person  cutting  such  ditch  or  drain  shall  be  compelled  to  cut  such 
other  ditch  or  drain  as  may  be  necessary  to  take  the  water  from  said 
road. 

Code,  s.  2036:  1887,  c.  261;  R.  C,  c.  101,  s.  24;  1817,  c.  941,  s.  1;  1846,  c.  05, 
s.  1;  1881,  c.  290. 


26!)S  ROADS,  ETC.— /F.  Bridges.  Ch.   o:. 

2698.  When  county  to  erect  draws.   The  county  or  counties 

which  may  erect  hridges  shall,  by  tlieir  hoards  of  commissioners,  pro- 
vide and  keep  up  draws  in  all  such  hridges,  where  the  same  ma.j  ho 
necessary  to  allow  the  convenient  passage  of  vessels.  When  any 
such  draw  shall  be  necessary  to  be  erected  for  the  passage  of  timber- 
rafts,  said  draw  may  not  exceed  twenty'  feet  in  width. 

Code,  s.  2053;  1891,  c.  168;  R.  C,  c.  101,  s.  34. 

2699.  When  owner  of,  to  put  in  draw.  Owners  of  steamboats  or 
other  craft,  who  may  intend  to  navigate  any  river  or  creek  over 
which  any  person  may  have  a  bridge,  may  give  three  months'  notice 
thereof  in  one  of  the  public  journals  of  the  state,  published  nearest 
the  river  or  creek  intended  to  be  navigated,  and  to  the  owner  of 
said  bridge,  to  construct  a  draw  of  sufficient  width  to  allow  the 
passage  of  the  boat  which  is  to  be  used ;  and  if  the  owner  of  said 
bridge  shall  not,  within  three  months  from  the  date  of  the  notice, 
construct  the  required  draw,  he  shall  forfeit  and  pay  the  person  so 
notifying,  if  he  be  thereby  prevented  from  navigating  the  water- 
course, fifty  dollars;  and  shall  be  further  subject  to  the  like  penalty, 
under  like  circimistances,  for  every  three  months'  default  there- 
after. 

Code,  s.  2052;  R.  C,  c.  101,  s.  32;   1846.  c.  51,  ss.  1,  2;   1838-9,  c.  5. 

2700.  Railroads  keep  up,  when.  Railroad,  iilankroad  and  turn- 
pike companies,  each,  shall  keep  up,  at  their  own  expense,  all  bridges 
on  or  over  county,  or  incor])orated  roads,  which  they  have  severally 
made  it  necessary  to  be  built,  in  establishing  their  respective  roads ; 
and  on  failure  to  do  so,  shall  forfeit  and  pay  twenty-five  dollars  to 
any  person  who  may  sue  for  the  same. 

Code,  s.  2054:  R.  C,  c.  101,  s.  35. 
Note.     See  also,  s.  2508  el  .seq. 

2701.  Railroads  l<eep  up  draws,  when.  Railroad,  plankroad  and 
turnpike  companies,  erecting  bridges  across  watercourses,  shall 
attach  and  keep  up  good  and  sufficient  draws,  by  which  vessels  may 
be  allowed  conveniently  to  pass. 

Code,  s.  2051;  R.  C,  c.  101,  s.  32;  1846,  c.  51,  ss.  1,  2. 

2702.  County  orders  for,  valid.  Every  contract  and  f)rder  by 
the  board  of  county  commissioners  entered  into  or  made  as  autlioi-- 
ized  by  this  chapter  tor  or  concerning  the  building,  keeping  u]i  or 
rc]iairing  bridges,  in  such  manner  as  to  tlicni  may  seem  most  pro])er. 
shall  be  valid  against  the  county. 

C'o<le.  s.  2035;  1887,  c.  370,  s.  2;  R.  C,  c.  101,  s.  23;  1784,  c.  227,  s.  6. 


2703  ROADS,  ETC.— 7T'.  Bridges.  Ch.   65 

2703.  Penalty  for  neglect  to  repair.   Every  person  who  shall 

fail  to  perform  the  duties  imposed  upon  him  by  this  chapter,  or 
shall  leave  out  of  repair  any  such  bridge,  for  the  space  of  ten  days, 
unless  prevented  by  unavoidable  circumstances,  shall  be  liable  for 
such  damages  as  may  be  sustained. 

Code,  s.  2037;  R.  C,  e.  101,  8.  25;  1817,  c.  941,  s.  2;  187G-7,  e.  90;  1876-7, 
e.  211. 

2704.  How  expense  of  maintaining  borne.    The  expense  of 

building  and  keeping  up  public  bridges  in  the  several  counties 
shall  be  borne  by  the  whole  people  of  each,  and  not  by  the  people 
of  the  township  separately,  in  which  such  bridges  may  be  situated ; 
and  it  shall  be  the  duty  of  the  commissioners  to  adjust  this  burden 
equally  among  the  people  of  their  resj^ective  counties,  and  they 
shall  exercise  a  due  supervision  over  the  action  of  the  respective 
boards  of  supervisors  of  the  townships,  so  as  to  prevent  the  board 
of  any  township  from  establishing  any  unnecessary  number  of 
bridges  in  its  respective  township. 

Code,  s.  2000;  1869-70,  c.  219. 

2705.  Solicitor  to  prosecute  for  injury  to  bridges.  The  solic- 
itors of  the  superior  court  are  authorized  and  directed  to  insti- 
tute suits  in  the  name  of  the  state,  in  the  counties  wherein  the 
injuries  may  be  done,  for  the  recovery  of  damages,  against  all  per- 
sons who  shall  Avilfully  or  negligently  injure  any  public  bridge 
belonging  to  or  situate  in  any  county  or  counties,  by  forcibly  run- 
ning any  decked  vessel,  boat  or  raft  against  the  same ;  by  cutting 
trees  or  timber  in  the  rivers  or  creeks  above  such  bridges,  or  by  any 
other  manner  or  means  whatsoever.  In  case  the  injury  is  done 
to  two  counties,  the  action  may  be  brought  in  either  for  the  entire 
damage;  and  the  damages  which  may  be  recovered  shall  be  for  the 
use  of  the  county  or  counties  injured ;  and  if  the  plaintiff  fail,  the 
costs  shall  be  paid  by  the  county  or  counties  for  whose  use  the  suit 
is  brought,  and  in  the  same  proportion  in  which  the  recovery  would 
bo  divided. 

Code,  s.  20.5.5;  P..  C,  c.  101,  s.  36;   1846,  c.  11,  ss.  1.  2. 

V.      Toll  Bkidges. 

2706.  When  commissioners  may  establish.    Whenever,  from 

tlie  rapidity  nr  width  of  any  stream,  it  may  be  too  burdensome  to 
build  and  kee])  u])  a  bridge  across  the  same,  at  the  expense  of  those 
wlio  are  taxable  for  that  purpose,  the  board  of  commissioners  of 
tlie  county,  or  counties,  chargeable  thcrewitli,  may  jointly  and  sev- 
erally   (as  the  case  may  be)   contract  f<ir  the  building  thereof,  by 

807 


2706  EOADS,  ETC.— F.   Toll  Bridges.  Ch.   65 

allowing  the  builder  to  take  tolls,  at  such  rate  and  for  such  time, 
on  all  persons,  horses,  carriages  and  other  things  passing  over  the 
bridge,  as  may  be  agTced  on  between  the  board  of  commissioners 
and  the  builder ;  which  tolls  shall  be  common  to  all  persons.  And 
such  bridges  shall  be  built  in  the  manner  the  board  or  boards  may 
direct,  and  shall  be  kept  in  good  repair  by  the  builder,  his  heirs 
and  assigns,  during  the  time  the  tolls  are  to  be  enjoyed. 

Code,  s.  2045;  E.  C,  c.  101,  s.  26;  1784,  c.  227,  s.  7;  1817,  c.  939,  s.  2;  1817, 
c.  940,  s.  .3. 

2707.  Commissioners  may  regulate  tolls.  The  board  of  com- 
missioners of  each  county  shall,  once  a  year,  or  oftener  if  necessary, 
at  the  meeting  to  be  held  next  after  the  first  day  of  January,  rate 
the  prices  of  such  ferries  as  shall  be  kept  within  their  respective 
counties;  and  any  ferry  keeper  who  shall  ask,  demand,  or  receive 
a  greater  price  for  ferriage  than  shall  be  rated  by  the  board  of 
commissioners,  shall  forfeit  and  pay  five  dollars  for  every  offense 
to  the  party  aggrieved.  And  every  person  who  owns  a  public  ferry, 
and  refuses  to  keep  it  up  at  the  rates  allowed  by  the  board,  shall 
for  every  such  offense  forfeit  five  dollars. 

Code,  s.  2046;  R.  C,  e.  101,  s.  27;  1779,  c.  160,  s.  2. 

2708.  Owner  of  ferry  may  build.  In  all  cases,  where  the  proprie- 
tor of  a  ferry  shall  prefer  building  a  good  and  substantial  bridge 
over  any  watercourse  instead  of  keeping  a  ferry,  he  may  do  so ; 
and  may  claim  and  hold  such  bridge  under  the  same  rights,  and  in 
the  same  manner,  by  which  the  ferry  is  claimed  and  held,  and  under 
the  same  rules,  regulations,  restrictions  and  penalties  as  other  toll- 
bridges:  Provided,  that  no  more  toll  shall  be  demanded  for  passing 
any  such  bridge  than  is  granted  by  law  for  the  ferriage,  unless  by 
agreement  with  the  board  of  commissioners :  Provided  further,  that 
in  all  such  bridges  the  proprietor  shall  erect  a  draw,  where  the  free 
navigation  of  the  stream  may  require  it. 

Code,  s.  2047;  E.  C,  c.  101,  s.  28;  1806,  c.  706. 

2709.  Owner  of,  and  ferries  to  give  bond.  The  board  of  com- 
missioners of  each  count}'  shall  compel  c\'ery  person  that  may  o\vn 
a  toll-bridge,  or  keep  a  public  ferry,  within  the  county,  to  give  bond 
with  good  surety  in  the  sum  of  one  thousand  dollars,  payable  to 
the  state  of  North  Carolina,  conditioned  that  he  will  constantly 
keep  such  bridge  in  good  repair,  or,  as  the  case  may  be,  provide 
and  keep  good  and  sufficient  boats,  or  other  proper  craft,  always  to 
be  well  attended,  for  the  passing  of  travelers  or  other  persons,  their 
horses,  carriages  and  effects;  and  will  indemnify  and  save  harmless 
every  person  who  may  lie  endamaged,  bv  reason  of  any  default  in 


27U9  EOADS,  ETC.— F.  Toll  Bridges.  Ch.  65 

his  undertaking.  And  if  any  person  shall  receive  damage,  because 
such  ferryman  or  keeper  of  a  toll-bridge  shall  not  have  complied 
with  the  conditions  of  his  bond,  he  may  bring  suit  thereon  in  the 
name  of  the  state,  and  recover  his  damages.  And  if  any  person 
shall  be  detained  at  any  public  ferry  by  reason  of  the  ferryman 
not  having  sufficient  boats  or  other  proper  crafts  and  hands,  or  by 
his  neglecting  to  do  his  duty  in  any  other  respect,  he  may  recover 
before  a  justice  of  the  peace,  against  such  ferryman,  the  sum  of 
ten  dollars,  as  a  jienalty  for  every  such  default  or  neglect. 
Code,  s.  2048;  R.  C,  c.  101,  s.  29;  1784,  c.  227,  s.  15. 

2710.  Penalty  on  unauthorized  ferry.  If  any  unauthorized  per- 
son shall  pretend  to  keep  a  ferry  or  to  transport  for  pay  any  person 
or  his  effects,  within  five  miles  of  any  ferry  on  the  same  river  or 
water,  which  theretofore  may  have  been  appointed,  he  shall  for- 
feit and  pay  two  dollars  for  every  such  offense,  to  the  nearest  ferry- 
man :  Provided,  that  any  person  who  may  contract  for  carrying 
the  mail,  may  keep  a  boat  for  the  sole  purpose  of  transporting  the 
same,  and  such  passengers  as  may  travel  in  the  coach  therewith, 
across  any  ferry;  but  such  contractor  shall  not  transport  across  such 
ferry  any  other  passengers  than  such  as  travel  by  the  coach. 

Code,  s.  2049;  R.  C,  e.  101,  s.  30;  1764,  c.  72,  s.  1;  1787,  c.  273;  1883,  c.  381. 

VI.     Gates  Aceoss. 

2711.  Permission  for  erection.  Any  person  desiring  to  erect  a 
gate  across  a  public  road  may  file  his  petition  before  the  board  of 
supervisors  of  the  township  where  the  road  lies;  whereupon  publi- 
cation shall  be  made  at  the  courthouse  and  on  the  lands  of  the  person 
so  applying  and  at  three  public  places  in  said  township  imtil  the 
next  succeeding  meeting,  of  such  application,  specifying  the  road, 
the  place  for  the  gate  and  name  of  the  petitioner ;  and  all  persons 
interested  in  the  convenient  traveling  or  transportation  on  said  road 
shall  have  leave  to  appear  and  defend,  demur,  or  plead  to  said  peti- 
tion ;  and  if,  at  that  meeting,  it  shall  appear  that  such  publication 
has  been  made,  the  supervisors  may,  at  their  discretion,  authorize 
the  petitioner,  at  his  cost,  to  erect  a  gate  as  prayed  for. 

Code,  s.  2058;  R.  C,  c.  101,  s.  39;  1834,  c.  16,  ss.  2,  3,  4 ;  190.5,  c.  88. 
Note.  2694. 

YII.     Supervisors. 

2712.  To  meet,  when  and  where.   The  board  of  supervisors 

shall  meet  at  some  place  in  their  respective  townships  to  bo  agTced 
upon  by  themseh'es,  or,  in  the  absence  of  such  agreement,  to  be 
named  by  their  chairman,  on  the  first  Saturday  of  February  and 


2712  ROADS,  ETC.— T7/.  Supervisors.  C'li.   C.:. 

August,  for  the  purpose  of  consulting  on  the  subject  of  the  condi- 
tion of  the  roads  in  their  township.  They  shall  once  in  each  year, 
during  the  week  of  their  meeting  in  August,  go  over  and  personally 
examine  all  the  roads  in  their  township.  They  shall  annually  at 
their  meeting  in  February  elect  some  cue  of  their  number  chair- 
man :  Provided,  that  no  supervisor  shall  receive  any  compensation 
for  his  services  as  supervisor  of  public  roads. 

Code,  s.  201.5;  1S79,  e.  82,  s.  2;  1880,  e.  .30,  s.  1. 

2713.  To  make  annual  reports  to  superior  court.   The  board 

of  supervisors  shall  annually  make  report  to  the  tirst  term  of  the 
superior  court  of  their  county  after  the  first  Monday-  in  August  of 
the  condition  of  the  roads  of  their  township,  and  if  the  meetings 
provided  for  in  this  chapter  have  been  held  by  said  board,  the 
judge  holding  such  term  of  the  superior  court  shall,  after  his  charge 
to  the  grand  jury  and  before  they  shall  retire  to  their  room,  call 
upon  the  clerk  of  the  court  for  stich  reports,  and  they  shall  then 
and  there  be  delivered  to  the  foreman  of  the  grand  jury. 
Code,  s.  2024;  1879,  c.  82,  s.  10. 

2714.  To  have  orders  appointing  overseers  served  within  thirty 

days;  penalties.  The  board  of  .supervisors  of  the  township,  within 
ten  days  after  the  rise  of  the  board,  shall  furnish  the  constable  with 
two  copies  of  each  order  appointing  overseers  of  roads  that  may 
have  been  made  during  the  sitting  of  the  board.  And  the  con- 
stable shall  apply  at  the  office  of  the  board,  within  ten  days  after 
the  rise  of  every  meeting  of  the  board,  for  such  orders,  and,  on 
receiving  them,  shall,  within  twenty  daj's,  serve  each  overseer  of 
roads  Avith  a  copy  of  the  order,  or  leave  the  same  at  his  usual  habita- 
tion ;  and  the  other  copy  shall  be  returned  to  the  next  meeting  of 
the  board  of  supervisors,  with  the  date  of  its  reception  by  him 
and  the  date  of  the  service  indorsed  thereon,  or  the  date  when  it 
was  left  at  the  residence  of  the  said  overseer.  And  if  either  the 
board  or  constable  shall  fail  to  perform  any  duty  enjoined  by  this 
section,  he  shall  forfeit  ten  dollars  to  the  county,  to  be  recovered 
at  any  time,  by  notice  to  show  cause  at  the  instance  of  the  solicitor, 
who  shall  prosecute  the  same  in  the  name  of  the  state:  Provided, 
the  delivery  to  the  overseer  of  the  order  appointing  him  made  by  the 
board  of  supervisors  of  the  township,  or  any  one  of  them,  shall  be 
dcciiK'd  and  held  to  bo  a  legal  service  of  the  same, 
(•("ic,  s.  ■2(m:  1S01.  c.  .")19;  i{.  ('..  c.  tot,  s.  .s,  i.si-j.  c.  sAr,.  ss.  1.  2:  isi:;. 

c.  8.">!),  S.S.  1,  2. 


2715  EOADS,  ETC.— F///.   Overseers.  Ch.   65 

VIII.     Overseers. 

2715.  When  appointed;  when  hands  allotted.   The  board  of 

supervisors  shall,  annually  at  the  meeting-  in  August,  divide  the 
roads  of  their  townships  into  sections  and  apjioiut  overseers  for  such 
sections  at  said  meeting.  They  shall  at  the  same  time  allot  the 
hands  to  the  overseers,  and  shall  also  designate  the  boundaries  or 
jwints  to  which  each  resident  shall  be  liable  to  work  on  each  sec- 
tion, and  shall  within  five  days  after  such  meeting  certify  to  each 
overseer  written  notice  of  his  appointment,  with  a  list  of  the  hands 
assigned  to  his  section.  The  board  of  supervisors  may  at  any  time 
alter  the  sections  or  allotment,  but  shall  give  notice  thereof  to  the 
overseer.  Such  overseer  shall  serve,  and  be  liable  as  such  for  neg- 
lect of  duty,  until  he  shall  be  relieved  by  the  board,  which  shall  be 
done  only  upon  his  showing  that  his  road  is  in  good  condition  as 
prescribed  by  law.  The  overseer  may  resign  after  the  expiration 
of  twelve  months,  provided  his  road  shall  be  in  good  repair  and 
the  board  of  supervisors  shall  so  find ;  and  any  overseer  so  resign- 
ing, and  whose  resignation  has  been  accepted  by  the  board,  shall  not 
withoiTt  his  consent  be  again  appointed  overseer  until  after  the  expi- 
ration of  two  years  from  the  date  of  his  I'csigiiation.  When  a  pub- 
lic road  shall  be  a  dividing  line  between  townships,  the  board  of 
commissioners  of  the  county  shall  determine  as  to  how  said  road 
shall  be  divided,  with  notice  as  to  the  working  of  said  road.  The 
hands  may  be  allotted  to  a  road  by  allotting  all  Avho  live  or  shall  live 
within  certain  boundaries  to  be  fixed  by  the  board  of  supervisors, 
in  which  event  a  list  of  the  hands  by  name  need  not  be  given,  but 
the  list  shall  specify  the  hands  living  in  the  prescribed  territory. 

Code,  s.  2016;  1879,  c.  82,  ss.  3,  7;  1880,  c.  30,  s.  1;  1887,  c.  93,  s.  1. 

2716.  Reports  to  supervisors.  Every  overseer  shall  at  each  and 
every  meeting  of  the  board  of  supervisors  of  his  township  make 
report  to  them  of  the  present  condition  of  his  road,  of  the  number 
of  days  worked  on  his  section  since  last  meeting,  of  the  number 
of  hands  who  attended  and  worked  each  day,  of  the  number  and 
names  of  hands  who  failed  to  attend  and  work;  whether  or  not 
they  were  legally  summoned,  and  whether  or  not  they  paid  the  one 
dollar  as  provided.  The  said  overseer  shall,  before  some  person 
authorized  to  administer  an  oath,  make  written  affidavit  that  the 
report  is  true  and  correct.  Upon  this  report  sworn  to  as  aforesaid, 
if  it  shall  appear  that  any  of  the  hands,  after  being  legally  simi- 
moned,  have  failed  to  attend  and  work  on  said  road,  and  that  they 
did  not  pay  the  one  dollar,  then  it  shall  be  the  duty  of  the  said 
supervisors,  or  any  one  of  them,  to  issue  a  warrant  for  the  arrest 
of  any  such  hand,   and   shall  put  him  ii]ion  trial   for  the  offense: 


271G  EOADS,  ETC.— VIII.   Overseers.  Ch.   65 

Provided,  that  nothing  herein  contained  shall  prevent  the  overseer 
of  the  road  from  prosecuting,  at  any  time  after  the  offense  has  been 
committed,  any  hand  for  failure  to  work  on  the  road,  and  such 
cases  of  prosecution  shall  be  stated  in  his  report  to  the  board  of 
supervisors,  that  they  may  not  prefer  another  prosecution  for  the 
same  offense. 

Code,  s.  2021;  1S79,  c.  82,  s.  7;  1880,  c.  30,  s.  4. 

2717.  To  report  money  collected  and  how  expended.  The  said 

overseers  shall,  at  the  meeting  of  the  supervisors  in  August,  make  a 
report  of  all  moneys  collected  by  them  from  parties  excused  from 
work  on  the  road  for  the  preceding  year,  with  a  statement  as  to 
how  the  same  was  expended.  In  case  of  failure  of  any  overseer  to 
make  any  report  to  the  board  of  supervisors  of  public  roads  of  his 
township,  as  provided  in  this  chapter,  it  shall  be  the  duty  of  the 
chairman  of  such  board  immediately  upon  such  failure  to  make  a 
sworn  statement  of  the  fact  before  some  justice  of  the  peace  of  an 
adjoining  township,  who  shall  immediately  issue  his  warrant  for 
the  arrest  of  the  said  overseer,  and  proceed  to  try  him  for  the  offense. 
Code,  s.  2022;  1879,  c.  82,  s.  8. 

2718.  May  lay  off  tasks  to  hands.  The  overseer,  if  requested 
by  a  majority  of  the  hands  on  the  road  assigned  him,  may,  in  his 
discretion,  lay  off  the  road  in  equal  portions  for  the  convenience  of 
the  laborers,  who  shall  finish  his  or  their  part  in  a  time  agreed  on 
between  him  and  each  person,  and  on  default  of  any  agreeing 
party,  the  overseer  shall  cause  such  part  to  be  finished  by  the  labor 
of  other  persons,  and  by  Avarrant  may  recover  the  value  thereof  to 
his  own  use:  Provided,  that  the  time  agreed  on  shall  not  exceed  six 
days,  and  that  nothing  in  this  section  shall  be  a  defense  to  the 
overseer,  when  prosecuted  for  default  concerning  the  condition  of 
the  road. 

Code,  s.  2026;  R.  C,  c.  101,  s.  1.3;  1784,  c.  227,  s.  10. 

2719.  May  use  timber  and  dirt  on  roads.  Overseers  may  law- 
fully cut  poles  and  other  necessary  timber,  for  repairing  and  mak- 
ing bridges  and  causeways.  And  Avhenever  earth  shall  be  needed 
on  a  public  road,  and  it  can  not  be  conveniently  procured  on- either 
side  of  the  causeway,  the  overseer  may  lawfully  take  tlie  earth  from 
any  adjoining  land. 

Code.  s.  2027;  R.  C.  c.  101,  s.  18;  178.J,  c.  25U,  s.  1:  1818,  c.  970,  s.  1. 

2720.  Notice  to  work  on  road,  how  served.  When  an  overseer 
shall  not  be  able  to  personally  notify  the  hands  three  days  before  the 
day  a])pointcd  for  working  the  road,  lie  shall  leave  at  the  house  of 
each    liaml   a   written   summons,   specifying   tlic   day  on   whicli   they 

812 


2720  ROADS,  ETC.— 17//.   Overseers.  Ch.   (\r> 

are  required  to  attend,  the  place  of  the  road  to  be  worked,  and  the 
kind  of  tools  to  be  brought  or  used;  and  the  said  written  summons, 
left  as  aforesaid,  shall  be  deemed  sufficient  notice  to  the  hands 
required  to  be  notified;  and  all  penalties  recovered  by  an  overseer, 
for  default  of  working  on  the  road,  shall  be  applied  by  him  to  the 
repair  of  the  road  of  which  he  is,  or  may  have  been  overseer. 

Code,  s.  2044;  R.  C,  o.  101,  s.  10;   1842,  c.  60'. 

2721.  When  roads  to  be  worked.  The  overseer  of  the  road  shall, 
as  often  as  the  road  shall  require,  not  more  than  six  days  in  any 
one  year,  summon  the  hands  of  his  section  to  work  on  the  road,  but 
the  said  hands  shall  not  be  required  to  work  continuously  for  a 
longer  time  at  any  one  time  than  two  days,  and  at  least  fifteen  days 
shall  intervene  between  workings,  except  in  case  of  special  damage 
to  the  road,  resulting  from  a  storm.  The  notice  shall  be  at  least 
three  days  before  the  day  named  for  the  work,  and  shall  state  the 
hour  and  the  place  for  the  meeting  of  the  hands,  and  what  imple- 
ment the  hand  shall  bring  with  him.  Every  person  liable  to  work 
on  the  road  who  has  been  so  summoned  shall  appear  at  the  time 
and  place  named,  and  with  the  implement  directed,  and  shall 
work  on  the  road  under  the  direction  of  the  overseer  imtil  dis- 
charged by  him :  Provided,  that  no  hand  shall  be  required  to  work 
for  a  less  time  than  seven  hours  nor  a  longer  time  than  ten  hours 
in  any  one  day.  Any  person  summoned  as  aforesaid  who  shall,  by 
twelve  o'clock  of  the  day  preceding  the  one  appointed  for  work 
on  the  road,  pay  to  the  overseer  the  sum  of  one  dollar  shall  be 
relieved  from  working  on  the  road  for  one  day.  The  money  thus 
collected  by  the  overseer  shall  be  by  him  applied  on  the  working 
and  repairing  of  the  road :  Provided  further,  that  any  person  who 
shall  furnish  one  able-bodied  hand  as  a  substitute,  with  the  imple- 
ment directed,  shall  be  held  to  have  complied  with  this  chapter. 

Code,  s.  2019;  1879,  c.  82,  s.  5;  1880,  c.  30,  s.  3. 

2722.  Sign-posts  put  up.    Overseers  shall  cause  to  be  set  up,  at 

the  forks  of  their  respective  roads,  a  post  or  posts,  with  arms  point- 
ing the  way  of  each  road,  with  plain  and  durable  directions  to  the 
most  public  places  to  which  they  lead,  and  with  the  number  of  miles 
from  that  place  as  near  as  can  be  computed ;  and  every  overseer 
who  shall,  for  ten  days  after  notice  of  his  appointment,  neglect  to 
do  so  and  to  keep  the  same  in  repair,  shall  forfeit  and  pay  for  every 
such  neglect  ten  dollars. 

Code,  s.  2030;  R.  C,  c.  101,  s.  18;  1784,  c.  227,  s.  11;  1812,  e.  846. 

2723.  Mile-posts  put  up  correctly.  Every  overseer  of  a  road 
shall  cause  the  same  to  be  exactly  measured,  where  it  has  not  already 
been  done,  and  at  the  end  of  each  mile,  shall  mark  in  a  plain,  legi- 

813 


2723  liOADS,  ETC.— 17/7.   Overseers.  Ch.  65 

ble,  and  durable  luauner, .  the  mimbei'  of  the  miles,  beginning,  con- 
tinuing, and  marking  the  numbers  in  such  manner  and  form  as 
the  board  of  supervisors  shall  direct;  and  every  overseer  shall  keep 
up  and  repair  such  marks  and  numbers  of  his  road.  If  an  overseer 
shall  neglect  any  of  the  duties  prescribed  in  this  section,  for  the 
space  of  thirty  days  after  his  appointment  to  office,  he  shall  for- 
feit and  pay  fmir  dollars,  and  the  like  sum  for  every  thirty  days 
thereafter  the  said  marking  may  be  neglected. 
Code,  s.  2032;  R  C,  c.  101,  s.  20;  1784,  c.  227,  s.  11. 

2724.  Penalty  for  neglecting  duty.  Every  overseer  who  shall 
neglect  to  do  any  other  duty,  by  this  chapter  directed  to  be  done, 
or  who  shall  not  keep  the  roads  and  bridges  clear  and  in  repair,  or 
shall  let  them  remain  uncleared  or  out  of  repair,  during  the  space 
of  ten  days,  unless  hindered  by  extreme  bad  weather,  shall  for- 
feit for  every  such  offense  four  dollars,  and  be  liable  for  such  dam- 
ages as  may  be  sustained:  Provided,  that  nothing  in  this  section 
shall  excuse  any  neglect  of  duty  by  an  overseer,  as  the  same  is 
prescribed  in  any  other  part  of  this  chapter. 

Code,  s.  2033;  R.  C,  c.  101,  s.  21;  1784,  c.  227,  s.  14. 

IX.     Who  to  Work. 

2725.  Who  liable.  All  able-bodied  male  persons  between  the  ages 
of  eighteen  years  and  foi'ty-five  years  (between  twenty -one  years  and 
forty-five  years  in  Columbus  and  Tyrrell  counties)  shall  be  required 
under  the  provisions  of  this  chapter  to  work  on  the  public  roads,  ex- 
cept the  members  of  the  board  of  supervisors  of  public  roads ;  but  no 
person  shall  be  compelled  to  work  more  than  six  days  in  any  one 
year,  except  in  case  of  damage  resulting  from  a  storm:  Provided,  that 
ten  days  instead  of  six  days  shall  be  the  limit  as  to  the  counties  west 
of  the  Blue  Ridge. 

Code,  s.  2017;  1879,  c.  82,  s.  4;  1880,  c.  30,  s.  2;  1826,  c.  26;  100.5,  c.  136. 

2726.  Who  exempt;  how  exemption  obtained.  No  person  be- 
tween the  ages  prescribed  shall  bo  exempted  from  working  upon  the 
public  roads,  except  such  as  shall  be  exempted  by  the  general  assem- 
bly, or  by  the  board  of  supervisors  of  the  township,  on  account  of 
personal  infirmity,  of  which  the  said  board  sliall  be  the  sole  judge. 

Code,  s.  2018;  11.  C.,  c.  101.  s.  12;  1784,  c.  227,  ss.  8,  9;  1826,  c.  26,  ss.  1,  2. 

X.      General  Provi.sions. 

2727.  Traction  engines  allowed  on  roads,   it  shall  be  lawful 

for  any  person  to  rmi  and  use  traction  engines  and  road  steamers 
upon  the  public  roads. 
Code,  s.  2061;  18701,  c.  162. 


2728  EOADS,  ETC.— X.   General  Provisions.  Cli.   05 

2728.  Owners  of  land  or  timber  used  on  road,  remedy  for.  The 

owner  of  any  IiukI  or  liinbcr  used  for  buililliig  or  repairing  public 
roads,  may  tile  his  petition  before  the  board  of  commissioners  of 
the  county  wherein  the  injury  is  done ;  and,  for  damages  sustained 
thereby,  the  board  shall  make  the  petitioner  adequate  compensation : 
Provided,  that  this  and  section  two  thousand  seven  hundred  and  nine- 
teen shall  not  apply  to  the  lands  adjoining  or  contiguous  to  the  cause- 
way, or  great  road  leading  across  Eagle's  island  to  Wilmington. 
Code,  s.  2028;  E.  C,  c.  101,  s.  16;  1818,  c.  976,  s.  2. 


CIIAPTEE  G6. 
SALARIES  AND  FEES. 

Sections. 
I.     Legislative  department,  2729 — 2735 

II.     Executive  department,  2736—2763 

III.  Judicial  department,  2764 — 2771 

IV.  General  provi.sion,  2772 
V.     Countv  ollicprs,                                                       2773—2786 

VI.     T()\Mi>liii.  .illicers,  2787—2789 

VII.     ('nimiii>Mnii,.rs.  2790—2797 

VIII.     Miscellaneous.  2798-2807 

I.      Legis],ative  Department. 

2729.  Members  of  general  assembly  and  presiding  officers. 

The  members  of  the  general  assembly  for  the  term  for  which  they 
have  been  elected,  shall  receive  as  a  compensation  for  their  ser- 
vices the  sum  of  four  dollars  per  day  for  each  day  of  their  ses- 
sion, for  a  period  not  exceeding  sixty  days ;  and  should  they  remain 
longer  in  session,  they  shall  serve  without  compensation.  They 
shall  also  be  entitled  to  receive  ten  cents  per  mile,  both  while  com- 
ing to  the  seat  of  government  and  while  returning  home,  the  said 
distance  to  be  comjiuted  by  the  nearest  line  or  route  of  public  travel. 
The  compensation  of  the  presiding  officers  of  the  two  houses  shall  be 
six  dollars  per  day  and  mileage.  Should  an  extra  session  of  the 
general  assembly  be  called,  the  members  and  presiding  officers  shall 
receive  a  like  rate  of  compensation  for  a  period  not  exceeding  twenty 
days. 

Const.,  Art.  II,  s.  28. 

2730.  Clerks  and  doorkeepers.    The  princii)al  and  his  assistant 
clerks,    the   engrossing   clerks   and   doorkeepers   and    assistant    door- 

■    815 


2730       SALARIES  AXD  FEES—/.  Legislative  Dept.       Ch.   GG 

keei^ers  of  the  general  assembly,  and  the  chief  clerk  and  assistants, 
appointed  by  the  secretary  of  state  to  supervise  the  enrolhnent  of 
bills  and  resolutions,  shall  each  receive  four  dollars  per  day,  during 
the  session  of  the  general  assembly,  and  the  same  mileage  as  mem- 
bers of  the  general  assembly. 

Code,  ss.  2871,  2872;  1903,  c.  5,  s.  2;  1901,  c.  631;  ISOO,  cc.  G,  7:  1897,  c.  52. 

2731.  Copyists.  Copyists  employed  in  copying  engrossed  or  en- 
rolled bills  and  resolutions  of  the  general  assembly  shall  receive 
ten  cents  per  copy  sheet,  which  shall  include  the  making  of  one  car- 
bon copy. 

1903,  c.  5. 

2732.  Principal   clerks;   extra   compensation.  The  principal 

clerks  of  the  general  assembly  shall  be  allowed  one  hundred  dollars 
as  a  compensation  for  indexing  the  journals  of  their  respective 
houses,  and  two  hundred  dollars  each  for  extra  work  and  for  serv- 
ices required  to  be  performed  by  them  after  the  adjournment  of 
each  session  of  the  general  assembly,  including  the  transcribing  of 
a. copy  of  their  respective  journals,  which  shall  be  filed  in  the  office 
of  the  secretary  of  state. 

Code,  s.  2868;  1866-7,  c.  71;  1881,  c.  292. 

2733.  Indexing  laws,  etc.  The  assistant  to  the  secretary  of  state 
who  shall  index  the  laws  and  prepare  the  laws  and  captions  for 
publication  shall  receive  a  compensation  of  iive  hundred  dollars. 

1903,  c.  3. 

2734.  Temporary  doorkeepers.  The  persons  appointed  to  place 
the  two  halls  of  the  general  assembly  in  order,  and  to  wait  upon  the 
members  luitil  doorkeepers  can  be  regularly  appointed,  shall  be 
allowed,  as  a  compensation,  the  sum  of  four  dollars  each  for  their 
daily  attendance  and  services. 

Code,  s.  2871;  E.  C,  c.  52,  s.  38;  184G,  e.  63,  s.  2. 

2735.  Employees,  how  paid.  The  auditor  is  authorized  to  audit 
the  account  of  any  employee  of  the  senate  or  of  the  house  of  repre- 
sentatives, upon  the  certificate  of  the  president  of  the  senate  and  of 
the  speaker  of  the  house  of  representatives  that  such  services  have 
been  rendered  for  which  the  account  is  presented,  and  that  the 
amount  as  stated  in  said  account  is  reasonable,  just  and  proper. 

Code,  s.  2873;  1870-1,  ros.  p.  508. 

II.     Executive  Depaetment. 

2736.  Governor.  The  salary  of  the  governor  shall  bo  four  thou- 
sand dollars  ]ier  amuuu. 

Code,  s.  3720;   1901,  o.  8;   1879.  c.  240. 

sk; 


27:37        SALiVEIES  AND  FEES—//.  Executive  Dept.        Ch.   06 

2.121.  Private  secretary.  The  i^rivate  secretary  to  the  governor 
shall  be  allowed  an  annual  salary  of  twelve  hundred  dollars,  and  he 
shall  charge  and  collect  the  following  fees,  to  be  paid  by  the  persons 
for  whom  the  services  are  rendered,  namely:  For  the  commission  of 
a  judge,  solicitor,  senator  in  congress,  representative  in  congress, 
notary  public,  or  a  place  of  profit,  two  dollars  and  fifty  cents  each ; 
for  a  testimonial,  one  dollar ;  for  affixing  the  seal  to  a  grant,  twenty- 
five  cents ;  and  for  affixing  the  great  seal  of  the  state  to  state  bonds, 
ten  cents.  All  fees,  except  fifty  cents  on  each  commission  issued, 
which  shall  be  retained  by  the  private  secretary  for  his  services, 
received  by  the  private  secretary  shall  be  paid  into  the  treasury 
quarterly.  He  shall  be  ex  officio  secretary  of  the  board  of  internal 
improvements,  and  shall  be  allowed  five  dollars  per  day  for  each  day 
the  board  is  in  session. 

Code,  ss.  1689,  3721;  1901  (Pr.),  c.  405;  R.  C,  c.  102,  s.  12;  1856-7,  p.  71, 
res.;  1881,  c.  346;  1903,  e.  729. 

2738.  Executive  Clerl<.  The  governor  is  allowed  a  clerk  at  a 
salary  of  six  hundred  dollars  per  annvmi. 

Code,  s.  3722;  1876-7,  p.  589,  res.;  1881,  c.  218. 

2739.  Treasurer.  The  salary  of  the  treasurer  shall  be  three  thou- 
sand dollars  per  annum.  He  shall  be  allowed  two  clerks,  at  salaries 
respectively  of  fifteen  hundred  and  seven  hundred  and  fifty  dollars 
per  annum,  and  an  institutional  clerk,  at  a  salary  of  one  thousand 
dollars  per  annum. 

Code,  s.  3723;  1891,  c.  505. 

2740.  Committee  to  examine  treasurer's  and  auditor's  books. 

The  connnittee  appointed  by  the  general  assembly  to  examine  the 
books  of  the  treasurer  and  auditor  and  insurance  commissioner  shall 
receive  the  same  per  diem  for  the  number  of  days  engaged  at  the 
offices  in  Raleigh,  and  mileage  to  and  from  the  city  of  Raleigh,  as  is 
received  by  members  of  the  general  assembly. 
Code,  s.  3360;  1885,  c.  334. 

2741 .  Secretary  of  state.  The  salary  of  the  secretary  of  state  shall 
be  two  thousand  dollars  per  annum,  and  one  thousand  two  hundred 
dollars  for  clerical  assistance.  All  fees  received  by  said  officer  shall 
be  paid  into  the  treasury,  unless  otherwise  directed  by  law ;  such  fees 
to  be  paid  in  quarterly.  The  secretary  of  state  shall  also  be  allowed 
one  thousand  dollars  for  additional  clerical  assistance  in  the  dis- 
charge of  the  duties  of  his  office,  and  the  treasurer  shall  pay  the 
same,  upon  the  warrant  of  the  auditor,  out  of  the  fees  collected  by  the 
secretary  of  state  and  paid  into  the  treasury.  The  secretary  of  state 
shall  appoint  a  clerk,  who  shall  be  designated  the  cor]ioration  clerk. 

Rev.  Vol.  1—48  817 


2741        SAL.\EIES  AND  FEES— 7/.  Executive  Dept.        Ch.  66 

He  shall  be  paid,  out  of  the  moneys  derived  from  the  ornaiiization 
taxes  on  corporations,  a  salary  of  twelve  hundred  dollars  per  annum, 
and  shall  perform  such  duties  as  the  secretary  of  state  shall  require 
of  him. 

Code,  s.  3724;  1901,  c.  2,  s.  108;  1005,  c.  549;  1879,  c.  240,  s.  6;  1881,  p.  632, 
res. 

2742.  Secretary  of  state;  fees  collected  by.  The  secretary  of 

state  shall  ci.illect  the  following  fees,  namely:  Copying  and  certifying 
a  will,  grant  or  patent  not  exceeding  two  copy-sheets,  hfty  cents,  and 
for  every  additional  cojay-sheet,  ten  cents;  correcting  an  error  not 
made  by  himself  in  a  patent,  fifty  cents;  copying  and  certifying  a 
plot  and  survey,  fifty  cents  for  each  warrant  or  for  each  six  hundred 
and  forty  acres  contained  in  the  plot  or  survey,  not  to  exceed  five  dol- 
lars for  one  copy;  receiving  surveyor's  return,  making  out,  record- 
ing and  endorsing  grants,  sixty  cents ;  each  certificate,  ten  cents ; 
filing  and  recording  a  copy  of  a  judgment  vacating  a  gTant  and  all 
other  services  thereon,  fifty  cents;  copying  an  entry  from  the  jour- 
nals of  the  assembly,  forty  cents ;  copying  and  certifying  the  laws  of 
other  states,  twenty  cents  for  each  copy-sheet;  and  in  all  cases  not 
otherwise  provided  for,  the  secretary  of  state  shall  receive  for  copies 
of  records  from  his  office,  one  dollar  for  the  first  three  copy-sheets 
and  ten  cents  a  copy-sheet  thereafter. 

Code,  s.  3725;  R.  C,  c.  102,  s.  13;   1870-1,  c.  81,  s.  3;   1881,  c.  79. 

2743.  Fees  on  returns  to  secretary  of  state.  All  oSieers  re- 
quired to  make  returns  to  the  secretary  of  state  shall  receive  for 
such  returns  five  cents  per  copy-sheet,  to  be  audited  on  the  certifi- 
cate of  the  secretary  of  state,  and  paid  as  other  claims  against  the 
state. 

Code,  s.  3759;  1868-9,  c.  279,  s.  557. 

2744.  Auditor.  The  auditor  shall  receive  a  salary  of  fifteen 
hundred  dollars  per  annum,  and  shall  be  allowed  no  fee  or  other 
compensation  whatever.  He  shall  be  allowed  one  clerk  at  a  salary 
of  one  thousand  dollars  per  annum;  and  he  is  authorized  to  enx])lov 
additional  clerical  assistance  in  his  office,  and  for  that  purpose  shall 
be  allowed  the  sum  of  five  hundred  dollars ;  and  he  is  further  author- 
ized to  expend  annually  oixt  of  the  pension  fund,  as  he  may  deem 
best  and  necessary  to  the  more  certainly  carrying  into  effect  the  pen- 
sion laws,  the  sum  of  three  hundred  dollars. 

Code,  s.  3726;  1879,  c.  240,  s.  7;  1881,  e.  213;  1885,  c.  352;  1899,  c.  433;  1891, 
c.  334,  s.  5. 

2745.  Superintendent  of  public  instruction.  The  superintendent 

of  public  instruction  shall  receive  an  annual  salary  of  two  thousand 


2745        SALAKIES  AND  FEES— 77.  Executive  Dept.        Cli.   66 

(li)llars  and  one  thousand  dollars  per  annum  in  lieu  of  and  in  com- 
mutation for  traveling  expenses.  He  shall  be  allowed  two  clerks, 
at  a  salary  of  one  thousand  two  hundred  and  fifty  dollars  per  aimum 
each,  one  to  be  paid  out  of  the  loan  fund  for  building  school-houses; 
and  a  stenographer  at  six  hundred  dollars  per  annum. 

Code,  s.  3727;  1901,  c.  4,  ss.  9,  11;  1903,  c.  435,  s.  2;  1903,  c.  567,  s.  G;  1903, 
c.  603;  1S79,  c.  240,  s.  8;  1905,  e.  533,  ss.  2,  15,  16. 

2746.  Attorney  general.  The  attorney  general  shall  receive  an 
annual  salary  of  two  thousand  dollars  and  also  one  hundred  dollars 
for  each  terra  of  the  sviprerae  court  which  he  shall  attend  and  the  fees 
allowed  by  law.  He  shall  be  allowed  a  clerk  at  a  salary  of  six 
hundred  dollars  per  annum. 

Code,  ss.  3728,  3729;   1889,  c.  274;   1893,  c.  379. 

2747.  Fees  of  attorney  general.  In  all  appeals  to  the  supreme 

court  of  persons  convicted  of  criminal  offenses,  a  fee  of  ten  dollars 
against  each  person  who  shall  not  reverse  the  judgment  shall  be 
allowed  the  attorney  general,  to  be  taxed  among  the  costs  of  that 
court. 

Code,  s.  3737 ;  1873-4,  c.  170. 

Note.     For  fees  in  actions  by  corporation  commission,  see  s.  1092. 

2748.  State  librarian.  The  salary  of  the  state  librarian  shall  be 
one  thousand  dollars  per  annum.  He  shall  be  allowed  one  assistant, 
at  a  salary  of  three  himdred  dollars  per  annum.  He  shall  be  allowed 
the  sum  of  two  hundred  and  fifty  dollars  per  annum  for  services  as 
custodian  of  the  document  library,  and  the  sum  of  one  dollar  per  day 
during  the  sessions  of  the  general  assembly,  for  keeping  the  docu- 
ment library  open.  The  state  librarian  shall  be  allowed  to  charge 
the  fee  of  fifty  cents  for  each  seal  and  certificate,  and  in  addition 
thereto  he  shall  receive  ten  cents  per  copy-sheet  for  all  documents, 
papers,  copies  of  instruments  of  every  description  whatsoever  per- 
taining to  his  ofiice  which  he  shall  be  called  upon  to  furnish  to  any 
person  interested  in  same,  to  be  paid  by  party  securing  such  copy  of 
record. 

Code,  s.  3604;  1901,  c.  503,  s.  1;  1887,  c.  258,  s.  3;  1889,  res.,  p.  519:  1905, 
c.  537. 

2749.  Commissioner  of  agriculture.   The  board  of  agriculture 

may  fix  the  salary  of  the  commissioner  of  agi'iculture  not  to  exceed 
two  thousand  one  hundred  and  fifty  dollars  per  annum,  which  shall 
be  paid  out  of  the  fertilizer  tax  fund. 
1901,  c.  479,  s.  4;  1905,  c.  529. 

2750.  Adjutant  general.  The  salary  of  the  adjutant  general  shall 
be  one  thousand  dollars  per  annum.     The  adjutant  general  shall  be 

819 


2750        SALAEIES  AND  FEES— 77.  Execulice  Dept.        Ch.   06 

allowed  all  such  necessary  expenses  as  may  be  incurred  in  printing, 
clerk  hire,  making  the  blank  forms,  books,  orders  and  reports 
required  in  his  office  not  to  exceed  one  thousand  dollars. 

Code,  ss.  3275,  3730;  1899,  c.  390,  ss.  2.  3;   1879,  c.  240,  s.  10;   1883,  c.  283,  s.  2. 

2751.  Paymaster  general.  The  paymaster  general  shall  receive 
an  annual  salary  of  live  hundred  dollars,  payable  out  of  the  appro- 
priation for  the  support  of  the  national  guard  in  this  state. 

1903,  c.  548,  s.  7. 

2752.  Quartermaster  general.  The  quartermaster  general  shall 
receive  an  annual  salary  of  five  hundred  dollars,  payable  out  of  the 
appropriation  for  the  support  of  the  national  guard  in  this  state. 

1890.  c.  390,  s.  2. 

2753.  Commissioner  of  labor  and  printing.   The  salary  of  the 

commissioner  of  labor  and  printing  shall  be  fifteen  hundred  dollars 
per  annum;  and  the  salary  of  the  assistant  commissioner  shall  be 
nine  hundred  dollars  per  annum.  They  shall  also  receive  their  actual 
traveling  expenses  while  traveling  for  the  pui'pose  of  collecting  the 
information  and  statistics  as  provided  by  law. 
1899,  c.  373,  s.  3. 

2754.  Corporation  commissioners.  The  salary  of  the  corpora- 
tion commissioners  shall  be  two  thousand  dollars  per  annum  each, 
and  in  addition  thereto  five  hundred  dollars  per  annum  each  as  state 
tax  commissioners ;  and  also  actual  traveling  expenses  while  on  offi- 
cial business.  They  may  elect  a  clerk,  who  shall  be  an  expert  accoiuit- 
ant,  experienced  in  railroad  statistics  and  transportation  rates,  whose 
salary  shall  be  fifteen  hundred  dollars  per  annum,  and  the  commis- 
sioners may,  out  of  the  expense  fund  of  the  corporation  commission, 
allow  such  clerk  an  extra  allowance  above  his  regular  salary  in  such 
manner  as  in  their  judginent  may  be  expedient,  not  exceeding  three 
hundred  dollars.  They  may  employ  such  clerks  as  they  may  deem 
necessary  for  the  purpose  of  putting  into  eifect  the  provisions  of  the 
law  as  to  the  work  of  the  state  tax  commission,  and  shall  pay  such 
clerks  each  such  sum  and  in  such  manner  as  tliey  may  think  proper, 
the  total  not  exceeding  the  sum  of  fifteen  hundred  dollars  a  year. 

1899,  c.  164,  s.  31:  1899,  c.  688;  1901,  c.  7,  s.  2 ;  1905.  c.  590,  s.  3:  1903,  c.  251. 
8S.  2,  3. 

2755.  Bank  examiners.  One  examination  each  year  shall  be  des- 
ignated as  the  annual  examination,  and  for  each  examination  the 
bank,  corporation,  association,  or  individual  so  examined  shall  pay 
into  the  office  of  the  corporation  commission,  to  be  paid  to  the  examin- 
ers, an  examination  fee  as  follows:    Baid^s,  banking  institutions  or 

820 


l'755        salaries  and  FEES— 77.  Executive  Dept.        Ch.   66 

individuals  doing  a  banking  business,  having  a  capital  of  twenty- 
live  thousand  dollars  or  less,  shall  pay  a  fee  of  fifteen  dollars;  those 
liaving  a  capital  stock  of  more  than  twenty-five  thousand  dollars  and 
111  it  over  fifty  thousand  dollars,  twenty-five  dollars;  those  having  a 
lapital  stock  of  over  fifty  thousand  dollars,  thirty  dollars.  The  ex- 
penses incurred  and  services,  other  than  examinations  performed 
c-ipecially  for  any  bank,  shall  be  paid  by  such  bank  or  banlving  insti- 
tution. No  bank  shall  be  compelled  to  pay  for  more  than  one  exami- 
nation in  each  year,  unless  it  shall  appear  from  report,  examination 
or  otherwise  that  the  condition  of  any  bank  or  banking  institution 
or  banker  is  precarious,  or  in  any  way  unsatisfactory,  when  it  shall 
lie  the  duty  of  the  commission  to  order  a  special  examination,  which 
^liall  be  paid  for  as  regular  examinations. 
1903,  c.  275,  3.  25. 

2756.  Insurance  commissioner.  The  salary  of  the  insurance 
commissioner  shall  be  two  thousand  dollars  per  annum.  He  may- 
employ  in  his  department  such  clerical  aid  as  he  may  deem  necessary, 
at  an  exjjense  not  exceeding  sixteen  hundred  dollars  per  annum.  To 
reimburse  the  commissioner  for  his  services  and  expenses  in  inspect- 
ing state  property  and  placing  insurance  thereon,  he  is  allowed  to 
collect  a  sum  not  exceeding  three  per  centtim  of  the  premiums 
thereon  of  the  agent  writing  the  insurance. 

1899,  e.  54,  ss.  3,  8;  1901,  c.  710;  1903,  c.  42:  1903.  c.   771,  s.  3. 

2757.  Geological  board;  geologist  and  assistants,  in  attend- 
ing its  meetings  the  members  of  the  geological  board  shall  be  reim- 
bursed the  amount  of  their  actual  traveling  expenses,  and  members 
not  otherwise  receiving  a  salary  from  the  state  may  in  addition  be 
paid  a  per  diem  of  four  dollars  for  not  exceeding  eight  days  during 
any  one  year.  The  compensation  of  the  state  geologist  and  of  such 
experts  and  assistants  shall  be  fixed  by  the  geological  board. 

1905,  e.  542.  ss.  2,  3. 

2758.  Board  of  internal  improvements.   The  members  of  the 

board  of  internal  imiivoveinonts  shall  receive,  each,  five  dollars  per 
day,  and  their  traveling  expenses  for  the  time  they  may  be  employed 
in   the   public   service. 

Cade.  s.  1089;  1903,  c.  729. 

2759.  State  standard-keeper.  The  state  standard-keeper  shall 
be  allowed  such  compensation  for  his  services  as  the  governor  shall 
deem  adequate,  not  exceeding  one  hundred  dollars  a  year. 

Code,  s.  3845;  180G-7,  p.  228;  1881,  c.  199,  s.  4. 


27fiO        SALAEIES  AND  FEES—//.  Executive  DepL        Ch.   66 

2760.  state  board  of  elections.  The  members  of  the  state  board 
of  elections  shall  receive  in  full  eiimpensation  for  their  services  four 
dollars  per  day  for  the  time  they  are  actually  engaged  in  the  dis- 
charge of  their  duties,  together  with  their  actual  traveling  expenses, 
and  such  other  expenses  as  are  necessary  and  incident  to  the  dis- 
charge of  the  duties  imposed  by  the  law  relating  to  elections. 

mOl,  c.  R!),  o.  7. 

2761.  Presidential  electors.  Presidential  electors  shall  be  al- 
lowed for  their  traveling  expenses  to  and  from  the  city  of  Raleigh 
and  their  attendance,  the  same  compensation  as  may  be  allowed  mem- 
bers of  the  general  assembly,  and  shall  be  entitled  to  the  same  privi- 


1901,  e.  S9,  s.  S4. 

2762.  Laborers.  The  governor's  office,  the  treasurer's  office,  the 
auditor's  office,  the  secretary  of  state's  office  and  the  state  librarian's 
office  shall  each  be  allowed  one  servant,  and  the  offices  of  superintend- 
ent of  public  instruction  and  attorney  general,  one  together.  The  jus- 
tices of  the  supreme  court  shall  be  allowed  to  employ  one  servant. 
Such  servants  shall  receive,  as  coni]iensation,  the  sum  of  seven  dollars 
per  week,  to  be  paid  by  the  treasurer  on  the  pay-rolls  of  the  keeper  of 
the  capitol.  The  night-watchman  and  janitor  shall  each  receive  as 
compensation  one  and  one-half  dollars  per  day  for  their  services. 

Code,  s.  3732;  1893,  e.  306;  1899,  c.  482;  1901,  c.  624. 

2763.  Laborer's  leave  of  absence,  commutation.  Every  la- 
borer, waiter  and  messenger  permanently  employed  under  authority 
of  law  in  and  about  the  public  buildings  and  grounds  at  a  salary 
not  exceeding  four  hundred  dollars  per  annum,  who  shall  have  served 
faithfully  therein  for  the  space  of  one  continuous  year,  shall  be  enti- 
tled to  fifteen  days  leave  of  absence  per  aniumi,  with  full  pay  at 
the  end  of  every  year  of  s\ich  service. 

1S97,  e.  274. 

III.     Judicial  Department. 

2764.  Supreme  court  justices.  Each  justice  of  the  supreme 
court  shall  be  paid  an  annual  salary  of  three  thousand  dollars, 
and  two  hundred  and  fifty  dollars  per  annum  in  lieu  of  and  in  com- 
mutation for  traveling  expenses.  They  shall  aLso  be  allowed  two 
hundred  dollars  per  annimi  each  for  a  clerk. 

Code,  s.  3733;  1891,  c.  193;  1903,  c.  805;  1905,  c.  208. 

2765.  Superior  court  judges.  The  salary  of  each  of  the  judges  of 
the  sujieriiir  cnurt  shall  be  three  thousand  dollars  per  annum,  and 
two  hundred  and  fifty  dollars  per  annum  in  lieu  of  and  in  coramu- 


27t)5        SALAEIES  AND  FEES—///.  Judicial  Dept.        Ch.  66 

tation  for  traveling  expenses.  They  shall  also  receive  their  actual 
expenses  incurred  in  attending  and  holding  special  terms  of  court 
by  assignment  of  the  governor,  which  expenses  shall  be  paid  by  the 
county  in  which  such  special  term  is  held. 

Code,  ss.  918,  3734;  1891,  c.  193;  1901,  c.  167;  1905,  c.  208. 

2766.  Certificates  of  courts  held  by  judges.   Every  judge  of 

the  superior  court  shall  produce  a  certificate  from  the  clerk  of  each 
county  of  his  having  held  the  court  of  the  county  according  to  law ; 
and  for  every  such  certificate  omitted  to  be  produced,  there  shall 
be  a  deduction  from  his  salary  of  one  hundred  dollars,  unless  he 
shall  be  prevented  by  sickness  or  other  unavoidable  cause. 
Code,  s.  3735;  R.  C,  c.  102,  s.  4;  18G8-9,  c.  46,  s.  7;  1879,  c.  240,  s.  5. 

2767.  Solicitors.  The  solicitors  of  the  several  judicial  districts 
shall  receive  twenty  dollars  for  each  term  of  the  superior  court  they 
shall  attend,  warrant  by  the  auditor  to  issue  therefor  ujaon  a  certifi- 
cate of  such  attendance  from  the  clerk  of  the  court ;  and  the  fees  as 
prescribed  in  the  following  section. 

Code,  s.  3736;   1879,  c.  240,  s.  12. 

2768.  Fees  of  solicitors.  The  solicitors  shall,  in  addition  to  the 
general  compensation  allowed  them  by  the  state,  receive  the  follow- 
ing fees,  and  no  other,  namely : 

For  every  conviction  upon  an  indictment  which  they  may  prose- 
cute for  a  capital  crime,  twenty  dollars. 

For  perjury,  forgery,  counterfeiting,  passing  or  attempting  to 
pass  or  sell  any  forged  or  counterfeited  paper  or  evidence  of  debt; 
maliciously  injuring  or  attempting  to  injure  any  railroad  or  rail- 
road car,  or  any  jjerson  traveling  on  such  railroad  car ;  stealing  or 
obliterating  records ;  stealing,  concealing,  destroying  or  obliterating 
any  will;  malicioiisly  burning  or  attempting  to  burn  houses  or 
bridges ;  misdemeanors  of  accessories  after  the  fact  to  felonies ;  in 
each  of  the  above  cases,  ten  dollars. 

For  larceny,  receiving  stolen  goods,  embezzlement,  frauds,  maims, 
deceits  and  escapes,  five  dollars. 

For  all  other  oft'enses,  four  dollars. 

The  fees  in  all  the  above  cases  are  to  be  taxed  in  the  costs  against 
the  party  convicted ;  but  where  the  party  convicted  is  insolvent,  the 
solicitor's  fees  shall  be  one-half,  to  be  paid  by  the  county  in  which 
the  indictment  was  found,  except  that  for  convictions  in  capital 
felonies,  forgery,  perjury  and  conspiracy,  when  they  shall  receive 
full  fees:  Provided,  that  no  larger  fee  than  ten  dollars  shall  be  taxed 
for  the  solicitor  in  any  indictment  against  the  justices  of  the  peace 
of  any  county,  as  justices,  when  there  are  more  tiian  three  justices 
who  are  found  guilty. 


27CS         SALARIES  AXD  FEES—///.  Judicial  Dept.       Ch.  66 

The  solicitors  of  the  several  judicial  districts  and  criminal  courts 
shall  prosecute  all  penalties,  and  forfeited  recognizances  entered 
in  their  courts  respectively',  and  as  compensation  for  their  services 
shall  receive  a  sum  to  be  fixed  by  the  court,  not  more  than  five  per 
centum  of  the  amount  collected  upon  such  penalty  or  forfeited  re- 
cognizance. 

For  performing  his  duty  for  the  appointment  of  a  receiver  of  an 
estate  of  a  minor,  they  shall  receive  not  to  exceed  ten  dollars,  to  be 
fixed  by  the  judge ;  and  in  passing  on  the  returns  of  the  receivers  in 
.such  cases  where  the  estate  of  the  infant  does  not  exceed  five  hun- 
dred dollars,  the  fee  of  the  solicitor  shall  not  exceed  five  dollars, 
and  where  the  estate  exceeds  five  hundred  dollars,  his  fee  shall  not 
exceed  ten  dollars,  to  be  fixed  by  the  judge,  and  in  each  case  to  be 
paid  out  of  the  fund. 

Code,  s.  3737;   1885,  c.  130;   1895,  c.  14;   1901,  c.  4,  s.  5;   1873-4,  c.  170. 
Note.     For  suits  by  corporation  commission,  see  s.  1092. 
For  fees  for  investigating  lynchings,  see  s.  1288. 

2769.  Supreme  court  clerk.  The  clerk  of  the  supreme  court 
shall  receive  an  annual  salary  of  three  hundred  dollars,  to  be  paid 
semi-annually,  on  a  certificate  of  the  justices;  and,  in  addition 
thereto,  the  following  fees,  namely :  For  recording  the  papers  and 
proceedings  in  the  causes  decided  in  the  supreme  court,  which  are 
required  by  law  to  be  recorded,  such  compensation  as  may  be  esti- 
mated by  the  justices  of  the  court  at  each  term,  not  to  exceed  thirty 
cents  for  each  page  recorded,  to  be  paid  by  the  treasurer  on  the  certifi- 
cate of  the  justices ;  for  entering  an  appeal,  one  dollar ;  a  con- 
tinuance, thirty  cents ;  a  scire  facias,  eighty  cents ;  a  certiorari,  eighty 
cents;  a  determination,  two  dollars;  a  certificate,  sixty  cents;  a 
fieri  facias,  or  other  execution,  fifty  cents ;  a  seal,  twenty-five  cents ; 
a  transcript,  or  copy  of  a  record,  twenty  cents  for  each  copy-sheet; 
a  rule  given  for  service,  twenty-five  cents ;  a  rule  not  for  service, 
fifteen  cents ;  a  subpoena,  writ,  or  other  process,  one  dollar ;  a  com- 
mission, fifty  cents;  drawing  a  decree  or  judgment,  by  the  copy- 
sheet,  forty  cents ;  a  search,  ten  cents ;  aflixing  the  seal  to  any  writ- 
ing requiring  it,  twenty-five  cents ;  and  nn  affidavit,  twenty-five  cents. 

Code,  s.  3738;  R.  C,  c.  102,  ss.  25,  26;  18701,  c.  139,  s.  7. 

2770.  Supreme  court  marshal.  The  salary  of  the  marshal  of 
the  supreme  court  sliall  be  une  thousand  dollars  per  annum;  and  he 
shall  perform  the  duties  of  librarian  witlumt  additional  compensa- 
tion. 

Code,  .ss.  950,  3000:   1889,  c.  482;   1873-4,  c.  34;   1881.  c.  300. 
Note.     See  s.  1555. 


2771        SALARIES  AND  FEES—///.  Judicial  Dept.        Ch.   66 

2771.  Supreme  court  reporter.  The  compensation  of  the  su- 
preme court  reporter  shall  not  exceed  one  thousand  two  hundred 
and  fifty  dollars  per  annum,  to  be  fixed  by  the  court. 

Code,  ss.  33G3,  3728;  1893,  e.  379;  1897,  c.  429. 


Note.     See  s.  1552. 

IV.     General  Pkovisiojv. 

2772.  Salaries  payable  monthly.  All  annual  salaries  shall  be 
paid  monthly  out  of  any  money  in  the  treasiiry  not  otherwise  appro- 
priated. 

Code,  s.  3731;  1893,  c.  54. 

V.     County  Okficers. 

2773.  Superior  court  clerk.  The  fees  of  the  clerk  of  the  su- 
perior court  shall  be  the  following,  and  no  other,  namely : 

Advertising  and  selling  under  mortgage  in  lieu  of  bond,  two  dol- 
lars for  sales  of  real  estate  and  one  dollar  for  sales  of  personal  prop- 
erty.   See  s.  266. 

Affidavit,  including  jurat  and  certificate,  twenty-five  cents. 

Appeal  from  justice  of  the  peace,  fifty  cents. 

Appeal  from  the  clerk  to  the  judge,  fifty  cents. 

Appeal  to  the  supreme  court,  including  certificate  and  seal,  two 
dollars. 

Appointing  and  qualifying  justices  of  the  peace,  to  be  paid  by 
the  justice,  twenty-five  cents. 

Apprenticing  infant,  including  indenture,  one  dollar. 

Attachment,  order  in,  fifty  cents. 

Auditing  account  of  receiver,  executor,  administrator,  guardian 
or  other  trustee,  required  to  render  accounts,  if  not  over  three  hun- 
dred dollars,  fifty  cents ;  if  over  three  hundred  dollars  and  not  ex- 
ceeding one  thousand  dollars,  eighty  cents;  if  over  one  thousand  dol- 
lars, one  dollar. 

Auditing  final  settlement  of  receiver,  executor,  administrator, 
guardian  or  other  trustee,  required  to  render  accounts,  one-half  of  one 
per  cent,  of  the  amount  on  which  commissions  are  allowed  to  such 
trustee,  for  all  sums  not  exceeding  one  thousand  dollars ;  and  for  all 
Slims  over  one  thousand  dollars,  one-tenth  of  one  per  cent,  on  such 
excess;  but  such  fees  shall  not  exceed  fifteen  dollars,  unless  there  be 
a  contest,  when  the  clerk  shall  have  one  per  cent,  on  the  said  excess 
over  one  thousand  dollars;  but  in  no  instance  shall  his  fees  exceed 
twenty-five  dollars. 


2773        SAL^VRIES  AXD  FEES— 1'.   County  Officers.        Ch.  6C 

Auditing  and  recording  the  final  account  of  commissioners  ap- 
l^oiuted  to  sell  real  estate,  one-half  of  the  fees  allowed  for  auditing 
and  recording  final  accounts  of  executors. 

Bill  of  costs,  preparing  same,  twenty-five  cents. 

Bond  or  undertaking,  including  justification,  sixty  cents. 

Cancelling  notice  of  lis  pendens,  twenty-five  cents. 

Capias,  each  defendant,  one  dollar. 

Capias,  when  the  defendant  is  not  arrested  thereunder,  shall  \>r 
such  sum  as  the  commissioners  of  his  county  may  allow. 

Caveat  to  a  will,  entering  and  docketing  same  for  trial,  one  dollar. 

Certificate,  except  where  it  is  a  charge  against  the  county,  twen- 
ty-five cents;  and  whei'e  it  is  a  charge  against  the  county,  the  fee 
shall  be  such  sum  not  exceeding  twenty-five  cents  as  the  board  of 
commissioners  shall  allow. 

Commission,  issuing,   seventy-five  cents. 

Continuance,  thirty  cents. 

Docketing  ex  parte  proceedings,  fifty  cents. 

Docketing  indictment,  twenty-five  cents. 

Docketing  liens,  twenty-five  cents. 

Docketing  judgment,  twenty-five  cents. 

Docketing  summons,  twenty-five  cents. 

Execution  and  return  thereon,  including  docketing,  fifty  cents ; 
and  certifying  return  to  clerk  of  any  county  where  judgment  is 
docketed,  twentv-five  cents. 

Filing  all  papers,  ten  cents  for  each  case. 

Guardian,  ai:)pointment  of,  including  taking  bond  and  j\istifica- 
tion,  one  dollar. 

Impaneling  jury,  ten  cents. 

Indexing  judgment  on  cross-index  book,  ten  cents  for  the  judg- 
ment regardless  of  number  of  parties. 

Indexing  liens  on  lien  book,  ten  cents. 

Indictment,  each  defendant  in   the  bill,  sixty  cfnts. 

Injunction,  order  for,  including  taking  bond  or  undertaking  and 
justification,  one  dollar. 

Jiidgment,  final,  in  term-time,  civil  action,  one  dollar. 

Judgment,  final,  against  each  defendant,  in  criminal  actions,  one 
dollar. 

Judgment,  final,  before  the  clerk,  fifty  cents. 

Judgment  by  confession,  without  notice,  all  services,  three  dciUavs. 

Judgment  in  favor  of  Avidow  for  year's  support,  fifty  cents. 

Judgment  nisi,  entering  against  a  defaulting  witness  or  juror,  on 
bail  bond  or  recognizance,  twenty-five  cents. 

Juror  ticket,  including  jurat,  ten  cents. 

Justification  of  sureties  on  any  bond  or  undertaking,  except  as 
otherwise  provided,  fifty  cents. 


2773        SALAEIES  AND  FEES— 7.   County  Officers.        Ch.   66 

Letters  of  administration,  including  bond  and  justification  of 
sureties,  one  dollar. 

Motions,  entry  and  record  of,  twenty-five  cents. 

Notices,  twenty-five  cents;  and  for  each  name  over  one,  in  same 
paper,  ten  cents  additional. 

Notifying  solicitors  of  removal  of  guardian,  one  dollar. 

Order  enlarging  time  for  pleading,  and  all  interlocutory  orders, 
in  special  proceedings  and  civil  actions,  twenty-five  cents. 

Order  of  arrest,  one  dollar. 

Order  for  appearance  of  apprentice,  on  complaint  of  master,  one 
dollar;  for  appearance  of  master  on  complaint  of  apprentice,  one 
dollar. 

Order  for  the  registration  of  a  deed  or  other  writing,  which  has 
been  proved  or  acknowledged  in  another  county,  or  before  a  judge, 
justice,  notary  or  other  officer,  except  a  chattel  mortgage,  twenty- 
five  cents. 

Postage,  actual  amount  necessarily  expended. 

Presentment,  each  person  presented,  ten  cents. 

Probate  of  a  deed  or  other  writing,  proved  by  a  witness,  includ- 
ing the  certificate,  twenty-five  cents. 

Probate  of  a  deed  or  other  writing,  acknowledged  by  the  signers 
or  makers,  including  all  except  married  women  who  acknowledge 
at  the  same  time,  with  the  certificate  thereof,  twenty-five  cents. 

Probate  of  a  deed,  or  other  writing,  executed  by  a  married  wo- 
man, for  her  acknowledgment  and  private  examination,  with  the 
certificate  thereof,  twenty-five  cents. 

Probate  of  a  chattel  mortgage,  including  the  certificate,  ten  cents. 

Probate  of  a  short  form  lien  bond,  or  lien  bond  and  chattel  mort- 
gage combined,  ten  cents,  in  the  following  counties :  Alamance,  Alle- 
ghany, Anson,  Ashe,  Beaufort,  Bladen,  Brunswick,  Buncombe,  Burke, 
Carteret,  Caswell,  Catawba,  Chatham,  Chowan,  Cleveland,  Colmnbus, 
Craven,  Cumberland,  Davie,  Duplin,  Durham,  Edgecombe,  Forsyth, 
Franklin,  Gaston,  Gates,  Granville,  Greene,  Harnett,  Iredell,  John- 
ston, Jones,  Lenoir,  Lincoln,  Martin,  McDowell,  Mecklenburg, 
Moore,  Nash,  New  Hanover,  Onslow,  Pender,  Perquimans,  Person, 
Pitt,  Polk,  Richmond,  Bobeson,  Rockingham,  Rowan,  Rutherford, 
Sampson,  Union,  Vance,  Washington,  Wataiiga,  Wayne,  Wilson. 

Probate  of  limited  partnership,  fifty  cents. 

Probate  of  will  in  common  form  and  letters  testamentary,  one 
dollar. 

Qualifying  justice  of  the  peace,  to  be  paid  by  the  justice,  twenty- 
five  cents. 

Qualifying  members  of  the  board  of  commissioners,  to  be  paid 
by  the  commissioners,   twenty-five   cents. 

Recognizance,  each  party  where  no  bond  is  taken,  twenty-five  cents. 

827 


2773        SALAKIES  AND  FEES— 7.  County  Officers.        Ch.  66 

Recording  and  copying  papers,  per  copy-sheet,  ten  cents. 

Recording  names,  qualitication,  and  expiration  of  term  of  office 
of  justices  of  the  peace,  five  cents  for  each  name. 

Registering  trained  mirses,  including  certificate  of  registration, 
fifty  cents. 

Recording  certificates  of  incorporation  of  corporations,  three  dol- 
lars. 

Recording  names  of  jurors  as  required  by  law,  five  cents  for  each 
name. 

Resignation  of  guardian,  relinquishment  of  right  to  administer, 
or  to  qualify  as  executor,  receiving,  filing  and  noting  same,  twenty- 
five  cents. 

Seal  of  oifice,  Avhen  necessary,  twenty-five  cents. 

Subpcena,  each  name,  fifteen  cents. 

Summons,  in  civil  actions  or  special  proceedings,  including  all 
the  names  therein,  one  dollar,  and  for  every  copy  thereof,  twenty- 
five  cents. 

Transcript  of  judgment,  twenty-five  cents. 

Transcript  of  any  matter  of  record  or  papers  on  file,  j^er  copy- 
sheet,  ten  cents. 

Trial  of  any  cause,  or  stating  an  account,  as  referee,  pursuant  to 
order  of  the  judge,  such  allowance  as  the  judge  may  make. 

Witness  ticket,  including  jurat,  ten  cents. 

Five  per  cent,  commissions  shall  be  allowed  the  ck'rk  on  all  fines, 
penalties,  amercements  and  taxes  paid  the  clerk  by  virtue  of  his 
office ;  and  three  per  cent,  on  all  sums  of  money  not  exceeding  five 
hundred  dollars  placed  in  his  hands  by  virtue  of  his  office,  except 
on  judgments,  decrees,  and  executions;  and  iipon  the  excess  over 
five  hundred  dollars  of  such  sums,  one  per  cent. 

In  Robeson  county  the  board  of  commissioners  may  make  an 
allowance  to  the  clerk  of  the  superior  court  for  keeping  the  records 
of  the  court  and  transcribing  the  minutes,  to  be  paid  out  of  the  gen- 
eral county  fund. 

Code,  ss.  229,  1739,  .3109,  .3739;  1885,  c.  199;  1893.  e.  52,  s.  4;  1897,  c.  68; 
1899,  c.  17,  s.  2;  1899,  c.  247,  s.  3;  1899,  cc.  578,  2G1 :  1901,  ce.  121,  614,  s.  3; 
1903,  c.  359,  s.  6;  1905,  c.  360,  s.  3. 

Note.     Judge  fixes  in  certain  settlements,  see  s.  151. 

For  compensation  for  keeping  money  paid  into  court,  see  Administration,  s. 
151. 

For  fees  in  organization  of  corporations,  see  s.  1235. 

For  salary  in  Guilford  county,  see  1905,  c.  275. 
For  fees  in  Franklin  county,  see  1905,  c.  345. 
For  salary  in  Forsyth  county,  see  1905,  c.  436. 
For  fees  in  Mecklenburg  county,  see  1905,  e.  829,  s,  3. 

For  addilional  compensation  in  Beaufort  county,  see  1905,  p.  835. 

2774.  Clerks  must  keep  fee  bill  posted.  Every  clerk  sliall  keep 
posted  in  his  office  in  some  conspicuous  jilaco  tlie  foe  bilk  for  pnl)- 


2774        SALAEIES  AND  FEES— F.  County  Officers.        Ch.  66 

lie  inspection  and  reference,  under  a  penalty  of  one  hundred  dollars 
for  such  neglect,  to  be  paid  to  any  person  who  will  sue  for  the  same. 
Code,  s.  3740. 

2775.  Coroners.  Fees  of  coroners  shall  be  the  same  as  are  or 
may  be  allowed  .sheriflFs  in  similar  cases: 

For  holding  an  inquest  over  a  dead  body,  five  dollars ;  if  nece.s- 
sarily  engaged  more  than  one  day,  for  each  additional  day,  five 
dollars. 

For  burying  a  pauper  over  whom  an  inquest  has  been  held,  all 
necessary  and  actual  expenses,  to  be  approved  by  the  board  of  county 
commissioners,  and  paid  by  the  county. 

It  shall  be  the  duty  of  every  coroner,  where  he  or  any  juryman 
shall  deem  it  necessary  to  the  better  investigation  of  the  cause  or 
manner  of  death,  to  summon  a  physician  or  surgeon,  who  shall  be 
paid  for  his  attendance  and  services  ten  dollars,  and  such  further 
STim  as  the  commissioners  of  the  county  may  deem  reasonable.  But 
in  the  county  of  Buncombe,  when  the  coroner  is  a  physician  and 
STirgeon  he  shall,  at  the  request  of  one  or  more  of  the  jurymen,  make 
the  investigation  as  to  the  cause  and  manner  of  death,  and  shall 
receive  such  fee  or  compensation  as  the  board  of  commissioners  of 
Buncombe  county  shall  deem  just  and  reasonable,  in  addition  to 
the  fee  for  holding  the  inquest  over  said  dead  body. 

Code,  s.  374.3;   1903.  c.  781. 

2776.  Register  of  deeds.  The  register  of  deeds  shall  be  allowed, 
while  and  when  acting  as  clerk  to  the  board  of  commissioners,  such 
per  diem  as  such  board  may  respectively  allow,  not  exceeding  two 
dollars;  and  shall  be  allowed  the  following  fees  for  his  services  as 
register  of  deeds: 

For  registering  any  deed  or  other  writing  authorized  to  be  regis- 
tered by  them,  with  certificate  of  probate  or  acknowledgment  and 
private  examination  of  a  married  woman,  containing  not  more  than 
three  copy-sheets,  eighty  cents ;  and  for  every  additional  copy-sheet, 
ten  cents. 

Registering  chattel  mortgage,  statutory  form,  twenty  cents. 

Registering  short  form  of  lien  bond,  or  lien  bond  and  chattel  mort- 
gage combined,  fifty  cents  in  the  counties  of  Davidson,  Franklin, 
Halifax,  Lenoir,  Northampton,  Scotland  and  Union ;  twenty  cents 
in  the  counties  of  Anson,  Chatham,  Columbus,  Cleveland,  Iredell, 
Johnston,  and  Mecklenburg;  and  thirty  cents  in  the  counties  of 
Alamance,  Alleghany,  Ashe,  Beaufort,  Bladen,  Brunswick,  Bun- 
combe, Burke,  Carteret,  Caswell,  Catawba,  Chowan,  Craven,  Ciim- 
berland,  Davie,  Duplin,  Durham,  Edgecombe,  Forsyth,  Gaston, 
Gates,   Granville,  Harnett,  Hertford,  Jones,  Lincoln,  Martin,  Mc- 

829 


277G        SALAEIES  AND  FEES— F.   County  Officers.        C'li.   M 

Dowell,  Moore,  Kash,  New  Hanover,  Ouslow,  Pender,  Perquimans, 
Person,  Pitt,  Polk,  Eiehmond,  Robeson,  Rockingham,  Rowan,  Ruth- 
erford, Samjjson,  Vance,  Washington,  Watauga,  Wayne  and  AVilsou. 

For  comparing  and  certifying  a  copy  of  any  instrument  tiled  for 
registration,  when  the  copy  is  furnished  by  the  party  filing  the  in- 
strimient  for  registration  and  at  the  time  of  filing,  one  dollar. 

For  a  copy  of  any  record  or  any  paper  in  their  offices,  like  fees 
as  for  registering  the  same. 

For  issuing  each  notice  required  by  the  county  commissioners, 
including  supoenas  for  witnesses,  fifteen  cents.  This  shall  not  in- 
clude county  orders  issued  on  the  treasury. 

Recording  and  issuing  each  order  of  commissioners,  ten  cents. 
Where  a  standing  order  is  made  for  the  payment  of  money,  monthly 
or  otherwise,  there  shall  be  charged  but  one  fee  therefor. 

Making  out  original  tax  list,  two  cents  for  each  name  thereon ; 
for  each  name  on  each  copy  required  to  be  made,  two  cents. 

Issuing  marriage  license,  one  dollar. 

For  transcript  and  certificate  of  limited  partnership,  fifty  cents. 

For  recording  the  election  returns  from  the  various  voting  pre- 
cincts, ten  cents  per  copy-sheet,  to  be  paid  by  the  county. 

For  registering  conditional  sales  of  personal  property  in  Nash 
county  thirty-five  cents  on  the  first  three  hundred  words  and  ten 
cents  per  copy-sheet  on  the  excess  of  three  hundi'ed  words. 

Code,  ss.  710,  3109,  3751;  1887,  c.  283;  1891,  c.  324;  1897,  ec.  27,  68;  1899, 
c.  17,  s.  2;  1899,  c.  247,  s.  3;  1899,  cc.  261,  578,  723;  1901,  c.  294;  1903,  c.  792; 
1899,  c.  302;  1905,  ce.  226,  319,  392. 

Note.     For  fees  in  relation  to  strays,  see  Strays. 

For  registering  affidavits  of  sales  for  taxes,  see  s.  2904. 

For  short  form  of  lien  bond,  see  s.  2055. 

For  salary  of  register  of  deeds  of  Guilford  county,  see  1905,  c.  275. 

For  fees  of  register  of  deeds  of  Mecklenburg  county,  see  1905,  c.  829.  s.  2. 

2777.  Sheriffs.  Sherifi's  shall  be  allowed  the  following  fees  and 
expenses,  and  no  other,  namely : 

Executing  summons  or  any  other  writ  or  notice,  sixty  cents;  but 
the'  board  of  county  commissioners  may  fix  a  less  sum  than  sixty 
cents,  but  not  less  than  thirty  cents,  for  the  service  of  each  road  order. 

Arrest  of  a  defendant  in  a  civil  action  and  taking  bail  including 
attendance  to  justify,  and  all  services  connected  therewith,  one  dol- 
lar. 

Arrest  of  a  person  indicted,  including  all  services  connected  witli 
the  taking  and  justification  of  bail,  one  dollar. 

Imprisonment  of  any  person  in  a  civil  or  criminal  action,  thirty 
cents ;  and  release  from  prison,  thirty  cents. 

Executing  subpoena  on  a  witness,  thirty  cents. 

Conveying  a  prisoner  to  jail  to  another  county,  ten  cents  jier  mile. 


2777        SALAEIES  AND  FEES— 7.   County  Officers.        Cli.   66 

For  prisoner's  guard,  if  any  necessary,  and  approved  by  the  county 
commissioners,  going  and  returning,  per  mile  for  each,  five  cents. 

Expense  of  guard  and  all  other  expenses  of  conveying  prisoner 
to  jail,  or  from  one  jail  to  another  for  any  purjDOse,  or  to  any  place 
of  i^unishmeut,  or  to  appear  before  a  court  or  justice  of  the  peace 
in  another  county,  or  in  going  to  another  county  for  a  prisoner,  to 
be  taxed  in  the  bill  of  costs  and  allowed  by  the  board  of  commission- 
ers of  the  county  in  which  the  criminal  proceedings  were  instituted. 

For  allotment  of  widow's  year's  allowance,  one  dollar. 

In  claim  and  delivery  for  serving  the  original  papers  in  each  case, 
sixty  cents,  and  for  taking  the  property  claimed,  one  dollar,  with  the 
actual  cost  of  keeping  the  same  until  discharged  by  law,  to  be  paid 
on  the  affidavit  of  the  returning  officer. 

For  conveying  prisoners  to  the  penitentiary,  two  dollars  per  day 
and  actual  necessary  expenses;  also  one  dollar  a  day  and  actual 
necessary  expenses  for  each  guard,  not  to  exceed  one  guard  for  every 
three  prisoners,  as  the  sheriff  upon  affidavit  before  the  clerk  of  the 
superior  court  of  his  county  shall  swear  to  be  necessary  for  the  safe 
conveyance  of  the  convicts,  to  be  paid  by  the  state  treasurer  upon  the 
warrant  of  the  auditor,  out  of  any  money  in  the  treasury  not  other- 
wise appropriated.  The  sheriff  shall  file  with  the  auditor  the  affi- 
davit above  mentioned,  together  with  a  fully  itemized  account,  to  be 
sworn  to  before  the  auditor,  showing  the  number  of  days  requisite 
for  coming  and  returning  and  the  actual  expense  of  conveying  said 
convicts  and  the  guard  necessary  for  their  safe-keeping,  and  if  the 
auditor  approves  said  account,  he  shall  issue  his  warrant  on  the 
treasurer  for  the  amount  thereof. 

Providing  jDrisoners  in  county  jail  with  suitable  beds,  bed-clothing, 
other  clothing  and  fuel,  and  keeping  the  prison  and  grounds  cleanly, 
whatever  sum  shall  be  allowed  by  the  commissioners  of  the  county. 

Collecting  fine  and  costs  from  convict,  two  and  a  half  per  cent, 
on  the  amount  collected. 

Collecting  executions  for  money  in  civil  actions,  two  and  a  half 
per  cent,  on  the  amount  collected ;  and  the  like  commissions  for  all 
moneys  which  may  be  paid  to  the  plaintiff  by  the  defendant  while 
the  execution  is  in  the  hands  of  the  sheriff. 

Advertising  a  sale  of  property  imder  execution  at  each  public 
place  required,  fifteen  cents. 

Seizing  specific  property  under  order  of  a  court,  or  executing  any 
other  order  of  a  court  or  judge,  not  specially  provided  for,  to  be 
allowed  by  the  judge  or  court. 

Taking  any  bond  or  imdertaking,  including  furnishing  the  blanks, 
fifty  cents. 


831 


2777        SALARIES  AXD  FEES— T'.   County  Officers.        Cb.   66 

The  actual  expense  of  keeping  all  property  seized  \inder  process 
or  order  of  court,  to  be  allowed  by  the  court  on  the  affidavit  of  the 
officer  in  charge. 

A  capital  execution,  ten  dollars,  and  actual  expenses  of  burying 
the  body. 

Summoning  a  grand  or  petit  jury,  for  each  man  summoned,  thirty 
cents,  and  ten  cents  for  each  person  summoned  on  the  special  venire. 

For  serving  any  writ  or  other  process  with  the  aid  of  the  county, 
the  usual  fee  of  one  dollar,  and  the  expense  necessarily  incurred 
thereby,  to  be  adjudged  by  the  county  commissioners,  and  taxed 
as  other  costs. 

All  just  fees  paid  to  any  printer  for  any  ad\-ertisement  required 
by  law  to  be  printed. 

Bringing  up  a  prisoner  upon  habeas  corpus,  to  testify  or  answer 
to  any  court  or  before  any  judge,  one  dollar,  and  all  actual  and  neces- 
sary expenses  for  such  services,  and  ten  cents  ])er  mile  by  the  route 
most  usually  traveled,  and  all  expenses  for  any  guard  actually  em- 
ployed and  necessary. 

For  summoning  and  qualifying  appraisers,  and  for  performing 
all  duties  in  laying  off  homesteads  and  personal  property  exemptions, 
or  either,  two  dollars,  to  be  included  in  the  bill  of  costs. 

For  levying  an  attachment,  one  dollar. 

For  attendance  to  qualify  jurors  to  lay  off  dower,  or  commission- 
ers to  lay  off  year's  allowance,  one  dollar ;  and  for  attendance,  to 
qualify  commissioners  for  any  other  purpose,  seventy-five  cents. 

Executing  a  deed  for  land  or  any  interest  in  land  sold  under  exe- 
cution, one  dollar,  to  be  paid  by  the  piirchaser. 

Service  of  writ  of  ejectment,  one  dollar. 

For  every  execution,  either  in  civil  or  criminal  cases,  fifty  cents. 

Whenever  any  precept  or  process  shall  be  directed  to  the  sheriff 
of  any  adjoining  county,  to  be  served  out  of  his  county,  such  sheriff 
shall  have  for  such  service,  not  only  the  fees  allowed  by  law, 
but  a  further  compensation  of  five  cents  for  every  mile  of  travel 
going  to  and  returning  from  service  of  such  precept  or  process:  Pro- 
vided, that  whenever  any  execution  of  five  hundred  dollars  or  up- 
wards shall  be  directed  to  the  sheriff  of  an  adjoining  county,  under 
this  chapter,  such  sheriff  shall  not  be  allowed  mileage,  but  only  the 
commissions  to  which  he  shall  be  entitled. 

The  sheriff  of  Hyde  count}'  shall  be  allowed  the  sum  of  two  dul 
lars  for  serving  all  warrants  or  capiases  or  other  criminal  processes 
on  the  waters  of  Pamlico  sound  or  on  the  waters  of  any  bay  in  Hyde 
county.  A^^ienever  such  sheriff  is  compelled  to  go  by  boat  or  vessel 
a  distance  of  more  than  two  miles  from  any  shore  or  landing  in 
Hyde  county  to  serve  any  civil  process  upon  the  waters  of  Pam- 


2777        SALAEIES  AND  FEES— T\   County  Officers.        Ch.   66 

lico  sound  or  any  bay  in  Hyde  county,  such  sheriif,  in  addition 
to  the  fee  prescribed  by  law  for  serving  such  process,  may  add 
the  expense  of  hiring  such  boat  or  vessel,  which  cost  or  expense 
shall  be  taxed  by  the  clerk  of  the  superior  court  of  the  county  from 
which  such  process  issued  in  the  bill  of  costs  in  the  action  in  which 
such  process  issued.  Sheriffs  and  constables  of  Hyde  and  Carteret 
counties  shall  receive  three  dollars  for  every  process  executed  on 
board  of  any  boat  or  vessel  lyiug  in  the  waters  between  Ocracoke 
island,  Hyde  county,  and  Portsmouth  in  Carteret  county. 

Code,  ss.  931,  2135,  2089,  2090,  3752;   1885,  c.  262;   1891,  cc.  112,  143;   1903, 
c.  541;  1901,  c.  64;  R.  C,  c.  102,  s.  21;  R.  C,  c.  31.  s.  56;  1822,  c.  1132. 
Note.     For  serving  process  from  corpjoration  coiivmission,  see  s.  1071. 
For  serving  notice  of  garnishment  for  taxes,  twenty-five  cents,  see  s.  2880. 
For  sales  for  taxes,  see  s.  2883. 

For  making  memorandum  of  redemption  of  land  sold  for  taxes,  see  s.  2913. 
For  additional  salary  in  Wayne  county,  see  1905,  c.  374. 
For  salary  in  Guilford  county,  see  1905,  c.  275. 
For  fees  in  Franklin  county,  see  1905,  c.  345. 
For  fees  for  collecting  taxes  in  Rowan  county,  see  1905,  c.  376. 
For  compensation  in  Forsyth  county,  see  1905,  c.  436. 
For  payment  to  sheriff  for  holding  courts  in  Halifax  county,  see  1905.  e.  386. 

2778.  County  treasurer.  The  county  treasurer  shall  receive  as 
compensation  in  full  for  all  services  required  of  him  such  a  sum,  not 
exceeding  one-half  of  one  per  cent,  on  moneys  received  and  not  ex- 
ceeding two  and  a  half  per  cent,  on  moneys  disbursed  by  him  as 
the  board  of  commissioners  of  the  county  may  allow.  As  treasurer 
of  the  county  school  fund  he  shall  receive  such  sum  as  the  board  of 
education  may  allow  him,  not  exceeding  two  per  cent,  on  disburse- 
ments: Provided,  that  in  counties  where  his  compensation  can  not 
exceed  the  sum  of  two  hundred  and  fifty  dollars,  the  said  treasurer 
may  be  allowed  a  sum  not  exceeding  two  and  a  half  per  cent,  on  his 
receipts  and  his  disbursements:  Provided  further,  the  county  treas- 
urer of  Buncombe  county  shall  receive  as  a  compensation  in  full  for 
all  services  required  of  him  seventeen  hundred  and  fiftv  dollars 
per  annum,  paid  pro  rata  from  the  county  fimd  and  the  school 
fund ;  the  county  treasurer  of  Gaston  county  shall  receive  as  a 
compensation  in  full  for  all  services  required  of  him  a  yearly  sal- 
ary not  exceeding  twelve  hundred  dollars,  to  be  fixed  by  the  com- 
missioners of  said  county;  the  coimty  treasurer  of  Mecklenburg 
county  shall  receive  as  a  compensation  in  full  for  all  services 
required  of  him  a  yearly  salary  not  exceeding  twenty-seven  hun- 
dred and  fifty  dollars,  to  be  fixed  by  the  commissioners  of  said 
county.  Said  salaries  to  be  in  lieu  of  all  commissions  allowed  by 
law.  The  treasurer  of  Martin  coimty  shall  receive  as  his  commission 
two  and  one-half  per  cent,  on  all  money  received  by  him  as  general 
county  fund  and  two  and  one-half  per  cent,  on  all  money  disbursed 

Rev.  Vol.  1—49  833 


2778        SALARIES  AND  FEES— T.   County  Officers.        Ch.   66 

by  liim  as  general  county  fund.     Commissions  on  school  fund  shall 
remain  as  already  provided  for  by  law. 

Code,  s.  770;  1899,  c.  233:  1901,  ce.  285,  506;  1903,  e.  512;  1905,  c.  352. 

Note.     For  salary  in  Guilford  county,  see  1905,  o.  275. 

For  fees  in  Forsyth,  see  1905,  c.  436. 

2779.  Examining  committee  of  treasurer's  books.  The  board 

of   commissioners   shall   allow    to   the   committee   who   examine   the 
books  and  moneys  of  the  treasurer  the  same  pay  per  diem  that  is 
received  by  a  member  of  the  board,  not  to  exceed  pay  for  one  day's 
service  for  each  examination. 
Code,  s.  774;  1879,  c.  33. 

2780.  Standard-I<eeper.  Standard-keepers  shall  be  entitled  to 
receive  the  following  fees,  and  no  other,  namely:  For  examining 
and  adjusting  a  jDair  of  steelyards,  twenty-five  cents ;  every  wcigiit 
of  half  a  pound  and  upwards,  five  cents ;  every  set  of  weights  below 
half  a  pound,  including  one  piece  of  each  denomination,  five  cents ; 
for  a  yard  stick,  or  other  measure  of  cloth,  five  cents ;  every  bushel, 
half  bushel,  jjeck  or  other  measxire  used  in  measuring  grain,  meal  or 
salt,  ten  cents ;  each  measure  for  liquors  or  wines,  three  cents,  and 
for  extra  work  on  bushel  and  half-bushel  measures  a  sum  not  ex- 
ceeding twenty-five  cents  in  any  one  case ;  and  for  every  surveyor's 
chain,  fifty  cents. 

Code,  s.  3753;  1889,  e.  406;  R.  C,  c.  102,  s.  37;  1870-1,  c.  139,  s.  3;  1874-5, 
c.   110. 

Note.     For  compensation  of  state  standard-keeper,  see  s.  2759. 

2781.  Finance  committee.  The  members  of  the  finance  com- 
mittee shall  each  receive  such  compensation  for  the  performance  of 
his  duties  as  the  board  of  commissioners  may  allow,  not  e-xceeding 
three  dollars  per  day;  but  they  shall  not  be  paid  for  more  than  ten 
days  in  any  one  year. 

Code,  s.  763;  1871-2,  c.  71,  s.  5;  1873-4,  c.  107. 

2782.  County  superintendent  of  public  instruction.  The  salary 

of  the  county  su})crintendent  of  schools  sliall  hv  fixed  by  the  county 
board  of  education.  It  shall  not  be  less  than  three  dollars  per  day 
while  engaged  in  the  service  of  the  public  .schools.  The  county  board 
of  education  may  fix  an  annv^al  salary  not  to  exceed  four  per  cent  of 
the  disbursements  for  schools  imder  his  supervision.  The  county 
board  of  education  of  any  county  whose  total  school  fund  exceeds 
fifteen  thousand  dollars  may  employ  a  county  superintendent  for 
all  of  his  time  at  such  salary  as  may  be  fixed  by  said  biiard :  Pro- 
vided, the  county  superintendent  of  Iredell  county  shall  not  receive 
over  six  hundred  dollars  per  annum. 
1901,  c.  4,  s.  44;   1903,  c.  435,  s.  19. 


2783        SALARIES  AND  FEES— 7.  County  Officers.        Ch.  66 

2783.  County  board  of  pensions.  Each  member  of  the  county 
board  of  jDensions  shall  be  entitled  to  two  dollars  a  day,  not  exceed- 
ing three  days  in  any  year,  when  attending  the  annual  meeting  of 
said  board,  the  said  compensation  to  be  paid  by  the  county  treasurer 
on  the  order  of  the  board  of  county  commissioners. 

1903,  c.  273,  s.  19. 

2784.  Election  officers.  The  registrar  shall  receive  three  cents 
for  each  name  registered  in  the  new  registration  when  ordered,  and 
thereafter  in  the  revision  of  the  registration  book,  he  shall  receive  one 
cent  for  each  name  copied  from  the  original  registration  book.  Each 
chairman  of  the  county  board  of  elections  shall  be  allowed  one  dollar 
per  day  for  the  time  actually  employed,  and  five  cents  per  mile  for 
distance  traveled,  for  making  the  returns  for  senators,  and  each 
sheriff  shall  receive  thirty  cents  for  each  notice  he  is  required  to 
serve  under  the  law  providing  for  holding  elections.  The  com- 
pensation allowed  officers  shall  be  paid  by  the  county  treasurer 
after  being  audited  by  the  board  of  county  commissioners.  Clerks 
and  registers  of  deeds  shall  also  be  allowed  the  usual  registra- 
tion fees  for  recording  the  election  returns,  to  be  paid  by  the 
coimty.  The  board  of  state  canvassers  may  employ  two  clerks 
at  a  compensation  of  four  dollars  each  per  day,  during  the  ses- 
sion of  the  board  of  state  canvassers.  The  members  of  the  county 
board  of  elections  shall  each  be  allowed  one  dollar  per  day  for 
each  day  they  may  be  actually  employed  in  the  performance  of  their 
duties.  The  registrars  and  judges  of  election  shall  be  entitled  to 
such  compensation  as  may  be  fixed  by  the  board  of  commissioners 
of  their  county,  not  to  exceed  one  dollar  each  for  holding  the  elec- 
tion. The  election  constables  or  bailiffs  shall  be  entitled  to  one  dol- 
lar per  day  each;  and  the  registrar  or  judge  of  election,  who  shall  act 
as  returning  officer,  shall  be  allowed  one  dollar,  payable  out  of  the 
county  treasury:  Provided,  that  the  registrars  shall  receive,  in  addi- 
tion to  the  compensation  herein  allowed  for  each  name  registered, 
the  sum  of  one  dollar  per  day  for  each  Saturday  during  the  period 
of  registration,  and  on  which  they  attend  at  the  several  polling 
places  for  the  purpose  of  registering  voters  or  receiving  and  hearing 
challenges :  Provided  further,  that  in  addition  to  the  compensation 
herein  allowed  the  several  election  officers  it  shall  be  lawful  for  the 
county  commissioners  to  pay  to  the  several  members  of  the  county 
board  of  elections  and  also  to  the  several  registrars  such  additional 
compensation  as  may  be  by  them  considered  just  and  fair. 

1901,  c.  89,  s.  62;  1905,  c.  434. 

2785.  County  commissioners.  Except  where  otherwise  provided 
by  law,  each  county  commissioner  shall  receive  for  his  services  and 

835 


2785        SALARIES  AXD  FEES— F.  County  Officers.        Ch.  C(! 

expenses  in  attending  the  meetings  of  the  board  not  exceeding  two 
dollars  per  day,  as  a  majority  of  the  board  may  fix  npon,  and  they 
may  be  allowed  mileage  to  and  from  their  respective  places  of  meet- 
ing, not  to  exceed  five  cents  per  mile.  In  Currituck  and  Wake,  a  sum 
not  to  exceed  three  dollars  per  day  and  like  mileage.  In  Craven  such 
sum  for  extra  services  as  a  majority  may  determine.  The  commis- 
sioners acting  separately  from  the  chairman  niay,  on  the  first  Monday 
in  December  of  each  term,  fix  the  compensation  of  the  chairman  in 
such  sum  as  they. think  proper,  in  the  following  counties,  and  subject 
to  the  following  limitations:  In  Bertie,  Craven,  Durham,  Hali- 
fax, Iredell,  ilecklenburg,  ISTew  Hanover,  Wake  and  Warren,  in  their 
discretion;  in  Edgecombe,  not  to  exceed  three  hundred  dollars  per 
annum ;  in  Buncombe,  not  to  exceed  three  dollars  per  day ;  in  Vance, 
not  to  exceed  twenty-five  dollars  per  month ;  in  Wilson,  not  to  exceed 
one  thousand  dollars  per  annum.  In  Wake  the  board  may  sit  for 
four  consecutive  days  each  month,  beginning  on  the  first  Monday  of 
each  month.  The  board  of  commissioners  of  Wayne  county  are 
hereby  authorized  to  pay  the  chairman  of  said  board  for  his  services 
as  chairman  a  sum  the  same  as  that  paid  a  member  of  the  board  of 
county  commissioners  while  engaged  in  other  county  work,  the  same 
to  be  approved  by  the  board  of  county  commissioners.  In  Nash  county 
the  chairman  of  said  board  shall  be  paid  at  the  rate  of  two  hundred 
dollars  each  year,  and  each  of  the  other  commissioners  shall  be  paid 
the  sum  of  one  hundred  dollars  per  year  and  mileage  heretofore  fixed 
by  law.  The  chairman  of  the  board  of  county  commissioners  of  Meck- 
lenburg county  shall  receive  for  his  services  a  salary  in  lieu  of  all 
other  compensation  now  provided  by  law,  the  sum  to  be  fixed  by 
the  board  and  not  to  exceed  nine  hundred  dollars.  The  commis- 
sioners of  Robeson  county  shall  receive  as  compensation  for  their 
services  in  performing  the  duties  of  their  office  the  sum  of  three 
dollars  per  day  and  ten  cents  per  mile,  both  ways,  for  traveling 
expenses.  In  Washington  county  commissioners  shall  receive  no 
compensation  for  attendance  on  call  meetings  of  the  board.  The 
chairman  of  the  board  of  county  commissioners  of  Northampton 
county  shall  be  paid  for  his  services  the  sum  of  one  hundred  dol- 
lars annually  and  mileage  of  five  cents  per  mile  each  way  for  each 
day  of  his  attendance  on  said  board ;  each  member  of  said  board  shall 
be  paid  the  sum  of  four  dollars  for  each  day  of  his  service  on  said 
board  and  like  mileage. 

Code,  s.  709;  1889,  c.  560;  1891,  cc.  41,  56,  U4,  183,  474;  1899,  c.  297;  1901, 
ce.  49,  429,  708;  1903,  cc.  227,  648,  817;  1905,  cc.  123,  148.  228,  317,  .384.  829. 

2786.  County  board  of  education.  The  members  of  the  county 
board  of  education  shall  receive  two  dollars  per  diem  and  five  cents 
a  mile  to  and  from  their  respective  places  of  meeting. 

1901,  c.  4,  s.  27. 

836 


2787     SALAEIES  AND  FEES— 77.  Township  Officers.     Ch.   66 

VI.     Township  Officers. 

2787.  Constable.  Constables  shall  be  allowed  the  same  fees  as 
sheriffs. 

Code,  s.  3742;    188:!,  c.   108. 

2788.  Justices  of  the  peace.  Justices  shall  receive  no  fees  what^ 
ever,  except  the  following: 

For  attachment,  twenty  cents. 

Transcript  of  judgment,  ten  cents. 

Summons,  twenty  cents ;  if  more  than  one  defendant  in  same 
case,  for  each  additional,  ten  cents. 

Subpoena,  for  each  witness,  ten  cents. 

Trial  of  an  issue  and  judgment,  forty  cents. 

Taking  an  affidavit,  bond  or  undertaking,  or  for  an  order  of  pub- 
lication, or  an  order  to  seize  property,  twenty-five  cents. 

For  jury  trial  and  entering  verdict,  forty  cents. 

Execution,   twenty  cents. 

Renewal  of  execution,   five   cents. 

Return  to  an  appeal,  thirty  cents. 

Order  of  arrest  in  civil  action,  twenty  cents. 

Warrant  for  arrest  in  criminal  cases,  or  in  bastardy,  including 
the  affidavit  of  complainant,  thirty  cents. 

Warrant  of  commitment,  twenty  cents. 

Taking  depositions  on  order  or  commission,  per  co'pj  sheet,  ten 
cents. 

Garnishment  for  taxes,  twenty-five  cents.     (See  s.  2880). 

^Making  necessary  certificate  and  return  to  same,  thirty-five  cents. 

For  examination  of  woman  in  case  of  bastardy,  twenty-five  cents. 

For  hearing  petition  for  widow's  year's  allowance,  and  issuing 
notice  to  commissioners,  fifty  cents. 

For  filing  and  docketing  laborer's  lien,  fifty  cents. 

Probate  of  a  deed  or  other  writing  proved  by  a  witness,  including 
the  certificate,  twenty-five  cents;  probate  of  a  deed  or  other  writing 
executed  by  a  married  woman  for  her  acknowledginent  and  pri- 
vate examination,  with  the  certificate  thereof,  twenty-five  cents ;  pro- 
bate of  a  deed  or  other  writing  acknowledged  by  the  signers  or  mak- 
ers, including  all  except  niarried  women  who  acknowledge  at  the  same 
time,  with  the  certificate  thereof,  twenty-five  cents;  probate  of  a 
chattel  mortgage,  including  the  certificate,  ten  cents. 

For  issuing  all  necessary  papers  and  copies  thereof  and  for  the 
trial  of  an  action  for  claim  and  delivery,  where  there  is  one  defend- 
ant, the  sum  of  one  dollar  and  fifty  cents,  and  fifty  cents  for  each 
additional  defendant,  and  ten  cents  for  each  subpoena  issued  in  said 
cause,  and  twenty-five  cents  for  taking  the  replevy  bond  ^\hen  one 

837 


2788     SAL^VKIES  AA'D  FEES— TV.  Township  Officers.     Cli.   66 

is  given :  Provided,  that  where  the  trial  of  such  cause  shall  have 
been  removed  from  before  the  justice  of  the  peace  issuing  the  said 
papers,  the  justice  of  the  peace  sitting  in  the  trial  of  such  cause 
shall  receive  fifty  cents  of  the  above  costs  for  such  trial  and  judg- 
ment. 

For  widow's  year's  allowance,  one  dollar. 
Code,  ss.  21.35,  3748;  1885,  c.  86;  1903,  c.  225;  1870-1,  e.  130,  s.  9;  1883,  e.  308. 

2789.  Justices  must  itemize  bills  of  cost.  Every  justice  of  the 
peace  shall,  upon  demand  made,  give  to  any  party  to  an  action 
before  him,  an  itemized  statement  of  the  costs  of  such  action.  K<i 
person  shall  be  compelled  to  pay  any  costs  in  any  trial  before  a  jus- 
tice of  the  peace  until  an  itemized  statement  of  the  costs  has  been 
made  out  and  given  to  the  party  charged. 

1887,  c.  297. 

Note.  For  failure  to  give  an  itemized  statement  of  costs  on  demand,  see 
s.  3588. 

See  also,  s.  1257. 

VII.     Commissioners. 

2790.  Assessing  damages  for  right  of  way.  The  commissioners 

appointed,  under  any  order  of  court,  to  condemn  any  land,  for  any 
railroad  or  other  company  or  corjDoration  in  proceedings  to  con- 
demn land  under  and  by  virtue  of  any  right  of  eminent  domain, 
shall  each  receive  three  dollars  per  day  for  each  day  they  are 
engaged  in  the  performance  of  their  duties. 
Code,  s.  1946. 

2791.  In  partition.  The  commissioners  appointed  by  any  court 
to  make  partition  of  any  land,  timber  or  real  estate  of  any  kind, 
or  any  personal  property,  shall  each  receive  the  sum  of  one  dollar 
per  diem  for  his  services. 

Code,  ss.  1901,  1922. 

2792.  In  sale  for  partition.  In  sales  of  real  estate  or  personalty 
for  partition  the  allowance  to  the  commissioner  for  making  such 
sale,  and  for  all  services  therewith,  and  for  making  title  shall  be  as 
follows:  For  sales  of  five  hundred  dollars  or  less,  not  more  than  ten 
dollars ;  for  sales  of  over  five  hundred  dollars,  two  per  centum,  up 
to  a  compensation  of  forty  dollars,  and  when  the  allowance  shall 
amount  to  forty  dollars,  any  additional  compensation  shall  not  ex- 
ceed the  rate  of  one  peroentum  on  the  excess  over  two  thousand 
dollars. 

Code,  s.  1910. 

2793.  In  partition,  land  in  another  state.   The  commissioners 

appointed  to  divide  lands  lying  in  tliis  and  another  state  sliall  be 

838 


2793       SALARIES  AND  FEES— 77/.   Commissioners.       Ch.  66 

entitled  to  three  dollars  per  day  for  their  services ;  which,  with  all 
fees,  expenses  and  costs,  shall  be  paid  as  the  court  may  direct. 

Code,  s.  1016;  18G8-9,  c.  122,  s.  26. 

2794.  Assessing  damages  for  mills.  Every  commissioner  ap- 
pointed in  any  proceeding  to  assess  the  damages  arising  from  the 
location  of  any  mill,  as  provided  for  in  the  chapter  on  Mills,  shall 
be  entitled  to  receive  two  dollars  per  day. 

Code,  s.  1863. 

2795.  Assessing  damages  for  drainage.  Each  commissioner  ap- 
pointed in  proceedings  under  the  chajjter  on  Drainage  shall  be  enti- 
tled to  receive  one  dollar  and  fifty  cents  per  day. 

2796.  Of  affidavits.  Commissioners  of  affidavits,  and  those  who 
are  authorized  by  law  to  act  as  such,  shall  receive  the  following  fees, 
and  no  other,  namely:  For  an  affidavit  taken  and  certified,  forty 
cents ;  affixing  his  official  seal,  twenty-five  cents. 

Code,  s.  3741. 

2797.  Receiver  selling  as.  Receivers  of  property  appointed  by 
any  order  of  court,  in  any  proceedings  or  action,  shall  be  allowed 
such  commissions  as  may  be  fixed  by  the  court  appointing  them,  not 
exceeding  five  per  cent,  on  the  amount  received  and  disbursed  by 
them. 

1901,  c.  2,  s.  88;  Code,  s.  379,  subsee.  4. 


Note.  For  compensation  of  surviving  partner  settling  partnership  estate,  see 
s.  2546. 

YIII.     Miscellaneous. 

2798.  Jurors.  Jurors  shall  receive  such  sum  as  the  county  com- 
missioners may  fix,  not  exceeding  one  dollar  and  fifty  cents  for  each 
day's  attendance  at  court  or  inquest,  and  mileage  at  the  rate  of  five 
cents  per  mile;  they  shall  also  be  allowed  such  ferriage  and  tolls  as 
they  may  have  necessarily  incurred. 

In  Anson,  Lenoir,  New  Hanover,  Pender,  Riitherford  and  Union 
counties  the  pay  of  jurors  shall  be  one  dollar  and  fifty  cents  per  day 
and  mileage. 

In  Greene  county  all  regular  and  tales  jurors  shall  receive  two 
dollars  per  day. 

In  Gates  and  Forsyth  coimties,  not  less  than  one  dollar  and  fifty 
cents  and  not  more  than  two  dollars  as  fixed  by  the  county  commis- 
sioners, and  mileage. 

The  same  pay  shall  be  allowed  to  special  jurors  as  talesmen,  who 
shall  be   summoned   to   serve   and   do   serve,   but  they   shall   not  be 

839 


2798       SALARIES  AXD  FEES— T///.  Miscellaneous.       Ch.   GO 

allowed  any  mileage  or  ferriage.  In  Anson,  Pender,  Rutherford 
and  Union  counties  the  pay  of  talesmen  shall  be  one  dollar  a  day 
witliout  mileage  or  ferriage. 

In  Currituck  county,  not  exceeding  one  dollar  and  tifty  cents,  and 
no  mileage. 

All  who  are  summoned  to  appear  as  special  veniremen,  who  do 
actually  attend  and  who  are  not  drawn  as  jurors  shall  be  entitled  td 
prove  and  receive  one  day's  jjay  of  one  dollar  each  without  mile- 
age: This  paragraph  shall  not  apply  to  Rockingham,  Durham, 
Franklin,  Duplin,  Ashe,  Alleghany,  Watauga,  Cleveland,  Macon, 
Clay,  Cherokee,  Graham,  Richmond,  Columbus,  Alexander,  Sam])- 
son,  Davidson,  Pamlico,  Davie,  Stokes,  Union,  Iredell,  McDowell, 
Caldwell,  Haywood,  Pasquotank,  Yadkin,  Onslow,  Currituck,  Yan- 
cey, Tyrrell,  Jones,  Wayne,  Pender,  Madison,  Alamance,  Stanly. 
Cumberland,  Catawba,  Gaston,  Hyde,  Anson,  Cabarrus.  Lenoir,  Lin- 
coln, Dare,  Mitchell,  Rutherford,  Jackson,  Wilson  and  Xash.  In 
Forsyth,  Madison  and  Wake  counties  special  veniremen  shall  alsd 
receive  mileage  and  tolls  or  ferriage.  In  Greene  county  they  shall 
receive  seventy-five  cents  per  day. 

The  regailar  jurors  for  Pitt,  Harnett,  tialifax  and  Northampton 
counties  and  such  special  veniremen  and  tales  jurors  of  said  counties 
as  shall  be  taken  in  the  trial  of  capital  cases  shall  be  paid  the  sum 
of  two  dollars  per  day  and  the  mileage  provided  by  law. 

The  commissioners  of  the  counties  of  Currituck  and  Martin  are 
authorized,  in  their  discretion,  to  pay  all  regular  jurors  summoned 
by  their  order  two  dollars  per  day  and  mileage,  as  now  provided  by 
the  law. 

All  grand  and  petit  and  tales  jurors  summoned  to  attend  and 
attending  the  superior  courts  of  Chowan  county  shall  receive  per  day 
what  shall  be  allowed  by  the  commissioners  of  Chowan  county,  not 
less  than  one  dollar  and  fifty  cents  per  day  nor  more  than  two  dollars 
per  day,  and  five  cents  per  mile  for  travel  going  to  and  returning 
from  court,  to  be  fixed  by  said  commissioners. 

Code,  s.  3747;  1885,  c.  344;  1887,  c.  188;  1891,  c.  187;  1895,  c.  254;  1897.  c. 
280;  inoi,  c.  320;  1903,  c.  152:  1903,  c.  341;  R.  C,  c.  28,  s.  15:  1870-1,  c.  139, 
s.  6;  1881,  c.  .53,  s.  1;  1905,  cc.  1,  40,  83,  IIG,  134.  171,  21.5,  218,  255,  301. 

Note.     For  jurors  at  inquests,  see  s.  1053. 

For  jurors  in  ascertaining  value  of  dividing  fence,  see  s.  1660. 

2799.  Jailers.  Jailors  shall  receive,  for  furnishing  prisoner  with 
fuel,  (lue  pound  of  wholesome  bread,  one  pound  of  good  roasted  or 
Ijoilcd  ilosli,  and  a  sutficient  quantity  of  water,  with  every  necessary 
attendance,  a  sum  not  exceeding  twenty-five  cents  per  day,  unless  the 
board  of  conmiissioners  of  the  coimty  shall  deem  it  expedient  to 
increase  the  fees,  which  it  may  do  provided  such  increase  shall  not 
exceed  fifty  jicr  cent,  on  the  above  sum.     U)Ut  whatever  sum  may  lie 

840 


2799       SALARIES  AND  FEES— IV//.  Miscellaneous.       Ch.   66 

fixed  on  by  the  commissioners  sliall  be  recorded,  and  shall  not  be 
altered  within  one  year  thereafter. 

Code,  s.  3746;  K.  C,  c.  102,  s.  38;  1879,  c.  87. 

2800.  Notaries.  Notaries  public  and  other  persons  acting  as  such 
shall  be  allowed  the  sum  of  fifty  cents  for  protesting  for  nonaccept- 
ance  or  for  nonpayment,  or  for  both  when  done  at  the  same  time,  any 
order,  draft,  note,  bond  or  bill  or  any  other  thing  necessary  to  be 
protested,  and  the  simi  of  ten  cents  for  each  notice  sent  in  connec- 
tion therewith.  For  other  necessary  services,  where  no  fee  is  fixed, 
they  shall  be  allowed  twenty  cents  for  every  ninety  words.  Cases 
of  protest  concerning  vessels  or  other  cargoes  shall  not  be  affected 
by  this  section. 

Code,  s.  3749;  1889,  c.  446;  1895,  c.  296;  1903,  c.  734. 

2801.  Entry-taker.  Entry-takers  shall  receive  the  following  fees, 
and  no  other,  namely:  For  an  entry,  including  all  services,  forty 
cents;  issuing  each  duplicate  warrant,  when  thereto  required, 
twenty-five  cents;  for  posting  and  advertising,  the  applicant  shall 
pay  the  entry-taker  one  dollar,  and  the  costs  of  the  newspaper  adver- 
tisement. 

'     Code,  ss.  2765,  3744;  K.  C,  c.  102,  s.  32;  1870-1,  e.  139,  s.  3;  1903,  c.  272,  s.  3. 

2802.  Surveyors  and  chain-carriers.   Surveyors  appointed  by 

courts  to  survey  any  lands,  the  boundaries  of  which  may  come  in 
question  in  any  suit  or  proceeding  pending  therein,  or  called  upon 
by  the  commissioners  to  assist  in  surveying  and  dividing  the  lands 
of  intestates  or  others,  held  in  common,  shall  receive  the  following 
fees,  and  no  other,  namely:  For  every  survey  on  an  entry  containing 
three  hundred  acres  or  less,  one  dollar  and  sixty  cents,  and  for  everj' 
hundred  more  than  that  quantity,  forty  cents ;  for  sitrveying  lands 
in  dispute,  by  order  of  court,  traveling  to  and  from  the  place,  and 
performing  the  duty,  two  dollars  per  day,  or  such  gi-eater  sum  as 
the  court  may  allow;  for  assisting  in  surveying  and  dividing  the 
lands  of  intestates,  or  others,  held  in  common,  when  called  upon 
by  the  commissioners  appointed  to  make  partition,  or  in  laying  off 
dower ;  traveling  to  and  from  the  place,  and  performing  the  duty, 
two  dollars  per  day.  For  assisting  in  surveying  and  allotting  the 
homestead  exemption  of  any  person  when  summoned  to  do  so  by 
the  sheriff  or  other  lawful  officer,  for  traveling  to  and  from  the 
place  and  performing  the  duty,  two  dollars  per  day,  which  shall  be 
taxed  in  the  bill  of  costs.  In  all  surveys  made  by  order  of  the  court, 
the  chain-carriers  shall  be  allowed  such  compensation  as  the  court 
may  determine,  not  exceeding  one  dollar  each  per  day;  and  in  mat- 
ters of  disputed  boimdary,  which  may  come  in  question,  in  any  suit, 
the  court  may  make  to  the  surveyor  s\ich  allowance  for  plots  as  it 

841 


2S02       SALAUIES  A^B  FEEbi— VIII.  Miscellaneous.       Cb.  6G 

may  deem  reasonable,  which,  with  the  allowance  to  chain-carriers, 
shall  be  taxed  as  costs.  The  fees  of  the  county  surveN'or  of  the  coun- 
ties of  Eowau  and  Wayne  shall  be  three  dollars  per  day  for  all  serv- 
ices done  by  theui  in  their  ofHcial  capacitj'. 

Code,  s.  3754;  1893,  e.  58,  s.  2;  1905.  ec.  182,  2G3. 
Note.     For  fees  for  registering  surveys,  see  s.  172-t. 

2803.  Witnesses.  The  fees  of  witnesses,  whether  attending  at  a 
term  of  cotirt  or  before  the  clerk,  or  a  referee,  or  commissioner,  or 
arbitrator,  shall  be  one  dollar  per  day.  They  shall  also  receive  mile- 
age, to  be  fixed  by  the  county  commissioners  of  their  respective  coun- 
ties, at  a  rate  not  to  exceed  live  cents  per  mile  for  every  mile  neces- 
sarily traveled  from  their  respective  homes  in  going  to  and  return- 
ing from  the  place  of  examination  by  the  ordinary  route,  and  fer- 
riage and  toll  paid  in  going  and  returning.  If  attending  out  of 
their  counties,  they  shall  receive  one  dollar  per  day  and  five  cents 
i:)er  mile  going  and  returning  by  the  ordinary  route,  and  toll  and 
ferriage  expenses.  Provided,  that  witnesses  before  courts  of  jus- 
tices of  the  peace  shall  receive  fifty  cents  per  day  in  civil  cases, 
and  in  criminal  actions  of  which  justices  of  the  peace  have  final 
jurisdiction,  witnesses  attending  the  courts  of  justices  of  the  peace,, 
\inder  subpoena,  shall  receive  fifty  cents  per  day,  and  in  hearings 
before  coroners  witnesses  shall  receive  fifty  cents  per  day  and  no 
mileage ;  but  the  party  cast  shall  not  pay  for  moi-e  than  two  wit- 
nesses subi^cpnaed,  to  prove  any  one  material  fact,  and  no  prosecTi- 
tor  or  complainant  shall  pay  any  costs,  unless  the  justice  shall  find 
that  the  prosecution  was  malicious  and  frivolous:  Provided  further, 
that  experts,  when  compelled  to  attend  and  testify,  shall  be  allowed 
such  compensation  and  mileage  as  the  court  may  in  its  discretion 
order.  Witnesses  attending  before  the  corporation  commission  shall 
receive  two  dollars  per  day  and  five  cents  per  mile  traveled  by  the 
nearest  j^racticable  I'oute.  All  witnesses  subpoenaed  to  attend  courts 
of  justices  of  the  peace  in  Franklin  county  in  the  trial  of  civil  or 
criminal  cases  in  any  township  other  than  their  resident  townships 
shall  be  paid  the  same  per  diem  and  mileage  that  is  now  paid  wit- 
nesses attending  the  superior  courts:  Provided  further,  that  prac- 
ticing physicians  of  medicine  when  comjielled  to  attend  and  testify 
in  criminal  actions  in  Iredell  cotmty  shall  be  allowed  five  dollars  ]K'r 
diem  for  all  such  attendance. 

Code,  ss.  2800,  3756;   1891,  c.  147;  1905,  cc.  279,  522. 

Note.     For    mileage   of    witnesses    before    legislative    committee,    see    General 
Assembly. 

For  where  county  pays  half  fees,  see  s.  1283. 

2804.  Fees,  by  whom  paid;  when  in  advance.  The  several  offi- 
cers named  in  this  chapter  shall  receive  the  fees  hereinbefore  pre- 


2804       SALAEIES  AND  FEES— F///.  Miscellaneous.       Cli.   66 

scribed  for  them  resiiectively,  from  the  persons  for  whom,  or  at 
whose  instance,  the  service  shall  be  performed,  except  persons  suing 
as  paTipers ;  and  no  officer  shall  be  comijelled  to  perform  any  serv- 
ice, unless  his  fee  be  paid  or  tendered,  except  in  criminal  actions. 
The  said  officers  shall  receive  no  extra  allowance  or  other  compensa- 
tion whatever,  unless  the  same  shall  be  expressly  authorized  by  stat- 
ute. In  case  the  service  shall  be  ordered  by  any  proper  officer  of 
the  state,  or  of  a  county,  for  the  benefit  of  the  state  or  county,  the 
fees  need  not  be  paid  in  advance;  but  if  for  the  state,  shall  be  paid 
by  the  state,  as  other  claims  against  it  are ;  if  for  a  county,  by  the 
board  of  commissioners,  out  of  the  county  funds.  The  fees  in 
criminal  cases  are  not  demandable  in  advance. 
Code,  ss.  3758,  1173. 

2805.  Copy-sheet,  what  constitutes.  A  copy-sheet  shall  consist 
of  one  hundred  words,  and  in  reckoning  the  number  of  words  in  a 
copy-sheet,  every  date,  or  amount  of  money,  expressed  in  figures,  as 
"1855,"  "$250.90,"  shall  be  estimated  and  charged  as  one  word. 

Code,  s.  3757;  R.  C,  c.  102,  s.  42;  1868-9,  c.  279,  s.  556. 

2806.  Keeper  of  Capitol.  The  salary  of  the  keeper  of  the  capi- 
tol,  or  superintendent  of  public  buildings  and  grounds,  shall  be 
eight  hundred  dollars  per  annum,  which  shall  include  his  compen- 
sation as  keeper  of  the  arsenal. 

Code,  ss.  2302,  2303. 

2807.  Board  of  public  charities.    The  members  of  the  board  of 

public  charities  shall  receive  no  compensation  for  their  services  except 
their  actual  traveling  expenses  while  attending  the  sessions  of  the 
board,  not  oftener  than  four  times  a  year,  and  not  to  exceed  four 
days  at  each  session.  The  printing  of  all  necessary  blanks  for  use  of 
the  board  shall  be  paid  for  as  other  state  printing. 


Note.     For  fees  of  harbor-masters,  see  s.  4960. 
For  fees  of  pilots,  see  ss.  4962,  4969,  4972,  4978-4980. 
For  publishing  notice  sale  of  land  for  taxes,  see  s.  2890. 
Fcr  fee  for  analysis  of  water  supplies,  see  s.  3055. 


2808  SHERIFF—/.  Offlce  of.  Ch.  61 


CHAPTEE  67. 
SHERIFF. 


Sections. 

I. 

Office  of, 

2808—2811 

II. 

Bond. 

2812—2816 

III. 

Duties  of, 

I. 

Office  of. 

2817—2829 

2808.  Election  for.  In  each  county  a  sheriff  shall  be  elected  by 
the  qualified  voters  thereof,  as  is  prescribed  for  members  of  the 
general  assembly,  and  shall  hold  his  office  for  two  years. 

Const.,  Art.  IV,  s.  24. 

2809.  Ineligibility  for.  Xo  person  shall  be  eligible  to  the  office 
.of  sheriff  who  is  not  of  the  age  of  twenty-one  years,  and  has  not 

resided  in  the  county  in  which  he  is  chosen  for  one  year  immedi- 
ately preceding  his  election,  or  who  is  a  member  of  the  general  assem- 
bly, or  practicing  attorney,  or  who  theretofore  has  been  sheriff  of 
such  county,  and  hath  failed  to  settle  with  and  fully  pay  up  to 
every  officer  the  taxes  which  were  due  from  him. 

Code,  ss.  2067,  2068,  2069;  R.  C,  c.  105,  ss.  5,  6,  7 ;  1777,  e.  118,  ss.  2,  4;  1806, 
c.  699,  s.  2;  1829,  c.  5,  s.  6;  1830,  c.  25,  ss.  2,  3. 

2810.  Resignation  of.  Every  sheriff  may  vacate  his  office  by 
resigning  the  same  to  the  board  of  county  commissioners  of  his 
county;  and  thereuf)on  the  board  may  proceed  to  elect  another 
sheriff. 

Code,  s.  2077;  R.  C,  c.  105,  s.  15;  1777,  c.  118,  s.  1;   1808,  c.  752. 

2811.  Vacancy  in,  how  filled;  guilty  of  a  misdemeanor.  If  any 

sheriff  shall  be  convicted  of  a  misdemeanor  in  office,  the  court  may 
at  its  discretion,  as  a  part  of  his  puni.shment,  remove  him  from 
office ;  and  on  any  vacancy  in  the  office,  created  by  this  or  any  other 
means,  the  coroner  of  the  county  .shall  execute  all  ]U'ocess  directed 
to  the  sheriff,  until  the  first  meeting  of  the  county  commissioners 
next  succeeding  such  vacancy,  when  the  board  shall  elect  a  sheritf 
to  supply  the  vacancy  for  the  residue  of  the  term,  who  shall  pos- 
sess the  same  qualifications,  enter  into  the  same  bonds,  and  be  sub- 
ject to  removal,  as  the  sheriff  regularly  elected;  and  .should  the 
board  fail  to  fill  such  vacancy,  the  coroner  shall  continue  to  di.s- 
charge  the  duties  of  sheriff  until  it  shall' be  filled. 

Code,  s.  2071;  R.  C,  c.  105,  s.  11  :  1829,  c.  5,  s.  8. 

Note.     See  also  s.  1321. 


2812  SHEEIFF— 77.  Bond.  Ch.  67 

II.     Bond. 

2812.  County  commissioners  to  take.  The  board  of  county  com- 
missioners in  everv  founty  i^linll  take  and  approve  the  official  bonds 
of  the  sheriffs,  which  they  shall  cause  to  be  registered  and  the  origi- 
nals deposited  with  the  clerk  of  the  superior  court  for  safe-keeping. 
Said  bonds  shall  be  taken  on  the  first  Monday  of  December  next 
after  the  election  of  sheriffs,  but  no  board  shall  permit  any  former 
sheriff  to  give  bonds  for,  or  re-enter  upon  the  duties  of  the  ofiice, 
until  he  has  produced  before  the  board  the  receipt  in  full  of  every 
such  officer  for  taxes  which  he  has  or  should  have  collected. 

Code,  ss.  2066,  2068:  1868,  c.  20,  s.  32;  1876-7.  e.  276,  s.  5;  R.  C,  c.  105,  s.  6; 
1806,  e.  699,  s.  2;   1830,  c.  25,  s.  2. 

2813.  Justification  of,  required  when  bond  insufficient.  It  shall 

be  the  duty  of  the  board  of  county  commissioners  whenever  they 
shall  be  of  opinion  that  the  bonds  of  the  sheriff  of  their  county  are 
insufficient,  to  notify  said  sheriff  in  writing  to  appear  within  ten 
days  and  give  other  and  better  sureties,  or  jiistify  the  sureties  on  his 
bonds;  and  in  case  such  sheriff  shall  fail  to  appear  on  notice,  or  fail 
to  give  sufficient  bonds,  or  to  justify  his  bonds,  it  shall  be  the  duty 
of  said  board  to  elect  forthwith  some  suitable  person  in  the  coimty 
as  sheriff  for  the  unexpired  term,  and  who  shall  give  proper  and 
lawful  bonds  and  be  subject  to  like  obligations  and  penalties. 
Code,  s.  2074;  1879,  c.  100,  s.  2. 

2814.  Commissioners  liable  for  loss,  when.   If  any  board  of 

county  commissioners  shall  fail  to  comply  in  good  faith  with  the 
provisions  of  this  subchapter,  they  shall  be  liable  for  all  loss  sus- 
tained in  the  collection  of  taxes,  on  motion  to  be  made  by  the  solic- 
itor of  the  district. 

Code,  s.  2075;  1868-9,  c.  245,  s.  3. 

2815.  Liability  of  sureties  on.  The  sureties  to  a  sheriff's  bond 
shall  be  liable  for  all  fines  and  amercements  imposed  on  him,  in  the 
same  manner  as  they  are  liable  for  other  defaults  in  his  official  duty. 

Code,  s.  2076;  R.  C,  e.  105,  s.  14;  1829,  c.  33. 

III.     Duties  of. 

2816.  To  receipt  for  process.  Every  sheriff,  coroner  or  con- 
stable shall,  when  requested,  give  his  receipt  for  all  original  and 
mesne  process  placed  in  his  hands  for  execution,  to  the  party  suing 
out  the  same,  his  agent  or  attorney;  an^  such  receipt  shall  be  admis- 
sible as  evidence  of  the  facts  therein  stated,  against  such  officer  and 

845 


2816  SHERIFF— 7/7.  Duties  of.  Ch.  G7 

liis  sureties,  in  any  suit  between  the  party  taking  the  receipt  and 

such  officer  and  his  sureties. 

Code,  s.  2081;  R.  C,  c.  105,  s.  18;  1848,  c.  97. 

Note.     For  duty  to  endorse  date  of  receiving  process,  see  s.  914. 

2817.  Execute  process;  false  return,  penalty  for.  Every  sher- 
iff, by  himself  or  his  lawful  deputies,  shall  e.xecute  all  writs  and 
other  jjrocess  to  him  legally  issued  and  directed,  within  his  county, 
or  upon  any  river,  bay,  or  creek  adjoining  thereto,  or  in  any  other 
place  where  he  may  lawfully  execute  the  same,  and  make  due  return 
thereof,  under  the  penalty  of  forfeiting  one  hundred  dollars  for  each 
neglect,  where  such  process  shall  be  delivered  to  him  twenty  days 
before  the  sitting  of  the  court  to  which  the  same  is  returnable,  to  be 
paid  to  the  party  aggrieved  by  order  of  the  court,  upon  motion  and 
proof  of  such  deliverj^,  unless  such  sheriff  can  show  sufficient  cause 
to  the  court,  at  the  next  suceeding  term  after  the  order;  and  for 
every  false  return,  the  sheriff  shall  forfeit  and  pay  five  hundred 
dollars,  one  moiety  thereof  to  the  party  aggrieved,  and  the  other  to 
him  that  will  sue  for  the  same ;  and  moreover  be  further  liable  to  the 
action  of  the  party  aggrieved,  for  damages ;  and  every  sheriff  and 
his  deputies,  and  every  constable  shall  execute  all  writs  and  other 
process  to  him  legally  issued  and  directed  from  a  justice's  court  and 
make  due  return  thereof,  under  penalty  of  forfeiting  one  hundred 
dollars  for  each  neglect  or  refusal,  where  such  process  shall  be 
delivered  to  him  ten  days  before  the  return  day  thereof,  to  be  paid 
to  the  party  aggrieved  by  order  of  the  said  court,  upon  motion  and 
proof  of  such  delivery,  unless  such  sheriff  or  constable  can  show 
sufficient  cause  to  the  court  at  a  day  within  three  months  from  the 
date  of  the  entry  of  the  judgment  nisi,  of  which  the  said  officer  shall 
be  duly  notified. 

Code,  s.  2079;  1899,  e.  25;  R.  C,  c.  105,  s.  17;  1777,  c.  218,  s.  5;  1821,  c.  1110; 
1874-.5,  c.  .3.3. 

Note.  For  duty,  and  penalty  for  failure,  in  entering  date  of  receipt  of  process, 
see  s.  914. 

2818.  Notice  of  judgment  nisi,  how  given.   In  all  cases  where 

any  sheriff  or  other  officer  shall  be  amerced  for  failure  to  make  due 
return  of  any  execution  or  other  process  placed  in  his  hands,  or  for 
any  default  whatsoever  in  office,  and  judgment  nisi  or  otherwise  for 
the  penalty  or  forfeiture  in  such  case  made  and  provided  shall  bo 
entered,  it  shall  be  sufficient  to  give  such  sheriff  notice,  according  to 
law,  under  the  hand  of  the  clerk  and  seal  of  the  court,  where  such 
judgiuent  may  bo  entered,  of  a  motion  for  a  judg-ment  absolute,  or 
for  execution,  as  the  case  may  be;  and  no  other  notice,  summons  or 
suit  shall  be  necessary  to  enforce  the  same;  and  such  proceedings 


2818  SHERIFF— Z/Z.  Didics  of.  Ch.  67 

shall  be  deemed  and  held  in  aid  of  a  suit  or  other  proceedings  already 
instituted  in  court. 

Code,  s.  446;  1871-2,  e.  74.  s.  4. 

2819.  Summonses,  orders  and  judgments,  how  executed.  When- 
ever the  sheriff  may  be  required  to  serve  or  execute  any  summons, 
order  or  judgment,  or  to  do  any  other  act,  he  shall  be  bound  to  do 
so  in  like  manner  as  upon  process  issued  to  him,  and  shall  be  equally 
liable  in  all  respects  for  neglect  of  duty;  and  if  the  sheriff  be  a 
party,  the  coroner  shall  be  bound  to  perform  the  service,  as  he  is 
now  bound  to  execute  process  where  the  sheriff  is  a  party;  and  this 
chapter  reLating  to  sheriffs  .shall  apply  to  coroners  when  the  sheriff 
is  a  party.  Sheriffs  and  coroners  may  return  process  by  mail. 
Their  liabilities  in  respect  to  the  execution  of  process  shall  be  as 
lirescribed  by  law. 

Code,  s.  598;  C.  C.  P.,  s.  354. 

2820.  Outgoing  sheriffs  not  executing  process,  penalty.   Any 

sheriff'  who  shall  have  recei\'C(l  a  precept,  and  shall  go  out  of  office 
before  the  return  day  thereof,  without  having  executed  the  same, 
shall  forfeit  and  pay  to  the  party  at  whose  instance  it  was  issued 
the  sum  of  one  hundred  dollars,  if  such  precept  shall  have  remained 
in  his  hands  for  such  length  of  time  wherein  it  might  have  been  well 
executed  by  him ;  unless  the  same  shall  ha\'e  been  thereafter  executed 
by  the  successor  of  such  sheriff,  and  returned  at  the  day  and  place 
commanded  therein ;  or  unless  it  shall  have  been  delivered  over  to 
the  siicceeding  sheriff  time  enough  to  have  allowed  of  its  being  exe- 
cuted by  him ;  and  the  penalty  aforesaid  shall  be  recoverable  by 
notice  against  such  outgoing  sheriff'  and  his  sureties. 
Code,  s.  2088;  R.  C,  c.  105,  s.  25. 

2821.  Pay  money  to  plaintiff,  or  into  clerk's  office.  In  all  cases 

where  a  sheriff"  has  collected  money  upon  an  execution  ]ilaced  in  his 
hands,  if  there  be  no  bona  fide  contest  over  the  application  thereof, 
he  shall  immediately  pay  the  same  to  the  plaintiff,  or  into  the  ofiice 
of  the  clerk  of  the  court  from  which  the  execution  issued,  and  upon 
his  failure  to  make  such  payment  upon  demand,  he  shall  be  liable 
to  a  penalty  of  one  hundred  dollars,  to  be  collected  as  other  penalties. 

Code,  s.  20S0. 

2822.  Solicitor  to  prosecute  officer  for  escape.  It  shall  be  the 

duty  of  solicitors,  when  they  shall  be  informed  or  have  knowledge 
of  any  felon,  or  person  otherwise  charged  with  any  crime  or  offense 
against  the  state,  having  within  their  respective  districts  escaped  out 
of  the  custody  of  any  sheriff,  deputy  sheriff,  coroner,  constable  or 

847 


2822         -  SHERIFF— ///.  Duties  of.  Cb.   07 

jailer,  to  take  the  necessarj'  measures  to  prosecute  sucli  sheriff,  or 
other  officer   so   offending. 

Code,  s.  1023;  E.  C,  c.  34,  s.  36;  1791,  e.  343,  s.  2. 

2823.  Not  to  allow  escape.  When  any  sheriff  shall  take  or  re- 
ceive and  have  in  kec])ing  the  body  of  any  debtor  in  execution,  or 
upon  attachment  for  not  performing  a  judgment  for  the  payment  of 
any  sum  of  money,  and  shall  wilfully  or  negligently  s\ift'er  such 
debtor  to  escape,  the  person  suing  out  such  execution  or  attachment, 
his  executors,  or  administrators,  shall  have  and  maintain  an  action 
for  the  debt  against  such  sheriff  and  the  sureties  on  his  official  bond, 
and  in  case  of  his  death,  against  his  executors  or  administrators,  for 
the  recovery  of  all  such  sums  of  money  as  are  mentioned  in  the  said 
execiition  or  attachment,  and  damages  for  detaining  the  same. 

Code,  s.  2083;  E.  C,  c.  105,  s.  20;  13  Edw.  I.,  c.  11;  1777,  c.  118,  ss.  10,  11. 

2824.  Have  custody  of  jail.    The  sheriff  shall  have  the  care  and  i 

custody  of  the  jail  in  his  county;  and  shall  be,  or  appoint,  the  keeper 
thereof.  i 

Code,  s.  2085;  E.  C,  c.  105,  s.  22. 

2825.  Prevent  jail  breaking  for  lynching.   When  the  sheriff  of 

any  county  has  good  reason  to  believe  that  the  jail  of  his  county  is 
in  danger  of  being  broken  or  entered  for  the  purpose  of  killing  or 
injuring  a  prisoner  placed  by  the  law  in  his  custody,  it  shall  be  his 
duty  at  once  to  call  on  the  commissioners  of  the  county,  or  some  one 
of  them,  for  a  sufficient  giiard  for  the  jail,  and  in  siich  case,  if  the 
commissioner  or  commissioners  fail  to  authorize  the  employment  of 
necessary  guards  to  protect  the  jail,  and  by  reason  of  such  failure 
the  jail  is  entered  and  a  prisoner  killed,  the  county  wherein  W'liose 
jail  the  prisoner  is  confined  shall  be  responsible  in  damages,  to  be 
recovered  by  the  p)ersonal  representatives  of  the  prisoner  thus  killed, 
by  action  begun  and  prosecuted  before  the  superior  court  of  any 
county  in  this  state. 
1893,  c.  461,  s.  7. 

2826.  Publish   list   of   delinquent   taxpayers.   Whenever   any 

sheriff  or  tax-collector  shall  be  credited  on  settlement  with  any  tax 
or  taxes,  by  him  returned  as  insolvent,  dead  or  removed,  he  shall 
forthwith  make  publication  at  the  courthouse  door,  and  at  least  one 
public  place  in  each  and  every  township  in  his  county,  of  a  com- 
plete list  of  the  names  of  such  insolvent,  dead  or  removed  delin- 
quents, with  the  amount  of  the  tax  due  from  each,  and  the  sum 
total  so  credited.  Such  list,  by  order  of  the  board  of  commission- 
ers, may  also  be  published  in  any  newspaper  printed  in  the  county ; 


2826  SHERIFF— 777.  Duties  of.  Cli.   C.7 

in  which  case,  the  expense  of  the  advertisement,  for  such  time  as 
may  be  directed,  shall  be  paid  by  the  county. 
Code,  s.  2092;  1876-7,  c.  78,  ss.  1,  2,  3. 

2827.  Furnish  list  of  liquor  dealers  to  grand  jury.  The  sheriff 

shall  lay  before  the  grand  jury  of  his  county,  at  each  court,  as  soon 
as  the  grand  jury  shall  be  assembled,  a  list  of  all  persons  who  may 
have  obtained  license  to  retail  spirituous  liquors  by  small  measure, 
within  two  years  previous  to  said  court;  which  list  the  foreman  of 
the  gxand  jury,  at  the  close  of  its  session,  shall  deliver  to  the  clerk 
for  safe-keeping;  and  any  sheriff  failing  to  perform  the  duty  afore- 
said shall  forfeit  and  pay  to  the  state  ten  dollars,  to  be  recovered 
by  the  prosecuting  officer,  in  the  same  manner  as  the  penalties  against 
sheriffs  for  not  returning  process. 

Code,  s.  2087;  R.  C,  c.  105,  s.  24;  1825,  c.  1272,  s.  4;  1850,  c.  185. 

2828.  Not  to  farm  office.  ISTo  sheriff  shall  let  to  farm  in  any 
manner,  his  county,  or  any  jiart  of  it,  under  pain  of  forfeiting  five 
hundred  dollars,  one-half  to  the  use  of  the  county,  and  the  other 
half  to  the  person  suing  for  the  same. 

Code,  s.  2084;  K.  C,  c,  105,  s.  21;  23  Hen.  VI.,  c.  10. 

2829.  Obligation  taken  by  sheriff,  payable  to  himself  only.  The 

sheriif  or  his  deputy  shall  take  no  obligation  of  or  from  any  person 
in  his  custody  for  or  concerning  any  matter  or  thing  relating  to  his 
office  otherwise  payable  than  to  himself  as  sheriff  and  dischargeable 
upon  the  prisoner's  appearance  and  rendering  himself  at  the  day 
and  place  required  in  the  writ  (whereupon  he  was  or  shall  be  taken 
or  arrested),  and  his  sureties  discharging  themselves  therefrom  as 
special  bail  of  such  prisoner  or  such  person  keeping  within  the  limits 
and  rules  of  any  prison ;  and  every  other  obligation  taken  by  any 
sheriff  in  any  other  manner  or  form,  by  color  of  his  office,  shall  be 
void,  except  in  any  special  case,  any  other  obligation  shall  be,  by 
law,  particularly  and  expressly  directed ;  and  no  sheriff  shall  demand, 
exact,  take  or  receive  any  greater  fee  or  reward  whatsoever,  nor  shall 
have  any  allowance,  reward  or  satisfaction  from  the  public,  for  any 
service  by  him  done,  other  than  such  sum  as  the  court  shall  allow 
for  ex  officio  services,  and  the  allowance  given  and  provided  by  law. 
Code,  s.  2082;  R.  C.  e.  105,  s.  19;  1777,  e.  118,  s.  8. 


Note.     Action  against,  barred  by  statute  of  limitations,  see  s.  393. 

When  jndire  absent,  adjourn  court  from  day  to  day,  see  s.  1510. 

Laying  off  liomestead,  see  s.  687. 

Bail  liable  to,  when,  see  Civil  Procedure. 

Bond  when  actin<;  as  county  treasurer,  see  s.  1397-. 

Duty  in  claim  and  delivery,  see  s.  794  et  seq. 

Duty  in  attachment,  see  s.  765  et  seq. 

Day  of  receipt  of  process  endorsed  thereon,  see  ss.  914,  3149. 

Rev.  Vol.  I— .jO  840 


2829  SHERIFF—///.  Duties  of.  Ch.   (57 

Deeds  made  by  whom  after  expiration  of  office  or  death  of  sherifT.  see  ss.  950. 
951,  2905. 

Duties  in  regard  to  prisoners  in  workhouse,  see  County  Prison. 

To  e.xecute  writs  for  board  of  internal  improvements,  see  Internal  Improve- 
ments. 

Failure  to  return  process  a  misdemeanor,  s.  3604. 

Penalty  for  failure  to  return  writ  of  habeas  corpus,  see  ss.  1834,  1S3G,  3582. 

Releasing  prisoner  without  bail,  s.  3208. 

Sales  under  execution,  s.  641  et  seq. 

Tax  collector  for  county,  ss.  1376,  2851. 


CHAPTEE  68. 
STATUTES,  CONSTRUCTION  OF. 

(Sections  28.30— 2S32.) 

2830.  Repeal  of  statute  not  to  affect  actions.  The  repeal  of 

a  statute  shall  not  aflFect  any  action  brought  before  the  repeal,  for 
any  forfeitures  incurred,  or  for  the  recovery  of  any  rights  accruing 
under  such  statute. 

Code,  s.  3764;  R.  C,  c.  lOS,  s.  1;  1830,  c.  4;  1879,  c.  163;  1881,  c.  48. 

2831.  Rules  for  construction  of  statutes.  In  the  construction 
of  all  statutes,  the  following  rules  shall  be  observed,  unless  such  con- 
struction would  be  inconsistent  with  the  manifest  intent  of  the  gen- 
eral assembly,  or  repugnant  to  the  context  of  the  same  statute,  that 
is  to  say : 

R.  C,  0.  108,  s.  2. 

1.  SiNGULAE  AND  PLURAL  NUMBER^   MASCULINE  GENDER,  ETC. 

Every  word,  importing  the  singular  number  only,  shall  extend 
and  be  applied  to  several  persons  or  things,  as  well  as  to  one  person 
or  thing;  and  every  word  importing  the  plural  number  only,  shall 
extend  and  be  applied  to  one  person  or  thing,  as  well  as  to  several 
persons  or  things ;  and  every  word  importing  the  masculine  gender 
only,  shall  extend  and  be  applied  to  females  as  well  as  to  males, 
unless  the  context  clearly  shows  to  the  contrary. 

2.  Authority  of  public  officers,  etc.,  exercised  by  majori- 

ties, UNLESS,  etc. 

All  words  purporting  to  give  a  joint  authority  to  three  or  more 

public  officers  or  other  persons  shall  be  construed   as  giving  such 

authority  to  a  majority  of  such  officers  or  other  persons,  unless  it 

shall  be  otherwise  expressly  declared  in  the  law  giving  tlie  authority. 


3S31  STATUTES,  CONSTEUCTIOIST  OF.  Ch.  68 

?>.  "Month"  and  "year." 

The  word  "month"  shall  be  construed  to  mean  a  calendar  month, 
unless  otherwise  exjiressed ;  and  the  word  "year,"  a  calendar  year, 
unless  otherwise  expressed;  and  the  word  "year"  alone  shall  be 
equivalent  to  the  expression  "year  of  our  Lord." 

4.  Leap-yeai;,,  how  counted. 

In  every  leap-year,  the  increasing  day  and  the  day  before,  in  all 
legal  proceedings,  shall  be  counted  as  one  day. 
R.  C,  c.  31;  21  Hen.  III. 

5.  "Oath"  and  "swoen." 

The  word  "oath"  shall  be  construed  to  include  "affirmation,"  in 
all  cases  where  by  law  an  affirmation  may  be  substituted  for  an 
oath,  and  in  like  cases  the  word  "  sworn"  shall  be  construed  to  in- 
clude the  word  "iiffirm." 

6.  "Peeson"  and  "peopeety." 

The  word  "person"  shall  extend  and  be  applied  to  bodies  politic 
and  corporate,  as  well  as  to  individuals,  unless  the  context  clearly 
shows  to  the  contrary.  The  words  "real  property"  shall  be  coexten- 
sive with  lands,  tenements  and  hereditaments.  The  words  "personal 
property"  shall  include  moneys,  goods,  chattels,  choses  in  action  and 
evidences  of  debt,  including  all  things  capable  of  ownership,  not 
descendible  to  the  heirs  at  law.  The  word  "property"  shall  include 
all  property,  both  real  and  personal. 

7.  "Preceding"  and  "following." 

The  words  "preceding"  and  "following,"  when  used  by  way  of 
reference  to  any  section  of  this  Revisal  shall  be  construed  to  mean 
the  section  next  preceding  or  next  following  that  in  which  such 
reference  is  made ;  unless  when  some  other  section  is  expressly  des- 
ignated in  such  refei'ence. 

8.  "Seal." 

In  all  cases  in  which  the  seal  of  any  court  or  public  office  shall 
be  required  by  law  to  be  affixed  to  any  paper  issuing  from  such 
court  or  office,  the  word  "seal"  shall  be  construed  to  include  an  im- 
pression of  such  official  seal,  made  upon  the  paper  alone,  as  well 
as  an  impression  made  by  means  of  a  wafer  or  of  wax  affixed  thereto. 

9.  "Will." 

The  term  "will"  shall  be  construed  to  include  codicils  as  well 
as  wills. 


851 


2831  STATUTES,  CONSTEUCTIOX  OF.  Ch.  0^ 

10.  "Wkitten"  and  "in  writing." 

The  words  "wi-itten"  and  "in  writing,"  may  be  construed  to 
include  printing,  engTaving,  lithographing,  and  any  other  mode  of 
representing  words  and  letters:  Provided,  that  in  all  cases  where 
a  Avritten  signature  is  Z'eqnired  by  laM',  the  same  shall  be  in  a  proper 
handwTiting,  or  in  a  proper  mark. 

11.  "State"   and   "United  States." 

The  word  "state,"  when  applied  to  the  different  parts  of  the 
United  States,  shall  be  construed  to  extend  to  and  include  the  Dis- 
trict of  Columbia  and  the  several  territories,  so-called ;  and  the  words 
"United  States"  .shall  be  construed  to  include  the  said  district  and 
territories  and  all  dependencies. 

12.  "Impeisonment  foe  one  month/'  how  consteued. 

The  words  "imprisonment  for  one  month,"  wherever  used  in  any 
of  the  statutes,  shall  be  construed  to  mean  "imprisonment  for  thirty 
days." 

Code,  s.  3765. 

2832.  Where  amended,  how  construed.  Where  a  part  of  a  stat- 
ute is  amended  it  is  not  to  be  considered  as  having  been  repealed 
and  re-enacted  in  the  amended  form;  but  the  portions  which  are 
not  altered  are  to  be  considered  as  having  been  the  law  since  their 
enactment,  and  the  new  provisions  as  having  been  enacted  at  the  time 
of  the  amendment. 

Code,  s.  3766;  1868-9,  c.  270,  s.  22;  1870-1,  e.  111. 


CHAPTEE  69. 
STRAYS. 

(Sections  2833—2835.) 

2833.  Owner  notified;  if  unknown,  register  of  deeds  notified. 

Any  person  who  shall  take  ui>  any  stray  liorsc,  mare,  cult,  mule,  ass 
or  jennet,  neat  cattle,  hog  or  sheej),  shall  within  ten  days  after  taking 
up  such  stray  inform  the  owner,  if  to  liim  known,  if  not,  ho  shall 
inform  the  register  of  deeds  of  the  supposed  age,  marks,  brands  and 
color  of  the  stray,  and  that  the  same  was  taken  up  at  his  plantation  or 
place  of  abode ;  whereupon  the  register  of  deeds  sliall  record  such 
infdrnuition  in  a  book  kept  by  him  for  that  pur]iose,  for  M'liicli  serv- 


:i8;5;J  STEAYS.  Ch.  69 

ice  the  taker-up  of  said  stray  or  strays  shall  pay  a  fee  of  twenty-five 
cents,  excejDt  for  hogs  and  sheep,  for  which  the  fee  shall  be  ten  cents. 
The  register  of  deeds  shall  at  once  publish  a  notice  of  the  taking  up 
of  such  stray,  by  posting  the  same  at  the  courthouse  door,  and  if  the 
cost  does  not  exceed  two  dollars,  then  in  some  newspaper  published 
in  the  county.  Such  notices  shall  be  published  for  thirty  days,  and 
shall  contain  a  full  and  complete  description  of  said  stray  and  of  all 
marks  or  brands  on  the  same,  and  when  and  where  the  same  was 
taken  up.  The  fees  for  ijublishing  such  notices  shall  be  paid  by  the 
party  taking  up  the  stray. 
Code,  s.  3768;  1874-.5,  c.  258,  s.  2. 

2834.  Owner  may  reclaim.  When  any  stray  has  been  taken  up, 
the  owner  may  at  any  time  before  a  sale  reclaim  such  stray  by  prov- 
ing his  ownership  and  paying  to  the  party  capturing  the  same  the 
actual  costs  paid  the  register  of  deeds  as  provided  in  the  preceding 
section,  together  with  the  actual  costs  of  keeping  such  stray,  as  fixed 
by  the  county  commissioners.  The  board  of  commissioners  of  the 
several  counties  shall  fix  a  scale  of  costs  for  keeping^  strays. 

2835.  When  and  how  strays  sold.  If  the  owner  of  any  stray 
shall  fail  to  claim  the  same  within  thirty  days  after  the  publication 
of  the  notice  required  by  law,  the  person  taking  up  the  stray  shall 
cause  the  stray  to  be  ajjpraised  by  the  nearest  magistrate  and  two 
freeholders,  none  of  whom  shall  receive  any  fees  for  such  services. 
Such  appraisement  shall  give  a  full  and  accurate  description  of  such 
stray  and  shall  by  the  magistrate  be  returned  to  the  register  of  deeds, 
and  by  him  recorded  in  his  book  for  strays ;  and  the  register  of  deeds 
shall  issue  an  order  to  the  sheriff  directing  him  to  sell  such  stray 
and  the  sheriff  shall  sell  such  stray  at  public  auction  after  ten  days 
public  advertisement  as  for  sales  of  personal  property  imder  execu- 
tion ;  and  out  of  the  proceeds  he  shall  pay  the  cost  of  piiblishing  the 
notices  as  to  strays,  the  costs  of  keeping  and  the  costs  of  sale,  and 
shall  pay  the  surplus  to  the  county  treasurer  for  the  benefit  of  the 
public  school  fund  of  the  coimty.  The  county  board  of  education 
shall,  at  any  time  within  twelve  months  after  such  funds  have  been 
paid  to  the  county  treasurer,  upon  due  proof  of  ownership,  issue  an 
order  commanding  the  county  treasurer  to  pay  to  the  owner  of  the 
stra}'  the  net  amount  paid  the  county  treasurer  as  the  proceeds  of 
the  sale  of  the  stray. 


853 


2836  SUISFDAY  AND  HOLIDAYS.  Cb.  7(> 


CHAPTER  70. 
SUNDAY  AND  HOLIDAYS. 

(Sections  283C— 2839.) 

2836.  Work  in  ordinary  calling  on  Sunday  forbidden.   On  the 

Lord's  day,  commoiil}'  called  Sunday,  no  tradesman,  artificer,  planter, 
laborer,  or  otber  person,  sball,  upon  land  or  water,  do  or  exercise 
any  labor,  business  or  work,  of  bis  ordinary  calling,  works  of  neces- 
sity and  charity  alone  excepted,  nor  employ  himself  in  bunting,  fish- 
ing or  fowling,  nor  use  any  game,  sport  or  play,  upon  pain  that  every 
jjerson  so  offending,  being  of  the  age  of  fourteen  years  and  upwards, 
shall  forfeit  and  pay  one  dollar. 

Code,  s.  3782;  R.  C,  c.  115;   1741,  c.  30,  s.  2. 

2837.  What  process  executed  on  Sunday,  it  shall  not  be  lawful 

for  any  sheriff,  constable,  or  otber  officer  to  execute  any  summons, 
capias,  or  otber  process  on  Sunday,  unless  the  same  be  issiied'for 
treason,  felony  or  misdemeanor. 

Code,  s.  928;  R.  C,  c.  31,  s.  54;  1777,  c.  118,  s.  G. 

2838.  Dates  of  public  holidays.  The  first  day  of  January,  the 
nineteenth  day  of  January,  the  twenty-second  day  of  February',  the 
tenth  day  of  May,  the  twentieth  day  of  May,  the  fourth  day  of  July, 
the  first  Monday  in  September,  the  day  appointed  by  the  governor  as  a 
thanksgiving  day,  and  the  twenty-fifth  day  of  December  of  each  and 
every  year,  are  declared  to  be  public  holidays;  and  whenever  any 
siK'b  holiday  sball  fall  upon  Sunday,  the  Monday  following  shall  be  a 
public  holida}'. 

Code,  s.  3784;  1891,  c.  58;  1899,  e.  410;  1901,  c.  25;  1881,  c.  294. 

2839.  Acts  to  be  done  on  Sunday  or  holidays.  Where  the  day 

or  the  last  day  for  doing  an  act  required  or  permitted  by  law  to  be 
done  falls  on  Sunday  or  on  a  holiday  the  act  may  be  done  on  the 
next  succeeding  secular  or  business  day. 
Code,  ss.  3784,  3785,  3780;  1899,  c.  733,  s.  194. 


2840  SURETY.  Ch.  71 


CHAPTEE  71. 
SURETY. 

(Sections  2840— 2848.) 

2840.  Suretyship  shown,  what  judgment  and  execution  to  con- 
tain. In  the  trial  of  actions  upon  contracts,  either  of  the  defendants 
may  show  in  evidence  that  he  is  snrety,  and  if  it  be  satisfactorily 
shown,  the  jury  in  their  verdict,  or  the  justice  of  the  peace  in  his 
judgment,  shall  distinguish  the  principal  and  surety,  w-hieh  shall 
be  indorsed  on  the  execution  by  the  clerk,  or  justice  of  the  peace 
issuing  it. 

Code,  s.  2100;  R.  C,  c.  31,  s.  124;  1826,  c.  31,  s.  1. 

2841.  Property  of  principal  sold  before  that  of  surety.  Wben 

an  execution,  indorsed  as  aforesaid,  shall  come  to  the  hands  of  any 
officer  for  collection,  he  shall  levy  on  all  the  property  of  the  princi- 
pal, or  so  much  thereof  as  shall  be  necessary  to  satisfy  the  execution, 
and  for  want  of  sufficient  property  of  the  principal,  also  on  the  prop- 
erty of  the  surety,  and  make  sale  of  all  the  property  of  the  princi- 
pal levied  on  before  that  of  the  surety. 

Code,  s.  2101;  R.  C,  c.  31,  s.  125;   1826,  e.  31,  s.  2. 

2842.  Summary  remedy  for  and  against  principal.  Any  per- 
son, who  may  have  paid  money  for  and  on  account  of  those  for  whom 
he  became  surety,  upon  producing  to  the  superior  court,  or  any  jus- 
tice of  the  peace  having  jurisdiction  of  the  same,  a  receipt,  and  show- 
ing that  an  execution  has  issued,  and  he  has  satisfied  the  same, 
and  making  it  appear  by  sufficient  testimony,  that  he  has  laid  out 
and  expended  any  sum  of  money,  as  the  surety  of  such  person,  may 
move  the  court  or  justice  of  the  peace,  as  the  case  may  be,  for  judg- 
ment against  his  principal,  for  the  amount  which  he  has  actually 
paid;  a  citation  having  previously  issued  against  the  principal  to 
show  cause  why  execution  should  not  be  awarded;  and  should  not 
the  principal  show  sufficient  cause,  the  court  or  justice  shall  award 
execution  against  the  estate  of  the  principal. 

Code,  s.  2093;  R.  C,  c.  110,  s.  1;  1797,  c.  487,  s.  1. 

2843.  Surety  paying  debt  of  deceased  principal,  subrogated  to 

creditors'  rights.  Whenever  a  surety,  or  his  representative,  shall 
pay  the  debt  of  his  deceased  principal,  the  claim  thus  accruing  shall 


28i3  SURETY.  Cli.   71 

have  such  priority  in  the  administration  of  the  assets  of  the  princi- 
pal as  had  the  debt  before  its  payment. 

Code,  s.  2090;  R.  C,  c.  110,  s.  4;   1829.  c.  23. 

2844.  Co-surety  liable  for  contribution.  Where  there  are  two  or 
more  sureties  for  the  performance  of  a  contract,  and  one  or  more  of 
them  may  have  been  compelled  to  perform  and  satisfy  the  same,  or 
any  part  thereof,  and  the  principal  shall  be  insolvent,  or  out  of  the 
state,  such  surety  may  have  and  maintain  an  action  against  every 
other  surety,  for  a  just  and  ratable  proportion  of  the  sum  which 
may  have  been  paid  as  aforesaid,  whether  of  principal,  interest  or 
cost. 

Code,  s.  2094;  E.  C,  e.  110,  s.  2;  1807,  c.  722. 

2845.  May  dissent  from  stay  of  execution;  not  then  liable  to 

surety  on  stay.  Whenever  any  judgment  shall  be  obtained  before 
a  justice,  against  a  principal  and  his  surety,  and  the  principal  debtor 
shall  desire  to  stay  the  execution  thereon,  but  the  surety  is  unwilling 
that  such  stay  shall  be  had,  the  surety  may  cause  his  dissent  thereto 
to  be  entered  by  the  justice,  which  shall  absolve  him  from  all  lia- 
bility to  the  surety  who  may  stay  the  same.  And  the  constable  or 
other  officer,  who  may  have  the  collection  of  the  debt,  shall  make  the 
money  out  of  the  propei-ty  of  the  principal  debtor,  and  that  of  the 
surety  for  the  stay  of  execution,  if  he  can,  before  he  shall  sell  the 
property  of  the  surety  before  judgment. 

Code,  s.  2095;  E.  C,  c.  110,  s.  3;  1829,  c.  6,  ss.  1,  2. 

2846.  May  notify  creditor  to  collect;  penalty  for  delay,  in  all 

cases  where  any  surety  or  indorser  on  any  note,  bill,  bond,  or  other 
written  obligation,  shall  consider  himself  in  danger  of  loss  in  conse- 
quence of  his  contingent  liability,  either  from  the  insolvency  or  mis- 
conduct of  the  principal,  in  said  note,  bill,  bond,  or  other  written 
obligation,  or  from  the  negligence  of  the  payee  or  holder  of  any 
such  instrument,  it  shall  be  lawfvil  for  such  surety  or  indorser,  at 
any  time  after  such  note,  bill,  bond,  or  other  written  obligation  shall 
have  become  due  and  payable,  to  cause  written  notice  to  be  given  to 
the  payee  or  holder  of  any  such  paper  or  obligation,  requiring  him  to 
bring  suit  on  said  obligation,  and  to  use  all  reasonable  diligence  to 
save  harmless  such  surety  or  indorser:  Provided,  nothing  herein 
contained  shall  apply  to  official  bonds,  or  bonds  given  by  any  person 
acting  in  a  fiduciary  capacity. 
Code,  .«.  2097;  18G8-9,  c.  232,  s.  1. 

2847.  Negligence  of  creditor  discharges  surety,  when;  proviso. 

Should  the  payee  or  holder  of  any  such  note,  bond,  bill,  or  other 
written  obligation,  refuse  or  fail,  witliin  tiiirty  days  from  the  serv- 

856 


2847  SURETY.  Ch.  71 

ice  of  said  notice,  to  bring  suit  in  the  appropriate  court  in  an 
effort  to  save  harmless  such  surety  or  indorser,  such  refusal  or  fail- 
ure to  sue  shall  operate  as  a  discharge  of  such  surety  or  indorser, 
from  all  liability  whatever,  on  any  such  note,  bond,  bill,  or  other 
written  obligation:  Provided,  that  this  notice  shall  not  have  the 
effect  to  discharge  from  liability  any  co-surety  who  does  not  join 
in  STich  notice,  or  who  has  not  given  a  separate  notice :  Provided  fur- 
ther, that  this  and  the  preceding  section  shall  not  apply  to  holders 
of  such  note,  bond,  bill,  or  obligation,  who  hold  the  same  as  collateral 
security  or  in  trust. 

Code,  s.  2098;   1868-9,  c.  232,  s.  2. 

2848.  How  notice  served.  Such  notice  shall  be  served  by  the 
sheriff'  or  his  deputy,  who  shall  return  it  to  the  l^arty  for  whose 
benefit  the  notice  was  issued,  which  shall  be  evidence  of  the  fact  in 
all  courts. 

Code.  s.  2099:   1868-9,  c.  232,  s.  3. 


Note.    For  remedy  of  surety  on  executor's  bond,  see  Administration. 
For  evidence  against  principal  aa  against  surety,  sees.  285. 


CHAPTER  7:^. 
TAXES,  COLLECTION  OF. 


I. 

General  provisions. 

2849- 

-2858 

II. 

Life  tenants  and  coten; 

nts. 

2859- 

-2860 

III. 

Infants  and  lunatics, 

2861- 

-2862 

IV. 

Lien  of  taxes, 

2863- 

-2866 

V. 

Sheriff's  powers  and  duties, 

2867- 

-2883 

VI. 

Sale  of  personalty, 

2884- 

-2880 

VII. 

Sale  of  realty. 

2887- 

-2898 

nu. 

Certificate  of  sale, 

2899- 

-2902 

IX. 

Deeds  under  tax  sale, 

2903- 

-2909 

X. 

Purchasers  at  tax  sale. 

2910- 

-2912 

XI. 

Redemption, 

2913- 

-2914 

I.      Genee.vl  Provisions. 

2849.  Chapter  to  remain  in  force  unless  expressly  repealed  or 
amended  by,  or  clearly  in  conflict  with,  later  acts.  The  provis- 
ions of  this  chapter  slinll  continue  in  force  whether  or  not  brought 
forward  in  suKsequeut  acts  to  raise  revenue  or  acts  to  provide  for  the 
assessment  and  collection  of  taxes,  commonly  called  "revenue  acts" 


2849     TAXES,  COLLECTIOX  OF—/.   Gen.  Fronsmis.     Ob.   7l' 

and  "machinery  acts,"  unless  and  nntil  expressly  repealed  or 
amended  by,  or  clearly  inconsistent  witb,  subsequent  legislation;  it 
being  the  intention  of  the  general  assembly  that  this  chapter  shall 
be  a  standing  provision  for  the  government  of  the  matters  embraced 
therein,  and  not  to  be  repealed  by  implication  because  omitted  in 
whole  or  in  part  from  subsequent  legislation  on  the  subject  of  taxa- 
tion. 

2850.  Application  and  construction  of  this  chapter.  The  pro 

visions  of  this  chapter  shall  apply  to  all  taxes  as  defined  in  this 
chapter,  Avhether  state,  county,  town,  city,  or  other  municipal  sub- 
division; and  shall  be  liberally  construed  in  favor  of,  and  in  f\ir 
therance  of,  the  collection  of  such  taxes. 

2851.  Definitions.  Unless  siich  construction  or  definition  would 
be  manifestly  inconsistent  with  or  repugnant  to  the  context,  the 
words  and  phrases  folloAving,  whenever  used  in  this  chapter,  shall 
be  construed  to  include  in  their  meaning  the  definitions  set  opposite 
the  same  in  this  section: 

1.  "Tax,"  "taxes."  Any  taxes,  special  assessments  or  costs,  inter- 
est or  penalty  imposed  upon  projierty  or  polls. 

2.  "He."  Male,  female,  company,  corporation,  firm,  society, 
singular  or  plural  number. 

3.  "Real  property."  Real  estate,  land,  tract,  lot — not  only  the 
land  itself,  whether  laid  out  in  town  or  city  lots  or  otherwise  with 
all  things  therein,  but  also  all  buildings,  structures  and  improve- 
ments and  other  permanent  fixt^ires  of  whatever  kind  thereon,  and 
all  rights  and  privileges  belonging  or  in  anywise  appertaining 
thereto,  and  all  estates  therein. 

4.  "Sheriff."  Every  person  who  is  by  law  authorized  to  collect 
taxes,  either  state  or  municipal. 

190,3,  c.  251,  s.  86. 

2852.  When  taxes  are  due.  Unless  otherwise  expressly  provided 
by  law,  all  taxes  shall  be  due  on  the  first  [Monday  in  September  of 
each  year  and  collection  thereof  may  be  enforced  on  and  after  that 
day. 

1903,  c.  2.51,  s.  79. 

2853.  Payable  in  national  currency.  Taxes  are  payable  in  the 

existing  national  currency,  and  sludl  be  collected  as  ])ri'scril)L'd  by 
this  chapter,  except  where  otherwise  provided  by  law. 

Code,  s.  .3074;   1872-3,  c.  144,  s.  1;   1903,  c.  247,  s.  1. 

2854.  No  taxes  to  be  released;  penalty.   Xo  board  of  county 

commissioners,  or  council,  or  board  of  aldermen  or  conunissioners  of 


2854    TAXES,  COLLECTION  OF—/.   Gen.  Pioi-isioiis.     Ch.  72 

any  city  or  town  shall  have  power  to  release,  discharge,  remit  or 
commute  any  portion  of  the  taxes  assessed  and  levied  against  any 
person  or  property  within  their  respective  jurisdictions  for  any  rea- 
son whatever;  and  any  tax  so  discharged,  released,  remitted  or  com- 
muted, may  be  recovered  by  civil  action  from  the  members  of  any 
such  board  at  the  suit  of  any  citizen  of  the  county,  city  or  town,  as 
the  case  may  be,  and  when  collected  shall  be  paid  to  the  proper 
treasurer.  Nothing  in  this  section  shall  be  construed  to  prevent  the 
proper  authorities  from  refunding  taxes  as  provided  in  this  chapter ; 
nor  to  interfere  with  the  powers  of  any  officers  or  boards  sitting 
as  a  board  of  equalization  of  taxes;  nor  construed  to  exempt  any 
taxpayer  or  property  from  liability  for  taxes  released,  discharged, 
remitted  or  commuted  in  violation  of  this  section. 

1901,  c.  558,  s.  31. 

2855.  Injunction  and  replevin  not  allowed;  remedy  of  taxpayer. 

Unless  a  tax  or  assessment,  or  some  part  thereof,  be  illegal  or 
invalid,  or  be  levied  or  assessed  for  an  illegal  or  imauthorized  pur- 
pose, no  injunction  shall  be  granted  by  any  court  or  judge  to  restrain 
the  collection  thereof  in  whole  or  in  part,  nor  to  restrain  the  sale 
of  any  property  for  the  nonpayment  thereof;  nor  shall  any  court 
issue  any  order  in  claim  and  delivery  proceedings  or  otherwise  for 
the  taking  of  any  personalty  levied  on  by  the  sheriff  to  enforce 
payment  of  such  tax  or  assessment  against  the  owner  thereof.  When- 
ever any  person  shall  claim  to  have  a  valid  defense  to  the  enforce- 
ment of  a  tax  or  assessment  charged  or  assessed  upon  his  property 
or  poll,  such  person  shall  pay  such  tax  or  assessment  to  the  sheriff ; 
but  if,  at  the  time  of  such  payment,  he  shall  notify  the  sheriif  in 
writing  that  he  pays  the  same  lender  protest,  such  payment  shall  be 
without  ijrejudice  to  any  defenses  or  rights  he  may  have  in  the 
premises,  and  he  may,  at  any  time  within  thirty  days  after  such 
payment,  demand  the  same  in  writing  from  the  treasurer  of  the 
state  or  of  the  county,  city  or  town,  for  the  benefit  or  under  the 
authority  or  by  request  of  which  the  same  was  levied ;  and  if  the 
same  shall  not  be  refunded  within  ninety  days  thereafter,  may  sue 
such  county,  city  or  town  for  the  amount  so  demanded,  including 
in  his  action  against  the  county  both  state  and  county  tax;  and  if 
upon  the  trial  it  shall  be  determined  that  such  tax  or  any  part  thereof 
was  levied  or  assessed  for  an  illegal  or  unauthorized  purpose,  or  was 
for  any  reason  invalid  or  excessive,  judgment  shall  be  rendered 
therefor,  with  interest,  and  the  same  shall  be  collected  as  in  other 
ca.ses.  The  amount  of  state  taxes  for  which  judgment  shall  be  ren- 
dered in  such  action  shall  be  refunded  by  the  state  treasurer. 

moi,  c.  5.'58,  s.  30. 
Note.     See  also  s.  821. 


2S5G     TAXES,  COLLECTIOX  OF— 7.   Gen.  rrovlsium.     Ch.   72 

2856.  How  tax  list  endorsed;  equivalent  to  judgment  and  exe- 
cution. Evcrv  tax  list  before  being  jilaeed  in  the  liaiids  of  tlie  sheriiT 
shall  be  endorsed  by  the  authorities  levying  the  taxes,  with  an  order 
for  their  collection.  The  order  shall  be  in  the  following  or  similar 
form : 

State  of  Noitli  Carolina, County. 

OHice  of  Board  of  Commissioners  of County  (or  town). 

To  the  Sheriff  (or  Constable)  of County  (or  town) — Greeting: 

By  order  of  the  board,  you  are  hereby  commanded  to  collect  the  taxes  herein 
mentioned,  according  to  the  provisions  and  requirements  of  the  existing  law. 

In  witness  whereof,  1  have  hereunto  set  my  hand  and  official  seal,  this  the  .... 
day  of ,  19 

[L.  S.]  ,  Clerk  Board  of  Commissioners  of County. 

The  tax  list,  when  thus  endorsed,  shall  have  the  force  and  effect! 
of  a  duly  docketed  judgment  and  of  an  execution  against  the  real 
and  personal  projjerty  of  the  persons  charged  with  taxes  on  such 
list. 

Code,  s.  3681;   1903,  c.  251,  s.  74;  1872-3,  c.  115,  s.  21;  1876",  c.  155.  s.  22. 

2857.  Taxes  to  be  paid  in  cases  of  judicial  sales  and  sales 

under  powers.  In  all  civil  actions  and  special  proceedings  wherein 
the  sale  of  any  real  estate  shall  be  ordered,  the  judgment  shall  pro- 
vide for  the  payment  of  all  taxes  then  assessed  upon  the  property 
and  remaining  unpaid,  and  for  the  payment  of  such  sums  as  may  be 
required  to  redeem  the  property,  if  it  has  been  sold  for  taxes  and 
such  redemption  can  be  had;  all  of  which  payments  shall  be  ad- 
judged to  be  made  out  of  the  proceeds  of  sale.  The  judgment  shall 
adjust  the  disbursements  for  such  taxes  and  expenses  of  redemption 
from  tax  sales  between  the  parties  to  the  action  or  proceeding  in 
accordance  with  their  respective  rights.  And  whenever  any  real 
estate  shall  be  sold  by  any  person  under  any  power  of  sale  conferred 
upon  him  by  any  deed,  will,  power  of  attorney,  mortgage,  deed  of 
trust,  or  assignment  for  the  benefit  of  creditors,  the  person  making 
such  sale  must  pay  out  of  the  proceeds  of  sale  all  taxes  then  assessed 
upon  such  real  estate  and  such  sums  as  shall  be  necessary  to  redeem 
the  land,  if  it  has  been  .sold  for  taxes  and  such  redemption  is  practi- 
cable. 

1901,  c.  558,  s.  47. 

2858.  Lienor  may  pay  taxes  and  retain  lien  of.   Any  person 

having  a  lien  or  incumbriincc  of  any  kind  u])on  real  estate  may  pay 
the  taxes  due  by  the  owner  tiioreof  in  so  far  as  the  same  are  a  lien 
upon  such  real  estate,  and  the  amount  of  taxes  so  i)aid  .shall,  from  the 
time  of  i)aymcnt,  operate  as  a  lien  upon  such  real  estate  in  prefer- 
ence to  all  other  liens,  which  lien  may  be  enforced  by  action  in  the 
sn)U'rior  cdurt  in  term,      'i'hc  niniicy  so  paid   m;iy  also  lie  recovered 


2S5S     TAXES,  COLLECTIOX  OF— 7.   Gen.  Provisions.     Cb.   72 

by  action  for  moneys  paid  to  his  use  against  the  person  legally  lia- 
ble for  the  payment  of  such  taxes. 

Code,  3.  3700;  1901,  e.  558,  s.  46;  1879.  c.  71,  s.  55. 

II.     Life  Tenants  and  Cotenants. 

2859.  Life  tenant  failing  to  pay  taxes  forfeits  estate  and  liable 

for  damages.  Every  person  shall  be  liable  for  the  taxes  assessed  or 
charged  upon  the  property  or  estate,  real  or  personal,  of  which  he 
is  tenant  for  life.  If  any  tenant  for  life  of  real  estate  shall  suffer 
the  same  to  be  sold  for  taxes  by  reason  of  his  neglect  or  refusal  to 
pay  the  taxes  thereon,  and  shall  fail  to  redeem  the  same  within  one 
year  after  such  sale,  he  shall  thereby  forfeit  his  life  estate  to  the 
remainderman  or  reversioner.  The  remainderman  or  reversioner 
may  redeem  such  lands,  in  the  same  manner  that  is  provided  for  the 
redemption  of  other  lands.  Moreover,  such  remainderman  or  rever- 
sioner shall  have  the  right  to  recover  of  such  tenant  for  life  all  dam- 
ages sustained  by  reason  of  such  neglect  or  refusal  on  the  part  of 
such  tenant  for  life.  If  any  tenant  for  life  of  personal  property 
suffer  the  same  to  be  sold  for  taxes  by  reason  of  any  default  of  his, 
he  shall  be  liable  in  damages  to  the  remainderman  or  reversioner. 
Code,  ss.  3698,  3699;  1901,  c.  558,  s.  45;   1879,  c.  71,  ss.  53,  54. 

2860.  Cotenant  or  joint  owner  may  pay  total  tax  or  his  share; 
may  redeem;  remedies  for  expenditures  in  excess  of  his  share. 

Any  one  of  several  tenants  in  common,  or  joint  tenants  or  copart- 
ners shall  have  the  right  to  pay  his  share  of  the  taxes  assessed  or 
due  upon  the  real  estate  held  jointly  or  in  common,  or,  if  such 
estate  has  been  sold  for  taxes,  he  may  redeem  his  share  by  paying 
his  proportionate  part  of  the  amount  required  for  redeeming  the 
whole.  Where  he  has  paid  his  share  of  the  taxes  or  amoiint  required 
for  redemption  and  the  land  has  been  or  shall  be  divided  by  actual 
partition  the  share  set  apart  to  him  in  severalty  shall  be  free  from 
the  lien  of,  and  shall  not  be  liable  to  be  subjected  in  any  manner  to, 
the  payment  of  the  residue  of  taxes  assessed  upon  s\ich  property; 
but  such  residue  of  taxes  and  the  costs  and  penalties  incident  thereto 
shall  be  a  lien  upon  the  residue  of  such  real  estate,  which  residue 
shall  be  subjected  to  the  satisfaction  thereof;  and  when  he  has  paid 
his  share  of  the  taxes,  or  amount  necessary  to  redeem,  and  the 
real  estate  is  sold  under  judicial  proceedings  for  partition,  his  share 
of  the  proceeds  shall  not  be  diminished  by  disbursements  for  the 
residue  of  such  taxes  or  for  redeeming  the  property,  and  the  costs 
and  penalties  incident  thereto.  Any  such  part  owner  in  real  estate 
shall  have  the  right  to  pay  tlie  whole  of  the.  taxes  assessed  thereon 
and  all  costs  and  penalties  incident  to  such  taxes,  and  to  redeem  such 

801 


2SG0      TAXES,  COLLECTION  OF—//.  Life  Tenants.      Cli.   72 

real  estate  as  a  whole  when  it  has  been  sold  for  taxes,  and  all  sums 
by  him  so  paid  in  excess  of  his  share  of  such  taxes,  costs  and  penal- 
ties and  amounts  required  for  redemption,  shall  constitute  a  lien 
upon  the  shares  of  his  cotenants  or  associates,  payment  whereof, 
with  interest,  he  may  enforce  in  proceedings  for  partition,  actual  or 
by  sale,  or  in  any  other  appropriate  judicial  proceeding.  When  one 
tenant  in  common,  joint  tenant  or  copartner  shall  have  paid  his  pro- 
portionate part  of  tlie  taxes,  as  allowed  by  this  section,  before  a  sale 
for  taxes,  the  sheriff  shall  except  his  undivided  interest  from  the 
sale  and  in  the  certificate  of  sale  and  deed  for  the  property. 
1901,  c.  558,  ss.  13,  14.  47. 

III.     Infants'  and  Lunatics. 

2861.  Minors  and  persons  non  compos,  lands  of,  not  to  be  sold, 

personalty  may  be.  The  lands  of  a  minor,  lunatic  or  other  person 
non  compos  mentis,  shall  in  no  case  be  liable  to  be  sold  for  taxes, 
but  the  personal  property  of  such  persons  may  be  levied'  upon  and 
sold  for  all  taxes  due  upon  the  estates  of  siich  persons ;  and  their 
real  estate  shall  be  and  remain  subject  to  a  lien  for  all  such  taxes, 
with  interest  thereon  at  six  per  centum  per  annum,  from  the  time 
such  taxes  fall  due  until  paid. 
Code,  s.  3691. 

2862.  Guardians  and  other  fiduciaries  must  pay  taxes.  It  shall 

be  the  duty  of  every  guardian,  executor,  administrator  with  the  will 
annexed,  agent,  trustee,  receiver  or  other  fiduciary  in  whose  care  or 
control  any  property  or  estate,  real  or  personal,  may  be,  to  pay  the 
taxes  thereon  out  of  the  trust  funds  in  his  hands,  if  any  there  be; 
and  if  he  fail  so  to  do  he  shall  become  personally  liable  for  such 
taxes  and  such  liability  may  be  enforced  by  an  action  against  him  in 
the  name  of  the  sheriff.  If  he  permit  such  property  to  be  sold  by 
reason  of  his  negligence  to  pay  the  taxes  when  lie  has  funds  in 
hand,  he  shall  be  liable  to  his  ward,  principal,  or  cestui  que  trust 
for  all  actual  damages  incident  to  such  neglect.  This  section  shall 
not  have  the  effect  of  relieving  the  estates  held  in  trust  or  under  tlic 
control  of  fiduciaries  from  the  lien  of  such  taxes. 

Code,  ss.  3698,  1595;  1879,  c.  71,  s.  53;  R.  C,  c.  54,  s.  27;  1868-9,  c.  201,  s.  32; 
1762,  c.  69,  s.  14. 

IV.      Lien  of  Taxes. 

2863.  Personal  property.  Taxes  shall  not  be  a  lien  upon  per- 
sonal property,  exce]it  where  otherwise  provided  by  law,  but  from  a 
levy  thereon. 

Code,  s.  3682. 

862 


2864  TAXES,   COLLECTION   OF— ZF.  Lien.  Ch.  72 

2864.  Real  estate.  The  lien  of  the  state,  county  and  municipal 
taxes  levied  for  any  and  all  purposes  in  each  year  shall  attach  to  all 
real  estate  of  the  taxpayer  situated  within  the  county  or  other  munici- 
pality by  which  the  tax  list  is  placed  in  the  sheriff's  hands,  which 
lien  shall  attach  on  the  first  day  of  June  annually,  and  shall  con- 
tinue until  such  taxes,  with  any  penalty  and  costs  which  shall  accrue 
thereon,  shall  be  paid. 

Code,  s.  3682;  1879,  c.  71,  s.  26. 

2865.  Railroad  property.  The  taxes  upon  the  property  of  any 
and  all  railroads,  road  beds,  rights  of  way,  depots  and  side-tracks, 
now  constructed  or  hereafter  to  be  constructed,  are  hereby  made  a 
perpetual  lien  thereon,  commencing  from  the  first  day  of  June  in 
each  current  year,  and  shall  have  priority  over  all  claims  or  demands 
whatsoever  of  all  persons  or  bodies  corporate,  except  the  United 
States  and  this  state ;  and  the  above  described  property,  or  any  part 
thereof,  may  be  taken  and  held  for  payment  of  all  taxes  assessed 
against  such  railroad  company  in  the  several  counties  in  this  state. 

1903,  c.  251,  s.  88. 

2866.  Tax  lien  foreclosed  by  action;  parties  to.    A  lien  upon 

real  estate  for  taxes  or  assessments  due  thereon  may  be  enforced  by 
an  action  in  the  nature  of  an  action  to  foreclose  a  mortgage,  in 
which  action  the  court  shall  order  a  sale  of  such  real  estate,  or  so 
much  thereof  as  shall  be  necessary  for  that  purjDOse,  for  tlie  satis- 
faction of  the  amount  adjudged  to  be  due  on  siich  lien,  together 
with  interest,  penalties  and  costs  allowed  by  law,  and  the  costs  of 
such  action.  When  such  lien  is  in  favor  of  the  state  or  county,  or 
both,  such  action  shall  be  prosecuted  by  and  in  the  name  of  the 
county;  when  the  lien  is  in  favor  of  any  other  municipal  corpora- 
tion the  action  shall  be  prosecuted  by  and  in  the  name  of  such  cor- 
poration. When  such  lien  is  in  favor  of  any  private  individual  or 
private  corporation  holding  a  certificate  of  tax  sale  or  deed  under 
a  tax  sale,  whether  as  original  purchaser  at  a  tax  sale  or  as  assignee 
of  the  county  or  other  municipal  corporation  or  of  any  other  holder 
thereof,  such  action  shall  be  prosecuted  in  the  name  of  the  I'eal 
party  in  interest. 

1901,  c.  558,  ss.  42,  43. 

V.     Siieiuff's  Powers  and  Duties. 

2867.  Sheriff's  duties.  Whenever  any  taxes  shall  be  due  and 
\mpaid,  the  sherifi^,  who  by  law  is  required  to  collect  the  same,  shall 
immediately  proceed  to  collect  them  as  prescribed  by  this  chapter. 

Code,  s.  3686;  1872-3,  e.  115,  s.  28. 


2S6S  TAXES,  COLLECTIOX  OF— V.  Shcrijf.  Ch.  72 

2868.  Sureties  of  sheriff  may  collect,  when;  their  liabilities.  If 

any  sheriff  shall  die  during  the  time  appointed  for  collecting  taxes, 
his  sureties  on  his  tax  bond  may  collect  them,  and  for  that  pur- 
pose shall  have  all  power  and  means  for  collecting  the  same  from 
the  deputies  and  taxj^ayers  as  the  sheriff"  would  have  had,  and  shall 
be  subject  to  all  the  liabilities  of  the  sheriff'  for  collecting  and  set- 
tling the  taxes ;  and  the  state  and  municipal  authorities  shall  have 
the  same  remedies  against  such  siareties  as  might  have  been  had 
against  the  sheriff'  and  his  bondsmen,  if  he  had  lived. 

1903,  c.  251,  s.  102. 

2869.  Time  limited  for  collection  of  taxes.  The  sheriff  and,  iu 

case  of  his  death,  the  sureties  on  his  ta.x  bond,  shall  have  one  yeai* 
and  no  longer  from  the  day  prescribed  for  his  settlement  and  pay- 
ment of  the  state  taxes  within  which  to  finish  the  collection  of  all 
taxes ;  but  the  extension  of  time  for  collection  shall  not  extend  the 
time  of  his  settlement  of  the  taxes. 
1903,  c.  251,  s.  103. 

2870.  Attendance  in  townships  to  collect  taxes;  notice.  Except 

where  otherwise  jDrovided  by  law  the  sheriff  or  his  deputy  shall 
attend  at  the  courthouse  or  his  office  iu  the  county  town  during 
the  months  of  September  and  November  for  the  purpose  of  receiv- 
ing taxes.  He  shall  also  in  like  manner  attend  at  least  one  day 
during  .the  month  of  October  at  some  one  or  more  places  in  each 
township,  of  which  fifteen  days'  notice  shall  be  given  by  advertise- 
ment at  three  or  more  public  places  and  in  a  newspaper,  if  one  be 
published  in  the  county;  but  nothing  in  this  section  shall  be  con- 
strued to  prevent  the  sheriff'  from  levying  upon  and  selling  personal 
property  at  any  time  after  the  tax  lists  are  placed  in  his  hands,  if 
he  shall  believe  the  taxpayer  is  preparing  to  leave  the  county  or 
state. 

1903,  c.  251,  s.  80. 

2871.  Process  to  another  county  to  enforce  payment  of  taxes. 

If  any  person  liable  for  taxes  has  no  property  in  tlic  county  in 
which  such  taxes  are  due,  but  has  property  in  any  other  county, 
the  sheriff  may  make  and  certify  imder  his  hand  an  abstract  of 
the  taxes  due  by  such  person,  as  shown  by  the  tax  lists  in  his 
hands,  and  forward  tfie  same  to  the  sheriff  of  any  county  in  which 
property  of  such  taxpayer  may  be  found,  with  directions  to  collect 
such  taxes.  Such  abstract  .shall  have  the  force  and  effect  of  a  tax 
list  in  any  county  to  -which  it  is  sent,  and  the  sheriff  to  whom 
it  is  sent  shall  collect  the  taxes  in  the  same  manner  as  he  collects 
taxes  appearing  on  the  regular  tax  list  of  his  county,  and  shall 
pay  over  to   the   sheriff   from  whom   he   receives   such   abstract  the 

864 


2871  TAXES,  COLLECTIOX  OF— F.  Sheriff.  Ch.  72 

amount  collected,  less  his  lawful  commissions.  He  shall  make  re- 
turn of  his  proceedings  under  such  abstract  within  thirty  days  after 
its  receipt.  Such  abstract  or  a  copy  or  duplicate  thereof  may  be  sent 
for  collection  to  the  same  or  some  other  county  until  the  amoimt  due 
shall  be  collected. 

Ckide,  s.  3692;  1872-3,  c.  115,  s.  28. 

2872.  Inquiry  as  to  taxpayer  removed;  oath;  inspection  of 

insolvent  list,  it  shall  be  the  duty  of  every  sheriff  or  every  tax  col- 
lecting officer  of  any  county,  city  or  town,  whenever  he  is  informed 
that  a  taxpayer  has  removed  from  his  county,  city  or  town  without 
paying  the  taxes  listed  for  that  year,  to  make  diligent  inquiry  to 
what  county,  city  or  town  the  said  taxpayer  has  removed,  and  in 
the  settlement  of  the  sheriff  or  other  tax-collecting  officer  for  any 
county,  city  or  town  he  shall  state,  under  oath,  that  he  has  used  due 
diligence  and  made  faithful  inquiry  for  the  location  of  all  taxpayers 
who  have  removed  from  his  county,  city  or  town  owing  tax  for  said 
fiscal  year,  or  the  same  shall  be  charged  to  him  and  not  be  allowed 
in  his  insolvent  list ;  and  the  board  of  county  commissioners,  or  other 
officers  with  whom  said  sheriff  or  other  tax-collecting  officer  is  re- 
quired by  law  to  make  his  settlement,  shall  carefully  inspect  the 
insolvent  list  filed  for  said  fiscal  year,  and  if  said  sheriff  or  other 
tax-collecting  officer  has  not  complied  with  the  law  to  enforce  col- 
lection of  taxes  at  all  times  he  shall  be  charged  with  the  same. 
1905,  e.  355. 

2873.  Report  to  register  of  deeds;  register  certifies  tax  due.  It 

shall  be  the  duty  of  the  sheriff  or  other  tax-collecting  officer  of  any 
county,  city  or  town,  when  he  is  informed  that  any  taxpayer  has  re- 
moved from  his  county,  city  or  town  without  paying  his  taxes  listed 
for  that  year  and  has  no  property  in  the  county,  city  or  town,  or  no 
property  in  any  county  known  to  the  said  collecting  officer,  to  make 
a  report  of  the  same,  with  a  return  of  the  tax  receipt,  to  the  register 
of  deeds  of  his  county,  who  shall  make  out  a  certificate,  under  his 
hand  and  seal,  that  said  taxes  were  listed  for  that  year,  that  the 
same  are  due  and  reported  unpaid  by  the  collecting  officer  for  said 
county,  city  or  town. 
.1905,  c.  355,  s.  2. 

2874.  Certificate  sent  to  where  taxpayer  has  removed.  The 

sheriff'  or  other  collecting  officer  of  any  ccnnity,  city  or  to\vn  shall 
send  the  receipt,  with  said  certificate,  to  the  collecting  officer  of  the 
county,  city  or  tovm  to  which  said  taxpayer  has  removed,  and  the 
same  shall  be  a  tax  list  in  his  hands  for  the  collection  of  said  taxes. 
1905,  c.  355,  s.  3. 

Rev.  Vol.  T— 51  865 


2873  TAXES,  COLLECTIOX  OF— 1'.  Sheriff.  Ch.  72 

2875.  Duty  upon  receiving  certificate;  compensation.   The  tax 

collcc'tDr  to  whdiu  the  said  tax  rocc'i])t  has  hecn  sent  sliall  ]>roceed  to 
the  collection  of  said  taxes  according  to  the  rules  and  regulations  pro- 
vided for  the  collection  of  taxes  in  his  own  county,  city  or  town,  and 
shall  report  his  proceedings  to  the  ofHccr  from  whom  he  received  the 
said  receipt  within  sixty  days  thereof.  If  such  taxpayer  is  insolvent 
and  the  said  collecting  officer  can  not  collect  the  tax  as  provided  by  law 
in  his  county,  city  or  tovni,  he  shall  return  said  tax  receipt,  and  shall 
state  under  his  oath,  that  he  has  used  due  diligence  in  making  said  col- 
lection by  levy,  garnishment  or  otherwise,  that  said  tax])ayer  is  insol- 
vent and  same  can  not  be  collected ;  otherwise  he  shall  be  liable  on 
his  official  bond  for  said  tax,  to  be  collected  in  a  suit  in  any  court  in 
this  state  in  the  corporate  name  of  the  county,  city  or  town  to  which 
said  taxes  are  due.  The  collecting  officer  shall  be  allowed  a  compen- 
sation of  ten  per  centum  for  making  collection  of  said  taxes,  and  the 
register  of  deeds  shall  be  allowed  ten  cents  for  making  the  above  cer- 
tificate, to  be  paid  by  the  county,  city  or  town  to  which  the  said  taxes 
are  due. 

1005,  e.  355,  ss.  4-6. 

2876.  License  taxes,  levy  and  sale  to  collect.   Upon  failure 

of  any  person  to  pay  any  of  the  license  taxes  imposed  by  law,  when 
due,  the  sherifl:"  shall  have  the  same  powers  to  levy  upon  and  sell 
any  personal  or  real  estate  owned  by  such  person,  as  is  provided  in 
other  cases  for  the  collection  of  taxes. 
IflO.S.  c.  247,  s.  87. 

2877.  To  prosecute  delinquents  for  license  taxes,   it  shall  be 

the  duty  of  the  sherifl^  of  each  county  to  make  diligent  incjuiry  as 
to  whether  or  not  all  license  taxes  provided  for  by  law  shall  have 
been  paid  and,  upon  the  failure  of  any  person  to  pay  on  demand 
any  license  tax  for  which  he  is  liable  to  swear  out  a  warrant  before 
some  justice  of  the  peace  in  such  county,  and  the  jirocedure  thereon 
shall  be  as  in  other  criminal  actions:  Provided,  the  pa,^Tnent  of  the 
tax  and  all  costs  accrued  at  any  stage  of  the  action  shall  be  a  bar 
to  further  prosecution. 

ino:!,  c.  247,  s.  87. 

2878.  Not  liable  for  prosecutions  in  good  faith.   Xo  action  for 

damages  shall  be  prosecuted  or  maintained  by  any  person  against 
any  sherifl^  or  his  deputy  who  in  good  faith  has  arrested  or  who  has 
arrested  and  pro.secuted,  or  who  may  hereafter  arrest  or  who  may 
hereafter  arrest  and  prosecute  any  person  who  may  have  refused  or 
may  fail  or  refuse  to  jiay  to  such  .sherifl^  or  his  deimty  any  tax  or 
taxes  im])osed  by  any  act  of  the  general  assembly,  wild  her  such  act 
be  valid  or  invalid. 
1905,  p.  180. 

81  ji; 


2879  TAXES,  COLLECTION  OF— T'.  Sheriff.  Cli.  72 

2879.  Property  in  hands  of  receiver.  Whenever  taxes  are  duly 
assessed  against  any  corporation  having  chartered  rights,  or  doing 
business  in  this  state,  or  having  proj^erty  in  this  state,  or  against  any 
j)erson  resident  in  this  state  or  doing  business,  or  having  property 
in  this  state,  and  the  tax  list  is  in  the  hands  of  the  sheriff,  it  shall 
be  competent  for  such  sheriff  whenever  such  taxes,  whether  listed 
or  unlisted,  are  due  and  unpaid,"  to  levy  upon  and  sell  such  part  of 
the  property,  real  and  personal,  belonging  to  such  person  or  corpora- 
tion as  may  be  necessary  to  pay  such  taxes,  listed  or  unlisted,  whether 
the  property  of  b\\c\\  corporation  or  person  be  in  the  hands  of  a  re- 
ceiver duly  appointed  or  not;  and  in  such  cases  it  shall  not  be  neces- 
sary for  such  officer  to  apply  to  and  obtain  from  the  court  appoint- 
ing such  receiver,  or  having  jurisdiction  of  the  property  or  of  the 
receiver,  an  order  for  the  payment  of  such  taxes,  but  the  same  may 
be  collected  as  if  the  property  was  not  in  the  hands  of  a  receiver  or 
in  the  custody  of  the  law.  The  powers  conferred  by  this  section 
upon  the  sheriff  shall  not  have  the  effect  to  relieve  the  receiver  from 
liis  duties  and  liabilities  to  pay  taxes  as  provided  elsewhere  in  this 
chapter. 

Code,  ss.  600.  700;   1870,  c.  2451,  ss.   1-4. 

2880.  Garnishee  and  attachment  proceedings.  If  any  poll  tax 

or  other  tax  shall  not  be  paid  within  sixty  days  after  the  same  shall 
be  demandable,  it  shall  be  the  duty  of  the  sheriff,  if  he  can  find  no 
property  of  the  person  liable  sufficient  to  satisfy  the  same,  to  attach 
any  debt  or  other  property  incapable  of  manual  delivery,  due  or 
belonging  to  the  person  liable,  or  that  may  become  due  before  the 
expiration  of  the  calendar  year,  and  the  person  owing  such  debt  or 
having  such  property  in  possession  shall  be  liable  for  such  tax.  It 
shall  be  the  duty  of  every  person,  on  demand  or  request  made,  to  give 
to  the  sheriff'  a  list  giving  the  names  of  all  persons  employed  hy  him 
who  are  liable  for  tax.  For  the  purpose  of  carrying  into  effect  the 
provisions  of  this  section,  the  following  form  shall  be  used  as  an 
attachment,  viz: 

To  A.  B :    Take  notice,  that  this  is  to  attach  any  debt  that  is  now 

due  or  may  become  due  to  C.  D.,  a  delinquent  in  his  poll  (or  property)  tax  for 
the  year  of  nineteen  hundred  and   .  .  .  .,  and  you  are  hereby  summoned  to  appear 

before  E.  F.,  an  acting  justice  of  the  peace  for county,  and  disclose  any 

indebtedness  which  is  or  may  be  due  said  delinquent  by  you  during  the  present 
calendar  year,  and  to  show  cause  why  judgment  should  not  be  rendered  against 

you  for  said  delinquent  tax  and  costs  of  tliis  proceeding day  of    , 

100.  .  ,  E.  F.,  Justice  of  "the  Peace. 

For  serving  notice  the  sheriff  shall  receive  twenty-five  cents,  and 
if  judgment  is  rendered,  the  justice  shall  receive  twenty-five  cents 
as  costs.  The  justice  shall  hear  and  determine  the  matter  as  in 
other  civil  actions,  and,  if  he  find  that  the  garnishee  owes  the  delin- 


2880  TAXES,  COLLECTION  OF— 1'.  Sheriff.  Ch.  72 

quent  any  sum  due  or  to  become  due  during  the  calendar  year,  or 
has  property  or  effects  belonging  to  such  delinquent,  he  shall  give 
judgment  against  the  garnishee  for  the  taxes  due  hj  the  delinquent 
and  for  costs,  or  for  so  much  of  such  taxes  and  costs  as  the  facts 
will  warrant.  If  the  amount  of  the  tax  be  beyond  the  jurisdiction  of 
the  court  of  a  justice  of  the  peace,  the  sheriff'  may  proceed  by  action 
and  attachment  in  the  superior  coitrt.  All  actions  and  proceedings 
instituted  under  this  section  shall  be  in  the  name  of  the  sheriff.  In 
no  case  shall  the  garnishee  be  adjudged  to  pay  a  greater  sum  than 
his  indebtedness  to  the  taxpayer  or  the  value  of  the  property  of  such 
taxpayer  in  his  hands  or  under  his  control. 

Code,  s.  3675;  1872-3,  c.  144,  s.  2;  1881,  c.  IIG,  ss.  2,  3;  1903,  c.  251,  s.  11. 

2881.  Corporation  failing  to  pay  taxes;  garnishment;  penalty. 

Whenever  any  cori^ciration  doing  business  in  this  state  shall  be 
delinquent  in  the  j)ayment  of  any  taxes  assessed  or  charged  against 
it,  the  sheriff  may  notify  any  agent  or  officer  of  such  corporation, 
or  any  person  indebted  thereto,  of  the  amount  of  taxes  due  and  un- 
paid by  such  corporation,  and  thereupon  such  agent,  officer  or  debtor 
shall  pay  to  such  sheriff  or  tax  collector  the  amount  he  has  in  hand 
for,  or  of  his  indebtedness  to,  such  corporation,  or  so  much  thereof 
as  will  satisfy  such  taxes  and  costs.  The  amount  so  paid  shall  be 
a  discharge  pro  tanto  of  such  agent,  or  officer,  or  debtor  from  his  lia- 
bility to  such  corjooration.  Any  such  agent,  officer  or  debtor  who 
shall  fail  to  pay  over  to  the  sheriff  as  required  by  this  section  shall 
be  liable  for  such  money  in  civil  action  to  be  brought  by  such  sheriff 
in  his  name  and  official  capacity;  and  such  officer  or  agent  of  such 
corporation  shall  also  be  liable  to  criminal  prosecution  as  is  pro- 
vided in  the  chapter  on  Crimes.  If  any  corporation  be  delinquent 
for  six  months  in  the  payment  of  the  taxes  lawfully  assessed  and 
charged  upon  or  against  it  or  its  property,  its  charter  shall  be  for- 
feited and  a  receiver  shall  be  appointed  to  wind  up  its  affairs  in  an 
action  to  be  prosecuted  by  the  attornej'-general  in  the  name  of  the 
state. 

1901,  c.  558,  s.  29. 

Note.     See  Crimes. 

2882.  When  sheriffs  to  settle  with  state  treasurer.  The  sheriffs 

or  tax  collectors  of  the  several  counties  shall  settle  with  the  state 
treasurer  the  amount  of  taxes  due  from  their  respective  counties  on 
or  before  the  second  Monday  in  January  of  each  and  every  year: 
Provided,  that  the  sheriff  of  Dare  county  shall  have  until  the  iirst  day 
of  April  in  which  to  settle  state  taxes,  the  sheriffs  of  Clierokee,  Clay, 
Graham,  Jackson,  Macon,  Jfitchell,  liuthcrford  and  Swain  counties 
shall  have  until  the  first  day  of  April  in  which  to  settle  state  taxes, 


2882  TAXES,  COLLECTION  OE— T.  Sheriff.  Ch.  72 

and  the  sheriffs  of  Alexander,  Buncombe,  Caswell,  Davie,  Davidson, 
Eorsyth,  Guilford,  Madison,  Person,  Eockingham,  Rowan,  Stokes, 
Surry,  Vance,  Yadkin  and  Yancey  counties  shall  have  until  the  first 
day  of  May  of  each  year. 

1883,  c.  150;  1887,  c.  78;  1891,  c.  62;  1895,  ce.  29,  3.33;  1893,  cc.  25,  30,  504; 
1903,  cc.  90,  129;  1905,  cc.  11,  192,  241,  368,  627. 

2883.  Fees  of  sheriff  and  expenses  of  sale,  etc.  The  sheriff 

shall  be  entitled  to  lifty  cents  for  each  actual  levy  and  sale  of  per- 
sonalty and  fifteen  cents  for  each  advertisement  of  such  sale,  but  in 
no  case  shall  such  sums  be  collected  where  no  levy  or  sale  or  adver- 
tisement is  made.  For  advertising  lands  for  sale  for  taxes,  twenty 
cents  for  each  parcel  advertised.  For  making  each  certificate  of  the 
sale  and  purchase  of  real  estate,  and  for  each  deed  for  real  estate, 
fifty  cents.  For  entering  memorandum  of  redemption  on  sale  book, 
twenty-five  cents.  The  coimty  commissioners  shall  allow  him  in 
settlement  such  other  sums  as  he  has  actually  expended  which  were 
necessary  for  the  due  execution  of  his  duties  under  this  chapter. 
1903,  c.  251,  ss.  80,  97;  1901,  c.  558,  ss.  10,  11. 

VI.     Sale  of  Peksonalty. 

2884.  To  be  first  exhausted.  The  personal  property  of  a  tax- 
payer shall  be  levied  upon  and  shall  be  sold  for  the  satisfaction  of 
his  taxes  before  resorting  to  his  real  estate,  if  sufficient  personalty 
subject  to  levy  and  sale  can  be  found  in  the  county  of  the  sheriff 
having  the  tax  list  in  hand.  Upon  the  service  of  the  notice  required 
by  this  chapter,  that  his  real  estate  is  to  be  sold  for  taxes,  it  shall  be 
incumbent  upon  the  taxpayer  to  point  out  to  the  sheriff  personalty 
out  of  which  the  taxes  may  be  made  or  else  such  taxpayer  shall  for- 
feit his  rights  under  this  section. 

Code,  s.  3688;  1901,  c.  558,  s.  1. 

2885.  As  under  execution.  The  seizure  and  sale  of  personal 
]iro]icrty  fur  taxes  shall  be  governed  by  the  laws  regiilating  levy 
and  sale  under  execution. 

Code,  s.  3688;  1901,  c.  558,  s.  1. 

2886.  What  subject  to.  All  the  personal  property  subject  to  tax- 
ation shall  be  liable  to  be  seized  and  sold  for  taxes,  and  the  personal 
property  of  any  deceased  person  shall  be  liable  in  the  hands  of  any 
executor  or  administrator  for  any  tax  due  by  any  testator  or  intes- 
tate ;  and  all  transfers  of  personal  property  by  any  taxpayer,  made 
after  bis  taxes  are  due,  by  way  of  gift,  or  mortgage,  or  deed 
of  trust,  or  of  assignment  for  creditors,  or  bequest  by  will,  or  in 
any  other  way  or  for  any  other  purpose  than  a  bona  fide  sale  for 


2SSG   TAXES,  COLLECTION  OF— TY.  Sale  FersonaUy.    Ch.   72 

value,  in  the  ordinary  course  of  dealing,  shall  be  null  and  void  as  to 
such  taxes  and  shall  have  no  effect  upon  the  rights,  powers  and  du- 
ties of  the  sheriff  to  levy  upon  and  sell  such  property  for  such  taxes : 
Provided,  such  levy  be  made  within  sixty  days  after  such  transfer. 
Code,  s.  3682. 

VII.     Sale  of  Realty. 

2887.  When  liable  to.  If  personal  property  of  any  taxpayer, 
sufficient  for  the  satisfaction  of  his  taxes  and  subject  to  levy,  is  not 
to  be  found  in  the  county  of  the  sheriff  having  the  tax  list  in  hand 
for  collection,  it  shall  be  the  duty  of  such  sheriff'  to  sell  the  real 
estate  of  such  taxpayer,  if  delinquent  in  the  payment  of  his  taxes, 
under  the  directions  set  forth  in  this  chapter. 

Code,  ss.  3688,  3691;  1901,  c.  588,  s.  1. 

2888.  Time  and  place  for.  The  sale  of  real  estate  for  taxes  shall, 
unless  otherwise  expressly  provided  by  law,  be  made  at  the  court- 
house door  of  the  county,  between  the  hours  of  ten  o'clock  in  the 
forenoon  and  four  o'clock  in  the  afternoon  of  the  first  Monday  in 
May  of  each  year,  but,  if  necessary,  the  sale  may  be  continued  from 
day  to  day  until  all  the  property  advertised  shall  be  disposed  of. 
If,  for  any  reason,  the  sale  is  not  made  on  the  day  prescribed^ 
another  day  may  be  set  by  the  county  commissioners  at  a  regular 
meeting,  and  the  sale  shall  be  had  on  such  day  after  advertisement 
and  notice  as  required  by  this  chapter. 

Code,  s.  459;  1901,  c.  558,  s.  3. 

2889.  Notice  to  be  given  delinquent.  In  addition  to  the  adver- 
tisement required  by  the  next  succeeding  section,  the  sheriff  shall, 
at  least  twenty  days  before  a  sale  of  real  estate  for  taxes,  serve 
upon  each  delinquent  taxp)ayer  Avhosc  real  estate  is  advertised  for 
sale,  if  such  person  can  be  found  in  the  county,  a  copy  of  so  much  of 
such  advertisement  of  sale  as  relates  to  him  and  his  real  estate.  If 
such  delinquent  can  not  be  found  in  the  county,  such  notice  shall  be 
mailed  to  him,  if  his  postofiice  can  be  ascertained  by  the  exercise  of 
reasonable  diligence,  and  personal  service  shall  also  be  made  upon 
his  agent,  if  he  have  such  agent  in  the  county  to  the  knowledge  of 
the  sheriff,  or  upon  some  person  of  suitable  age  and  discretion  in 
possession  of  or  residing  upon  the  land  or  some  portion  thereof. 

Code,  ss.  457,  3091  ;   1901,  c.  558,  s.  3. 

2890.  Advertisement.  Before  any  real  estate  shall  be  sold  for 
taxes  the  sheriff  shall  give  public  notice  of  the  time,  place  and  cause 
of  such  sale  by  advertisement  at  the  courthouse  door  and  in  some 
newspaper  pulilished  in  the  county,  if  ;niv  tlicrc  be,  for  four  succes- 


2890     TAXES,  COLLECTION  OF— 7//.  Sale  Realty.      Cli.  72 

sive  weeks  inmiediately  preceding  the  day  of  sale.  If  there  be  no 
newspaper  published  in  the  county,  such  advertisement  must  be 
posted  for  four  weeks  at  some  public  place  in  each  township  of 
the  county,  except  that  in  which  the  courthouse  is  located,  in 
addition  to  posting  at  the  courthouse  door.  Such  advertisement 
must  contain  a  notice  that  all  the  lands  whose  owners  are  delin- 
quent in  payment  of  their  taxes  of  the  preceding  year  will  be  sold, 
and  shall  set  out  a  list  of  the  lands  to  be  sold  and  the  amount  of  taxes, 
expenses  and  costs  due  by  each  delinquent  owner,  giving  his  name. 
Code,  s.  3691;  1901,  c.  558,  s.  3. 

2891.  How  made.  All  sales  of  real  estate  for  taxes  shall  be  at 
public  outcry  to  the  highest  bidder.  All  the  advertised  real  estate 
of  each  delinquent  shall  be  sold  at  the  same  time  as  one  body,  and 
no  bid  therefor  shall  be  received  unless  sufficient  in  amount  to  dis- 
charge all  the  taxes  due  by  the  delinquent,  together  with  all  costs 
and  expenses  of  sale.  If  no  such  bid  be  received,  the  county,  city 
or  to^^^l,  as  the  case  may  be,  shall  be  deemed  the  purchaser  and  the 
sheriff  shall  so  record  it  on  his  sales  book.  If  any  bidder  fail  to  pay 
the  amount  of  his  bid  immediately  upon  his  being  declared  the  pur- 
chaser the  sheriff  may  resell  at  once  if  he  deem  it  proper  to  do  so. 

Code,  ss.  3693.  3694  :  1901,  e.  558,  ss.  37,  4. 

2892.  Sales  book  to  be  kept;  copy  filed  with  register  of  deeds; 

copy  evidence  of  regularity,  etc.  The  sheriff  shall  keep  a  sales  book 
in  which  shall  be  entered  and  shown  what  real  estate  he  sells  for  ■ 
taxes,  the  name  of  the  delinquent  in  whose  name  such  real  estate 
was  listed,  the  amoiint  of  the  taxes,  costs  and  expenses  for  which  it 
was  sold  and  the  name  of  the  purchaser  and  amount  of  his  bid,  where 
there  was  a  purchaser  other  than  the  county,  city  or  town,  as  the 
case  may  be.  If  the  county,  city,  or  town  become  the  purchaser  under 
the  provisions  of  law^,  he  shall  record  the  fact  in  such  book.  A  copy 
of  this  book,  certified  by  the  sheriff,  shall  be  filed  with  the  clerk  of 
the  county  connnissioners,  or  the  city  or  town  aiithorities,  as  the 
case  may  be,  within  one  year  after  the  sale.  Such  certified  copy 
shall  be  prima  facie  evidence  of  the  truth  of  the  matters  therein 
contained,  and  of  the  regularity  of  the  sales  therein  recorded.  When 
the  sheriff  makes  a  deed  to  any  land  sold  for  taxes  he  shall  make 
an  entry  to  that  effect  in  the  sales  book  opposite  the  descrijition  of  the 
land  conveyed. 

1901,  c.  558,  ss.  5,  10. 

2893.  Records  sufficient  proof  of  sale.  The  books  and  records 
belonging  to  the  offices  of  the  register  or  sheriff,  or  copies  thereof 
properly  certified,  shall  be  deemed  sufficient  evidence  to  prove  the 

871 


2893      TAXES,  COLLECTION  OF— VII.  Sale  Eealty.      Ch.  72 

sale  of  any  real  property  for  taxes,  the  redemption  thereof  or  the 
payment  of  the  taxes  thereon. 

1901,  c.  55S,  s.  20. 

2894.  Listed  in  name  of  wrong  person.  No  sale  of  real  es- 
tate shall  be  void  because  such  real  estate  was  charged  in  the  name 
of  any  other  jjerson  than  the  rightful  owner,  if  such  real  estate  be 
in  other  respects  sufficiently  described.  But  no  sale  of  property 
so  listed  in  the  name  of  the  wrong  person  shall  be  held  valid  where 
the  rightful  owner  has  listed  the  same  and  paid  the  taxes  thereon. 

1901,  c.  558,  s.  25. 

2895.  Irregularities  immaterial.  No  irregularities  in  making  as- 
sessments or  in  making  the  returns  thereof  in  the  equalization  of 
property  as  provided  by  law,  or  in  any  other  proceeding  or  require- 
ment of  law,  shall  invalidate  the  sale  of  any  real  estate  Avhen  sold 
by  the  sheriff  for  delinquent  taxes,  nor  in  any  manner  invalidate  the 
tax  levied  on  any  property  or  charged  against  any  person. 

1901,  c.  558,  s.  27. 

2896.  Irregularities  defined.   The  following  defects,  omissions 

and  circumstances  occurring  in  the  assessment  of  any  property  for 
taxation,  or  in  the  le^'y  of  taxes,  or  elsewhere  in  the  course  of  the 
proceedings,  up  to  and  including  the  execution  and  delivery  of  the 
deed  for  property  sold  for  taxes,  shall  be  taken  and  deemed  to  be 
mere  irregularities  within  the  meaning  of  the  next  preceding  sec- 
tion: The  failure  of  tlie  assessors  to  take  or  subscribe  an  oath  or 
attach  one  to  an  assessment  roll ;  the  omission  of  a  dollar  mark  or 
other  designation  descriptive  of  the  value  of  figiires  used  to  denote 
an  amount  assessed,  levied  or  charged  against  any  property  or  the 
valuation  of  any  property  upon  any  record ;  the  failure  to  make  or 
serve  any  notice  mentioned  in  this  chapter ;  the  failure  or  neglect  of 
the  sheriff  to  offer  any  real  estate  for  sale  for  delinquent  taxes  thereon 
at  the  time  mentioned  in  the  advertisement  or  notice  of  such  sale ; 
failure  of  the  sheriff'  to  adjourn  such  sale  from  day  to  day,  or  any 
irregularity  or  informality  in  such  adjournment;  any  irregularity 
or  informality  in  the  manner  or  order  in  which  real  estate  may  be 
offered  for  sale ;  the  failure  to  assess  any  property  for  taxes  or  to 
levy  any  tax  within  the  time  provided  by  law ;  any  irregularity, 
informality  or  omission  in  any  such  assessment  or  levy;  any  defect 
in  the  description,  upon  any  assessment  book,  tax  list,  sales  book, 
or  otiier  record,  of  real  or  personal  property  a.ssessed  for  taxation, 
or  \i])on  which  any  taxes  are  levied,  or  wliicli  may  be  .sold  for  taxes; 
provided  such  description  be  sufficiently  definite  to  enable  the  sheriff, 
or  any  person  inten^stod,  to  determine  what  projierty  is  meant  or 
intended  by  tlic  description,  and  in  such  case  a  defoctive  or  indefi- 


2896      TAXES,  COLLECTION  OF— T77.  Sale  BeaUij.      Cb.  72 

nite  description,  on  any  book,  list  or'  record,  or  in  any  notice  or 
advertisement,  may  be  made  definite  by  the  sheriff  in  the  deed  by 
which  he  may  convey  such  property,  if  sold  for  taxes,  by  inserting 
in  such  deed  a  proper  and  definite  description  of  the  property  so 
defectively  or  indefinitely  described ;  any  other  irregularity,  infor- 
mality or  omission  or  neglect  on  the  part  of  any  person  or  in  any 
proceedings,  whether  mentioned  in  this  section  or  not;  the  omission 
of  a  seal  to  the  sheriff's  deed ;  the  neglect  or  omission  to  tax  or  assess 
for  taxation  any  person  or  property ;  the  overtaxation  of  persons  or 
property  liable  to  be  taxed. 

1901,  e.  558,  s.  28. 

2897.  De  facto  officers,  acts  of,  valid,  in  all  actions,  proceed- 
ings and  controversies  involving  the  question  of  title  to  real  property 
held  binder  and  by  virtue  of  a  sheriff's  certificate  of  sale  for  taxes 
or  tax  deed,  and  all  acts  of  assessors,  sheriffs,  clerks,  supervisors,  com- 
missioners and  other  officers  de  facto,  shall  be  deemed  and  construed 
to  be  of  the  same  validity  as  acts  of  officers  de  jure. 

inoi,  c.  558,  s.  24. 

2898.  Cancellation  of  void  sales  and  deeds.  Whenever  it  shall 

be  made  to  appear  to  the  satisfaction  of  the  sheriff,  either  before  the 
execution  of  a  deed  for  real  property  sold  for  taxes,  or  upon  the 
deed  being  returned  by  the  purchaser,  that  any  real  estate  was  sold 
which  was  not  subject  to  taxation  or  upon  which  the  taxes  had  been 
paid  previous  to  the  sale,  he  shall  make  an  entry  opposite  such  tract 
or  lot  on  the  record  of  same  that  the  same  was  erroneously  sold,  and 
such  entry  shall  be  evidence  of  the  fact  therein  stated ;  and  in  such 
cases  the  purchase-money  shall  be  refunded  to  the  purchaser  as 
pi'ovided  by  this  chaj^ter.  If  such  deed  has  been  registered,  the  sher- 
iff may  nullify  the  same  by  writing  on  the  margin  of  the  register's 
book,  at  the  page  on  which  said  deed  appears,  that  the  same  is  can- 
celled pursuant  to  this  section  and  for  the  causes  herein  set  forth, 
inoi,  c.  558,  s.  22. 

VIII.     Ceetificate  of  Sale. 

2899.  Sheriff  issues  to  purchaser;  form.  The  sheriff  shall  give 

to  the  ]iurehaser  of  real  estate  sold  for  taxes  a  written  certificate, 
under  his  oflicial  signature,  to  the  effect  and  in  the  form  following: 

North  Carolina County. 

I,    .  .  .  .,  slierifT  of  the  county  of   ,  do  hereby  certify  that  the  follo\vin« 

described  real  estate  in  said  county  and  state.  to-\vit  (describing  the  same  and 
stating  in  whose  name  it  was  listed  on  the  tax  lists),  was,  on  the  ....  day  of 
,  190.  .,  duly  sold  by  me.  in  the  manner  provided  by  law,  for  the  delin- 
quent  taxes   of    for  the   year    190...    amounting   to    dollars, 

including  interest  and  penalty  thereon  and  the  cost  allowed  by  law,  when  and 

S73 


2899    TAXES,  COLLECTION  OF— T7//.   Cert,  of  Sate.    Cli.   72 

where   (name  of  the  purchaser)  purchased  said  real  estate  at  the  price  of 

dollars,  he  being  the  highest  and  best  bidder  for  the  same.  And  I  further  certify 
that  unless   redemption   is   made  of   said  estate  in   the  manner   provided  by   law, 

the  said ,  his  heirs  or  assigns,  will  be  entitled  to  a  deed  in  fee  therefor  on 

and  after  the  ....  day  of ,  A.  D.  100.  .,  on  surrender  of  this  certificate. 

In  witness  wliereof,   1  have  hereunto  set  my  hand,  this    ....    daj'  of   

A.  D.  190.  . 

SherilT. 

1901,  c.  558,  s.  9. 

2900.  Separate  certificates  required,  wtien.  The  real  estate  of 

each  delinquent  shall  be  inserted  in  a  separate  certificate  notwith- 
standing the  fact  that  the  same  person  may  have  jnirchased  the  real 
estate  of  several  delinquents.  But  this  shall  not  apply  to  lands  held 
in  cotenancy  or  joint  tenancy.  Stich  lands  may  be  inserted  in  one 
certificate,  no  matter  how  many  delinquents  may  be  interested 
therein. 

1901,  c.  558,  s.  9. 

2901.  Certificate  when  county,  city,  etc.,  is  purchaser;  right 

of  corporation  to  transfer.  When  the  county  or  other  munici- 
pal corporation  becomes  the  purchaser,  under  the  provisions  of  this 
chapter,  of  any  real  estate  sold  for  taxes,  the  sheriff  shall  issue  a 
certificate  of  purchase  in  the  name  of  such  corporation  substantially 
in  the  form  provided  by  the  two  preceding  sections.  Such  certifi- 
cates shall  remain  in  the  custody  of  the  sheriff,  and  at  any  time  the 
county  commissioners  may  assigni  such  certificates  to  any  person 
wishing  to  buy,  for  the  amount  expressed  on  the  face  of  the  cer- 
tificate and  interest  thereon  at  the  rate  per  centum  M-liich  the  taxes 
were  drawing  at  the  time  of  the  purchase,  or  for  the  total  amount  of 
all  tax  on  such  real  estate.  Such  assignment  may  be  made  by  the  en- 
dorsement of  the  name  of  the  county  by  the  chainn.tn  of  the  board 
of  county  commissioners,  and  such  endorsement  shall  be  made  when 
ordered  by  the  county  commissioners.  The  commissioners  or  other 
governing  body  of  the  municipal  corporation  other  than  a  county 
shall  have  the  same  right  of  transfer  as  is  above  conferred,  such 
transfer  to  be  made  by  the  mayor  or  trea.surer  of  sucli  corporation 
and  in  its  name. 

1901,  0.  558,  ss.  37,  39. 

2902.  Certificate  presumptive  evidence  of  validity.  The  sher- 
iff's ci-rtificate  of  sale  and  purchase  sliail  be  presnui]iti\-e  evidence 
of  the  regularity  of  all  )irior  proceedings  incident  to  such  sale  and 
purchase  and  of  the  due  performance  of  all  things  essential  to  the 
validity  thereof. 

■1901,  c.  558,  s.  9. 


2903       TAXES,  COLLECTION  OF— IX.  Deeds,  etc.       Ch.  72 
IX.     Deeds  Undee  Tax  Sale. 

2903.  Notice  of  purchase,  what  to  contain;  how  published; 

when  and  on  whom  served.  Xo  pmeliaser  or  assignee  of  such  jiur- 
chaser  of  any  real  estate,  at  any  sale  for  taxes  or  special  assessments 
due  either  to  the  state  or  any  county  or  any  incorporated  town  or 
city  within  the  same,  or  at  any  sale  for  taxes  authorized  by  the  law 
of  this  state,  shall  be  entitled  to  a  deed  for  the  real  estate  so  pur- 
chased until  the  following  conditions  have  been  complied  with,  to- 
^vit:  Such  purchaser  or  assignee  shall  serve  or  cause  to  be  served  a 
written  or  printed,  or  partly  written  and  partly  printed,  notice  of 
such  purchase  on  every  person  in  actual  possession  or  occupancy  of 
such  land  or  lot,  and  also  on  the  person  in  whose  name  the  same  was 
taxed  or  specially  assessed,  if  upon  diligent  inquiry  he  can  be  found 
in  the  county,  and  also  upon  any  person,  firm  or  corporation  having 
a  mortgage  or  deed  of  trust  upon  said  land  or  lots  recorded  in  the 
county  where  the  land  is  situated,  if  upon  diligent  inquiry  such  per- 
son, firm  or  corporation  can  be  found,  and  if  he,  they  or  it  can  not 
upon  diligent  inqiiiry  be  fovmd,  then  publication  shall- be  made  as 
hereinafter  provided,  at  least  three  months  before  the  expiration  of  the 
time  of  redemption,  in  which  notice  he  shall  state  when  he  purchased 
the  land  or  lot,  a  description  thereof,  in  whose  name  it  was  taxed,  for 
wliat  _year  taxed  or  specially  assessed,  and  when  the  time  of  redemp- 
tion will  expire.  If  no  person  is  in  actual  possession  or  occupancy 
of  such  land  or  lot,  and  the  person  in  whose  name  it  was  taxed  or 
assessed  can  not  upon  diligent  inqiairy  be  foTind  in  the  county,  then 
such  person  or  his  assignee  shall  publish  such  notice  in  some  news- 
paper published  in  such  county,  and  if  no  newspaper  is  published  in 
the  county,  then  the  newspaper  that  is  published  in  this  state  near- 
est the  county-seat  of  the  county  in  wliich  such  real  estate  is  situ- 
ated, Avhich  notice  shall  be  inserted  three  times,  the  first  not  more 
tlian  five  months  and  the  last  time  not  less  than  three  months  be- 
fore the  time  of  redem])tion  shall  expire.  The  fee  for  such  publi- 
cation in  a  newspaper  shall  not  exceed  three  dollars  for  each  tract  so 
advertised. 

1901,  c.  558,  ss.  15,  17 ;  1905,  c.  431. 

2904.  Purchaser  to  make  affidavit  before  receiving;  what  affi- 
davit to  contain.  Every  person  who  Juis  i)urchase(l  any  himl  at  a 
tax  sale,  or  the  assignee  of  such  person,  by  liimself  or  agent,  before 
he  shall  be  entitled  to  a  deed  for  such  land,  shall  make  an  aflidavit 
of  his  having  complied  with  the  conditions  of  this  chapter  as  to 
giving  notice  of  such  purchase,  stating  particularly  the  facts  relied 
on  as  such  compliance,  which  affidavit  shall  be  presented  to  the  per- 
son authorized  by  law  to  execute  such  tax  deed,  to  be  by  such  officer 


290i        TAXES,  COLLECTION  OF— ZA'.  Deeds,  etc.        Ch.  72 

delivered  to  the  register  of  deeds  and  entered  on  the  record  of  his 
(itiice  and  carefully  preserved  among  the  files  of  his  office,  which 
record  or  affidavit  shall  be  prima  facie  evidence  that  such  notice  had 
been  given.  The  register  shall  be  entitled  to  the  same  fee  tlierefor 
as  is  allowed  by  law  for  registering  deeds.  The  conditions  of  this 
and  the  next  preceding  section  shall  not  be  required  when  any  county 
or  incorporated  Xowa  or  city  shall  become  the  purchaser. 

1901,  p.  558,  s.  10. 

2905.  Deed  when  and  by  whom  to  be  made.  At  any  time  after 

one  year,  and  \\ithin  two  years,  from  the  day  of  sale  of  any  real 
estate  for  taxes  and  upon  demand  of  the  purchaser  and  his  pro- 
duction of  the  certificate  of  such  sale  and  purchase,  the  sheriff  shall, 
if  the  real  estate  has  not  been  previously  redeemed,  as  allowed  by  law, 
execute  a  conveyance  to  the  purchaser,  his  heirs  or  assigns,  for  the 
real  estate  described  in  the  certificate.  If  the  certificate  be  lost,  such 
conveyance  may  be  made  by  the  sheriff  upon  his  being  satisfied  of 
such  loss.  When  the  sheriff  has  made  due  sale  of  land  for  taxes  and 
dies  before  executing  a  deed  thereto,  or  when  a  sheriff  dies,  and,  in 
collecting  taxes  due  on  lists  that  were  in  his  hands  for  collection, 
his  executor  or  administrator,  or  anyone  acting  for  the  sureties  on 
his  bond,  shall  have  made  sale  for  taxes  as  contemplated  by  law  in 
all  such  cases,  his  successors  in  office  shall  execute  a  deed  or  convey- 
ance to  the  person  entitled  to  the  same.  If  the  county  or  other  mu- 
nicipal corporation  be  the  purchaser  or  holder  of  the  certificate,  the 
sheriff  shall  execute  such  deed  upon  demand  of  the  county  commis- 
sioners or  governing  board  of  such  otlier  municipal  corporation. 

1901,  c.  558.  s,  18. 

Note.     See  also  ss.  950,  951. 

2906.  Form.  Deeds  made  by  the  sheriff'  for  real  estate  sold  for 
taxes  shall  be  substantially  in  the  following  form : 

North  Carolina,    County. 

Whereas,  at  a  sale  of  real  estate  for  the  nonpayment  of  taxes,  made  in  the 

county  of    ,  on  the    ....   day  of    ,   190...  the   following-described 

real  estate  which  was  listed  in  the  name  of   ,  in   township  of 

said  county,  was  sold,  to-wit.  (Hero  place  description  of  real  estate  conveyed)  ; 
and. 

Whereas,  The  same  not  liaving  been  redeemed  from  such  sale  and  it  appearing 
that  the  holder  of  the  certificate  of  purchase  of  said  real  estate  has  complied  with 
the  laws  of  North  Carolina  necessary  to  entitle   (insert  the  name  of  grantee)   to 

a  deed  of  said  real  estate;  now,  therefore,  I,   ,  sheriff  of  said  coiinty  of 

,  in  consideration  of  the  premises  and  by  virtue  of  the  statutes  of  North 

Carolina  in  such  cases  provided,  do  hereby  grant  and  convey  unto in  fee 

simple  the  said  real  estate  hereinbefore  described,  subject,  however,  to  any  right 
of  redemption  provided  by  law. 

Oivcn  under  my  hand  and  seal,  this  ....  day  of ,  A.  D.  190.    . 

,  Sheriff.      (Seal.) 

1901,  p.  558,  s.  19. 

876 


2907        TAXES,  COLLECTION  OF— /A'.  Deeds,  etc.        Ch.  72 

2907.  Separate  deeds  required,  when.  The  real  estate  of  each 

delinquent  shall  be  conveyed  by  a  separate  deed,  notwithstanding  the 
fact  that  the  same  person  may  have  purchased  the  real  estate  of 
several  delinquents.  This  shall  not  apply  to  lands  held  in  cotenancy 
or  joint  tenancy.  Such  lands  may  be  conveyed  by  one  and  the  same 
deed,  no  matter  how  many  delinquents  may  be  interested  therein. 
1901,  c.  558,  s.  10. 

2908.  Registration.  All  deeds  made  pursuant  to  this  chapter  by 
the  sheriff  shall  be  registered  in  the  same  manner  as  other  convey- 
ances of  real  estate,  and  shall  vest  in  the  grantee,  his  heirs  and 
assigns,  the  title  of  the  property  therein  described. 

1901,  c.  558,  s.  19. 

2909.  Evidence  of  what.  Deeds  made  by  a  sheriff  for  real  estate 
sold  for  taxes  shall  be  presumptive  evidence  in  all  courts  of  this 
state  in  all  controversies,  actions  and  proceedings  in  relation  to  the 
rights  of  the  jDurchaser,  his  heirs  or  assigns,  to  the  lands  thei-eby 
conveyed,  of  the  following  facts : 

1.  That  the  real  estate  conveyed  was  subject  to  taxation  for  the 
year  or  years  stated  in  the  deed. 

2.  That  the  taxes  were  not  paid  at  any  time  before  the  sale. 

3.  That  the  real  property  conveyed  had  not  been  redeemed  from 
the  sale  at  the  date  of  the  deed. 

4.  That  the  jsroperty  had  been  listed  and  assessed. 

5.  That  the  taxes  were  levied  according  to  law. 

6.  That  the  property  was  sold  for  taxes,  as  stated  in  the  deed. 

7.  That  all  notices  of  such  sale  required  to  be  served  upon  the 
delinquent  or  others  had  been  duly  served,  and  due  advertisement 
of  the  sale  had  been  made. 

And  such  deeds  shall  be  conclusive  proof  of  the  following  facts : 

1.  That  the  manner  in  which  the  listing,  assessment,  levy  and  sale 
were  conducted  was  in  all  respects  as  the  law  directed. 

2.  That  the  grantee  named  in  the  deed  was  the  purchaser  or  his 
assignee. 

3.  That  all  the  pre-requisites  of  the  law  were  complied  with  by 
all  the  officers  who  had  or  whose  duty  it  was  to  have  had  any  part 
or  action  in  any  transaction  relating  to  or  affecting  the  title  conveyed 
or  purporting  to  be  conveyed  by  the  deed,  from  the  listing  and  valu- 
ation of  the  property  up  to  the  execution  of  the  deed,  both  inclusive, 
and  that  all  things  whatsoever  required  by  law  to  make  a  good  and 
valid  sale  and  to  vest  the  title  in  the  purchaser  were  done,  except 
in  regard  to  the  points  named  in  this  section,  wherein  the  deed  shall 
be  presumptive  evidence  only. 


2900        TAXES,  COLLECTIOX  OF— IX.  Deeds,  etc.        Cli.  72 

And  in  all  controversies,  actions  and  proceedings  involving  the 
title  of  real  property  claimed  and  held  nnder  and  by  virtue  of  a 
deed  made  substantially'  as  required  by  this  chapter,  the  person  claim- 
ing title  adverse  to  the  title  conveyed  by  such  deed  shall  be  required 
to  prove,  in  order  to  defeat  the  title  which  such  deed  purports  to 
convey,  either  that  such  real  property  was  not  subject  to  taxation 
for  the  year  or  years  named  in  the  deed  or  that  the  taxes  had  been 
paid  before  the  sale,  or  that  the  property  had  been  redeemed  from 
the  sale  according  to  the  provisions  of  this  chapter,  and  that  sucli 
redemption  Avas  had  or  made  for  the  use  and  benefit  of  the  persons 
having  the  right  of  redemi^tion  \inder  the  laws  of  this  state,  or 
that  there  had  been  an  entire  omission  to  list  or  assess  the  property, 
or  to  levy  the  taxes,  or  to  sell  the  property.  Xo  person  shall  be  per- 
mitted to  question  the  title  acquired  by  a  sheriff's  deed  made  pur- 
suant to  this  chapter  without  first  showing  that  he  or  the  person 
under  whom  he  claims  title  had  title  to  the  property  at  the  time 
of  the  sale,  and  that  all  taxes  diie  upon  the  property  have  been  paid 
by  such  person  or  the  person  under  whom  he  claims  title.  But  siich 
deeds  shall  not  pass  title  where  the  taxes  for  which  the  sale  was  had 
had  been  paid  in  full  prior  to  such  sale.  And  in  all  cases  where 
the  owner  of  lands  sold  for  taxes  shall  resist  the  validity  of  such 
tax  title,  such  owner  may  prove  fraiid  committed  by  the  officer 
selling  the  same,  or  in  the  purchaser,  and,  if  such  fraud  is  estab- 
lished, such  sale  and  title  shall  be  void.  No  action  for  the  recovery 
of  real  property  sold  for  tlxe  nonpayment  of  taxes  shall  lie  unless 
the  same  be  brought  within  three  years  after  the  sheriff's  deed  is 
made  as  above  provided :  Provided,  that  where  the  owner  of  such 
real  jiroperty  sold  as  aforesaid  at  the  time  of  such  sale  be  a  minor 
or  insane  or  a  convict  in  the  penitentiary,  three  years  after  such 
disability  shall  be  removed  shall  be  allowed  such  ]ierson,  his  heirs 
or  legal  representatives  to  bring  action. 

1901,  c.  558,  s.  20. 

Note.     See  also,  ss.  362,  395. 

X.     Purchasers  ,\t  Tax  Sai.k. 

2910.  Purchaser  reimbursed  by  county  when  sale  by  mistake, 
etc.;  liability  of  sheriff;  state  to  refund,  when.  When  by  mistake 

or  wrongful  act  of  the  sheriff'  real  estate  has  been  sold  on  which  no 
tax  was  due  at  the  time,  or  whenever  land  is  sold  in  consequence  of 
error  in  describing  such  land  in  the  tax  receipt,  the  county  or  other 
municipal  cori)oration  shall  reimburse  the  purchaser  by  paying  to 
him  the  amount  of  principal  and  costs  by  him  expended  in  such  piir- 
chase,  with  interest  thereon  at  six  per  centum  per  annum ;  and 
the  sheriff'  shall  be  liable  to  the  county,  or  other  muni('i]ial  corpora- 


2910    TAXES,  COLLECTIOX  OF— A'.  Purchaser^,  etc.     Ch.   72 

tion,  upon  his  tax  bond,  for  all  amounts  so  expended  by  it ;  or  the 
purchaser  and  assigns  may  recover  such  amount  and  interest  directly 
from  the  sheriflF  in  an  action  upon  his  tax  bond.  But  the  sheriff 
and  his  sureties  in  all  such  cases  as  are  provided  for  in  this  section 
shall  be  liable  only  for  the  wrongful  acts  of  the  sheriff  and  his 
deputies.  Any  amount  paid  by  the  county  under  this  section  for 
state  taxes  shall,  on  proper  certificate  from  the  chairman  of  the  board 
of  county  commissioners,  be  allowed  by  the  auditor  and  paid  by  the 
state  treasurer. 

1901,  e.  558,  s.  21. 

2911.  Lien  of  purchaser.  The  purcha.ser  at  a  sale  for  taxes, 
and  his  heirs  and  assigns,  shall  have  a  lien  on  the  real  estate  by  him 
purchased  at  such  sale  for  the  amount  of  the  purchase-money  paid 
and  all  interest,  penalties,  costs  and  charges  allowed  him  by  law ; 
and,  if,  after  his  purchase,  he  pays  any  taxes  levied  upon  or  which 
constitute  an  incumbrance  upon  such  real  estate,  whether  assessed 
before  or  after  such  purchase,  he  shall  have  a  lien  for  all  sums  so 
paid  out  and  for  all  interest,  penalties,  costs-  and  charges  allowed 
him  by  law. 

1901,  c.  558,  s.  9. 

2912.  Remedies  of  purchasers  at  tax  sales;  foreclosure  by 

action;  duty  of  county  to  foreclose.  Every  holder  of  a  certitieate  of 
sale  of  real  estate  for  taxes  shall  be  subrogated  to  the  lieu  of  the  state 
and  of  the  county  or  other  municipal  corporation,  for  the  taxes 
for  which  such  real  estate  was  sold,  and,  instead  of  demanding  a  deed 
for  such  real  estate  under  the  provisions  of  this  chapter,  shall  be 
entitled  to  a  judgment  for  the  sale  of  such  real  estate  for  the  satis- 
faction of  whatever  sums  may  be  due  to  him  \ipon  such  certificate  of 
sale  and  for  any  other  amounts  expended  by  him  upon  any  other 
such  certificate  of  sale  of  such  real  estate,  or  for  taxes  paid  which 
were  a  lien  upon  such  real  estate,  whether  paid  prior  or  subsequent 
to  the  acquisition  of  such  certificate  of  sale.  Such  relief  shall  be 
aft'orded  in  an  action  in  the  nature  of  an  action  to  foreclose  a  mort- 
gage, which  action  must  be  commenced  within  two  years  fi'om  the 
date  of  the  last  certificate  of  sale  held  by  the  plaintiff.  Such  action 
shall  be  governed  in  all  respects,  as  near  as  may.be,  by  the  rules 
governing  actions  to  foreclose  a  mortgage.  Any  one  who  has  jiaid 
taxes  on  the  subject  matter  of  the  action,  or  who  holds  a  certificate 
of  sale  thereof,  may  be  made  a  party  and  his  rights  enforced  therein. 
In  such  action  the  plaintiff  must  show  that  he  gave  ten  days  writ- 
ten notice  of  his  intention  to  commence  the  same  to  the  owner  or 
occ\ipant  of  the  real  estate  which  it  is  sought  to  sell ;  and  in  the 
complaint  filed  in  such  action  each  certificate  of  sale  held  by  the 


2912     TAXEy,  COLLECTION  OF— A'.  Purchasers,  etc.     Cli.   72 

plaintiff  and  each  sum  expended  by  him  for  taxes  on  such  real 
estate,  shall  be  set  out  as  a  separate  cause  of  action.  Inability  to 
find  the  owner  or  occupant  in  the  county  shall  excuse  a  failure  to 
notify  him  of  plaintift"s  intention  to  sue. 

The  holder  of  a  deed  for  real  estate  sold  for  taxes  sliall  be  entitled 
to  the  remedy  provided  by  this  section,  if  he  elect  to  proceed  there- 
under. He  must  commence  such  action  within  two  years  from  the 
last  deed  or  certificate  of  sale  held  by  him. 

Every  county  or  other  municipal  corporation  shall  have  the  right 
to  foreclose  for  taxes  luider  the  provisions  of  this  section,  and  it 
shall  be  the  duty  of  its  commissioners  or  other  governing  body  or 
olficials  to  institute  and  diligently  prosecute  such  actions  for  all 
taxes  on  real  estate  for  which  it  holds  tax  sale  certificates  or  deeds 
remaining  unredeemed  as  much  as  four  years  from  the  dates  of 
such  instriunents.  No  such  actions  by  such  corporations  shall  be 
barred  by  the  lapse  of  time  as  is  above  provided  in  this  section 
or  elsewhere  in  this  Revisal,  for  other  actions,  but  only  by  the  lapse 
of  five  years  from  the  delivery  of  the  certificate  of  sale  or  deed  sought 
to  be  foreclosed. 

In  every  action  brought  under  this  section,  whether  by  a  private 
individual  or  by  the  county  or  other  municipal  corporation,  or 
any  other  corporation,  the  plaintiff  shall,  except  in  cases  otherwise 
provided  by  law,  be  entitled  to  recover  interest  at  the  rate  of  twenty 
per  centum  per  annum  on  all  amounts  paid  out  by  him,  or  those 
under  whom  he  claims,  and  evidenced  by  certificates  of  tax  sale, 
deed  under  tax  sale  and  tax  receipts.  Such  interest  shall  be  com- 
puted from  date  of  each  pa;}nnent  up  to  the  time  of  redemption  or 
final  judgment,  and  shall  be  added  to  the  principal  of  the  final 
judgment,  which  judg-ment  shall  bear  interest  as  in  other  cases. 

1901,  c.  558,  ss.  34,  35,  36,  44. 

XL     Eedeju'tio^x. 

2913.  When,  by  whom  and  how  effected;  amount  to  be  paid. 

The  owner  or  occujiant  of  any  land  sold  for  taxes,  or  any  person  hav- 
ing a  lien  thereon  or  any  interest  or  estate  therein,  may  redeem  the 
same,  at  any  time  within  one  year  after  the  day  of  such  sale,  by 
paying  the  sheriff  for  the  use  of  such  purchaser,  his  heirs  or  assigns, 
the  sum  mentioned  in  his  certificate,  with  interest  tliereon  at  the  rate 
of  twenty  per  centum  per  annum  from  tlic  date  of  purchase,  together 
witli  all  other  taxes  subsequently  paid,  whether  for  any  year  previoiis 
or  subsequent  to  such  sale,  and  interest  thereon  at  the  same  rate  from 
tJie  date  of  such  payment,  together  with  all  costs  and  expenditures 
made  or  incurred  in  carrying  out  the  provisions  of  this  cha])ter. 
The   sheriff  shall   enter   a   memorandum   of   the   rpdcmption   in    the 

SSO 


2913      TAXES,  COLLECTION  OF— XI.   Redemption.      Ch.   72 

list  of  sales  and  give  a  receipt  therefor  to  the  person  redeeming  the 
same,  for  which  he  ma^'  charge  a  fee  of  twenty-five  cents,  to  be  paid 
by  the  person  redeeming,  and  shall  hold  the  redemption  money 
paid,  subject  to  the  order  of  the  purchaser,  his  agent  or  attorney. 
But  if  any  such  purchaser,  other  than  a  county  or  other  municipal 
corporation,  shall  suffer  such  real  estate  to  be  again  sold  for  taxes, 
he  shall  be  entitled  to  only  ten  per  cent,  interest,  instead  of  twenty 
per  cent.,  as  allowed  in  this  and' the  next  preceding  section.  Infants, 
idiots  and  insane  persons  may  redeem  any  land  belonging  to  them 
within  one  year  after  the  expiration  of  such  disability  on  like  terms 
as  if  the  redemption  had  been  made  within  one  year  from  the  date 
of  said  sale  and  from  the  date  of  each  subsequent  payment  of  taxes 
thereon  at  the  rate  of  twenty  per  centum  per  annum  on  the  several 
amounts  so  paid  by  the  purchaser  until  redemption. 

IflOl,  c.  .5.58,  ss.   11,  12. 

2914.  To  whose  benefit  it  inures.  Any  redemption  made  shall 
inure  to  the  benefit  of  the  person  having  the  legal  or  equitable  title 
to  the  property  redeemed,  subject  to  the  right  of  the  person  making 
the  same  to  be  reimbursed  by  the  person  benefited ;  which  reimburse- 
ment is  hereby  made  a  condition  precedent  to 'the  vesting  of  any 
interest  or  estate,  under  the  benefits  of  this  section,  in  the  real  estate 
redeemed  in  the  person  whose  duty  it  is  to  make  siich  reimbursement. 

moi,  c.  5.58,  s.  11. 


Hcv.  \'ol.  1—52 


2!>10  TOWA'S — /.   Iiic(ir/)uratiuii  aitd  Fuirers.  L'li. 


CHAPTER  7:3. 
TOWNS. 

Sections. 
I.     Incorporation  and  powers,  2915 — 2918 

II.     Commissioners,  2919 — 2922 

III.  Powers  of  commissioners,  2923 — 2930 

IV.  Mayor,  2931—2937 
V.     Constable,  2938—2940 

VI.  Officers,  2941—2943 

VII.  Klections.  2944 — 2967 

VIII.  Taxes,  29G8 — 2973 

IX.  Municipal  debts.  2974 — 2977 

X.  Municipal  propert.v  sold,  2978 — 2980 

XI.  liegTilation  of  buildings,  2981 — 3011 

I.      Inc()i;]'()]!.vtiox  .vxd  Poavei;s. 

2915.  Every  town  a  body  politic.  P^very  iucoipoiated  cit.v  or 
town  is  a  body  politic  and  corporate,  and  shall  have  the  powers  pre- 
scribed bv  statute,  and  those  necessarily  ini]ilied  bv  law,  and  no 
other. 

Code,  s.  702. 

2916.  Corporate  powers.    A  city  or  town  is  authorized: 

1.  To  sue  and  be  sued  in  its  corporate  name. 

2.  Out  of  any  funds  on  hand,  and  without  crcatinu'  any  debt,  to 
purchase  and  hold  real  estate  for  the  use  of  its  inhabitants. 

3.  To  purchase  and  hold  land,  within  or  without  its  limits,  not 
exceeding'  fifty  acres,  for  the  pnrjaose  of  a  cemetery,  and  to  pro- 
hibit the  burial  of  persons  at  any  other  place  in  said  town,  and 
to  rcaulate  the  manner  of  burial  in  such  cemetery.  .Ml  municipal 
corporations  purchasing  real  i>roperty  at  any  trustee's  or  mortgagee's 
sale  or  commissioner's  sale  or  execution  or  tax  sale  shall  be  entitled 
to  a  cf)nveyance  therefor  from  the  trustee,  mortgagee  or  other  person 
or  officer  conducting  such  sale,  and  deeds  to  such  munici]ial  cor]>ora- 
tions  or  their  assigiis  shall  have  the  same  force  and  effect  as  convey- 
ances to  i^rivatc  ]iurchasers.  The  provisions  of  this  subsection  shall 
a)3p]y  to  such  sales  and  conveyances  as  may  have  been  heretofore 
made  by  the  persons  and  officers  mentioned  in  the  foregoing  section. 

4.  To  make  such  contracts  and  purchase  and  hold  such  personal 
]iroperty  as  may  be  necessary  to  the  exercise  of  its  jiowers. 

T).  To  make  such  orders  for  the  disposition  or  use  of  its  ]iro|M?rty 
as  the  interest  of  the  town  reipiires. 


i".ilil  TOWNS — I.  Incni-jwriifioii   and  J'oircrs.  Ch.    To 

li.   To  graut  upou  reasouable  terms  franchises  for  public  utilities. 

7.  To  provide  for  the  municipal  government  of  its  inhabitants  in 
I  lie  manner  required  by  law. 

s.   To  levy  and  collect  such  taxes  as  are  authorized  by  law. 

H.  To  do  and  perform  all  other  duties  and  powers  authorized  bv 
law. 

(•full'.  >s.  704.  3S17;   1901.  e.  2S.3 ;  11I0.3.  c.  ."vii;. 

2917.  How  corporate  powers  exercised.  The  corporate  powers 

can  be  exercised  only  bv  the  board  of  commissioners,  or,  in  pursu- 
ance of  resolutions  adopted  by  them,  imless  otherwise  specially  pro- 
vided by  law ;  which  board  shall  consist  of  not  less  than  three  nor 
more  than  seven  commissioners. 

Codf.  ss.  703,  37S7;  R.  C,  c.  111.  s.  1. 

2918.  How  far  this  ciiapter  applicable;  meaning  of  "commis- 
sioners." Tills  chapter  shall  apply  to  all  inc(ir]i(.)rafrd  cities  ami 
towns  wliere  the  same  shall  not  be  inconsistent  with  special  acts  of 
incorporation,  or  special  laws  in  reference  thereto,  and  the  word 
"conunissioners"  shall  also  be  construed  to  mean  "aldermen,"  or 
other  governing  municipal  authorities.  The  sections  of  this  chapter 
relating  to  municiiJal  or  town  elections  shall  apply  to  all  cities  and 
to^nls  not  expressly  excepted  by  law. 

Code,  s.  3827;  R.  C,  c.  Ill,  s.  23. 

II.        COMMISSIOIMEES. 

2919.  Elected  biennially  by  qualified  voters.  The  board  of  com- 
missioners of  each  town  shall  be  biennially  elected  by  the  qualified 
voters  thereof,  at  the  time  and  in  the  manner  prescribed  by  law. 

CoiU-,  s.  37S7. 

2920.  Oath  of  office  of.  The  commissioners  shall  take  and  sub- 
scribe an  oath  before  some  person  authorized  by  law  to  administer 
oaths  that  they  will  faithfully  and  impartially  discharge  the  duties 
of  their  oiRcc,  and  .such  oath  shall  be  filed  with  the  mayor  of  such 
town  and  entered  in  a  book  kept  for  that  purpose. 

Code.  s.  37nn:  R.  C.  c.  Ill,  s.  12. 

2921.  Vacancy,  how  filled.  In  case  of  a  vacancy  after  election 
in  the  office  of  commissioner  the  others  may  fill  it  until  the  next 
election. 

Code,  s.  3793:  R.  C,  c.  Ill,  s.  9. 

2922.  How   number   of,   changed.    After  the  first  election  the 

viiters  of  any  town  may,  whenever  and  as  often  as  they  choose,  at 

883 


2022  TOWNS— 77.   Commissioncrg.  Ch.  73 

the  time  of  electing  commissioners,  and  after  due  notice  given 
thereof  by  the  commissioners  then  in  authority,  by  a  majority  of 
all  the  votes  cast,  alter  the  number  of  commissioners,  so  that  the 
number  be  not  more  than  seven  nor  less  than  three;  and  thence- 
forth the  number  of  commissioners  agreed  on  shall  be  chosen. 
Code,  s.  3791;  K.  C,  e.  Ill,  s.  7. 

III.     Powers  of   Commissioners. 

2923.  Ordinances,  rules  and  regulations  made  by.  The  board 

of  commissioners  shall  have  power  to  make  ordinances,  rules  and 
regulations  for  the  better  government  of  the  town,  not  inconsistent 
with  this  chapter  and  the  law  of  the  land,  as  they  may  deem  neces- 
sary; and  may  enforce  them  by  imposing  penalties  on  such  as  vio- 
late them;  and  may  compel  the  performance  of  the  duties  imposed 
upon  others,  by  suitable  penalties. 

Code,  ss.  3799,  3804;  R.  C,  c.  Ill,  ss.  12.  17. 

Note.     For  proof  of  ordinances  on  apj>eal,  see  Evidence,  s.  1595. 

2924.  May  levy  taxes.  The  board  of  commissioners  may  annu- 
ally levy  and  cause  to  be  collected  for  municii:)al  purposes  a  tax 
not  exceeding  fifty  cents  on  the  hundred  dollars,  and  one  dollar  and 
fifty  cents  on  each  poll,  on  all  persons  and  property  within  the  cor- 
poration, which  may  be  liable  to  taxation  for  state  and  county  pur- 
poses; and  may  annually  lay  a  tax  on  all  trades,  professions  and 
franchises  carried  on  or  enjoyed  within  the  city,  unless  otherwise 
provided  by  law ;  and  may  lay  a  tax  on  all  such  shows  and  exhibi- 
tions for  reward  as  are  taxed  by  the  general  assembly ;  and  on  all 
dogs,  and  on  swine,  horses  and  cattle,  running  at  large  within  the 
town;  and  on  all  persons,  apothecaries  and  druggists  excepted,  re- 
tailing or  selling  liquors  or  wine  of  the  measure  of  a  quart  or  less,  a 
tax  not  exceeding  twenty-five  dollars  per  year,  if  the  sale  of  liquor  is 
allowed  in  such  town. 

Code,  s.  3800;  R.  C,  c.  Ill,  s.  13;  1862,  c.  51. 

2925.  May  appoint  a  constable  and  other  officers;  fix  salary  of 

mayor  and  others.  The  board  of  commissioners  may  appoint  a 
town  constable,  and  such  other  officers  and  ngcnts  as  may  be  neces- 
sary to  enforce  their  ordinances  and  regulations,  keep  their  records, 
and  conduct  their  afl^airs;  may  determine  the  amoimt  of  their  sala- 
ries or  compensation ;  and  also  the  compensation  or  salary  of  the 
mayor;  may  impose  oaths  of  office  upon  them,  and  require  bonds 
from  them  payable  to  the  state,  in  proper  penalties  for  the  faithful 
discharge  of  their  duties. 

Code,  9.  3800;  R.  C.  c.  111.  s.  13;   18G2,  c.  51. 


L'0i2(i  TOAVjS'^S — ///.  Powers  of  Commissioners.  Cli.  7:5 

2926.  May  appoint  police.  The  board  of  commissioners  may  ap- 
point town  watch  or  police,  to  be  regulated  by  such  rules  as  the 
board  may  prescribe. 

Code,  s.  3803;  R.  C,  c.  Ill,  s.  16. 

2927.  Policemen  may  execute  criminal  process.    A  policeman 

shall  have  the  same  authority  to  make  arrests  and  to  execute  criminal 
process,  within  the  town  limits,  as  is  vested  by  law  in  a  sheriff. 
Code,  s.  3811. 

2928.  May  establish  and  regulate  markets;  street  sales  free, 

when.  The  board  of  commissioners  may  establish  and  regulate  their 
markets,  and  prescribe  at  what  place,  within  the  corporation,  shall 
be  sold  marketable  things ;  in  what  manner,  whether  by  weight  or 
measure,  may  be  sold  grain,  meal  or  flour  (if  the  flour  be  not  packed 
in  barrels),  fodder,  hay,  or  oats  in  straw;  may  erect  scales  for  the 
purpose  of  weighing  the  same,  appoint  a  weigher,  fix  his  fees,  and 
direct  by  whom  they  shall  be  paid.  But  it  shall  not  be  lawful  for 
the  commissioners  or  other  authorities  of  any  town  to  impose  any 
tax  whatever  on  wagons  or  carts  selling  farm  jiroducts,  garden  truck, 
flsh  and  oysters  on  the  public  streets  thereof. 

Code,  s.  3801;  R.  C,  c.  Ill,  s.  14;   1879,  c.  170. 

2929.  May  abate  nuisances.  The  board  of  commissioners  may 
pass  laws  for  abating  or  preventing  nuisances  of  any  kind,  and  for 
preserving  the  health  of  the  citizens. 

Code,  s.  3802;  R.  C,  c.  Ill,  s.  15. 

2930.  Shall  repair  streets  and  bridges.  The  board  of  commis- 
sioners shall  jDrovide  for  keeping  in  proper  repair  the  streets  and 
bridges  in  the  town,  in  the  manner  and  to  the  extent  they  may  deem 
best ;  may  cause  such  im23rovements  in  the  town  to  be  made  as  may 
be  necessary,  and  may  apportion  the  same  equally  among  the  inhabi- 
tants, by  assessments  of  labor  or  otherwise,  and  the  citizens  shall 
not  be  liable  to  work  on  the  public  roads  without  the  limits  of  the 
town.  When  they  determine  to  repair  or  improve  by  labor,  they 
may  appoint  an  overseer  and  compel  such  persons  as  are  liable  to 
perform  duty  on  the  public  roads  to  work  on  the  streets,  in  the 
manner  and  under  the  penalties  provided  in  the  general  law  for 
the  reparation  of  the  public  roads. 

Code,  s.  3803;  R.  C,  c.  HI,  s.  16. 


Note.     For  prohibition  of  title  to  streets,  etc.,  by  occupancy,  see  ss.  388,  389. 


2931  TOWNS— /r.  Mtujur.  Ch.   7:1 

IV.    :\rAYoi;. 

2931.  How  elected;  vacancy.  In  like  luanuer,  aud  at  the  same 
time  when  conmiissioiiers  are  elected,  the  voters  may  by  ballot,  under 
the  inspection  of  the  same  persons  and  under  the  same  rules  and 
regulations,  elect  a  uiayor  of  the  town ;  aud  the  persons  having  the 
highest  number  of  votes  shall  be  declared  elected.  In  case  of  a 
vacancy  in  the  office,  the  commissioners  may  fill  the  same. 

Code,  s.  3794;  E.  C,  o.  Ill,  s.  10. 

2932.  To  take  oath  of  office.  The  mayor,  before  some  justice 
of  the  peace,  or  other  person  authorized  by  law  to  administer  oaths, 
shall  take  and  subscribe  the  oaths  prescribed  for  public  officers,  and 
an  oath  that  he  will  faithfully  and  impartially  discharge  the  dutie> 
imposed  upon  him  by  law,  which  said  oath  shall  be  filed  with  the 
records  of  the  town  and  be  entered  on  the  same  book  with  the  oaths 
of  the  commissioners. 

Code,  s.  3798;  R.  C.  c.  Ill,  s.  11. 

2933.  Presiding  officer  at  commissioners'  meetings;  mayor  pro 

tern.   The  mayor  shall  preside  at  the  meetings  of  the  commissioners, 
but  shall  have  no  vote  except  in  case  of  a  tie ;  and  in  the  event  of 
his  absence  or  sickness,  the  board  of  commissioners  may  appoint 
one  of  their  number  pro  tempore,  to  e.xcrcise  his  duties. 
Code,  s.  3794;  R.  C,  c.  Ill,  s.  10. 

2934.  Criminal  jurisdiction  of.  The  mayor  of  every  city  or  incor- 
porated town  is  hereby  constituted  an  inferior  court,  and  as  such 
court  such  mayor  shall  be  a  magistrate  and  conservator  of  the 
peace,  and  within  the  corporate  limits  of  his  eit^'  or  town  shall 
have  the  jurisdiction  of  a  justice  of  the  jieace  in  all  criminal  matters 
arising  under  the  laws  of  the  state,  or  under  the  ordinances  of  such 
city  or  town.  The  rules  of  law  regulating  proceedings  before  a 
justice  of  the  peace  shall  be  applicable  to  proceedings  before  such 
mayor,  and  he  shall  be  entitled  to  the  same  fees  which  arc  allowccl 
to  justices  of  the  peace. 

Code,  s.  3818;   1871-2,  c.  U).') ;   1876-7,  f.  24:!. 

2935.  Ordinances  and  penalties  enforced;  appeals.    .Vs  such 

court  the  mayor  shall  have  authority  to  hear  au<l  determine  all 
cases  that  may  arise  upon  the  ordinances  of  the  city  or  town;  to 
enforce  penalties  by  issuing  execution  upon  any  adjudged  viola- 
tion thereof,  and  to  execute  the  laws  and  rules  that  may  be  made 
and  i)rovided  by  the  board  of  commissioners  of  said  city  nr  town, 
fur  the  government  an<l  regulation  of  the  said  city  (ir  lown,  but 
ill  all  cases  any  ])cfs<iH  dissatistied   with   the  juilgmcnt  nf  the  mayor. 


:i!);5.-)  TOWXS— /!'.  Mai/or.  Ch.   73 

may  appeal  to  the  superior  court  as  in  case  of  a  judgment  rendcrcil 
by  a  justice  of  the  jjeace. 

Code,  s.  ;i810;   1876-7,  c.  243.  s.  -1. 

2936.  Mayor  must  certify  ordinances  on  appeal.  lu  all  cases 

of  appeal  from  a  mayor's  court  to  the  suiierior  or  other  court  of 
appeal,  when  the  oifense  charged  is  the  violatiou  of  a  town  ordi- 
nance the  maj'or  shall  send  with  the  papers  in  the  case  a  true  copy 
of  the  ordinance  alleged  to  have  been  violated,  and  shall  certify 
under  his  hand  and  seal  that  said  ordinance  was  in  force  at  the  time 
of  the  alleged  violation  of  the  same. 

1800,  c.  277. 

2937.  May  sentence  to  worl<  on  streets  to  pay  fine,   in  all 

cases  where  judgments  may  be  entered  up  against  any  person  for 
tines,  according  to  the  laws  and  ordinances  of  any  incorporated  town, 
and  the  person  against  ^vhonl  the  same  is  so  adjudged  refuses  or 
is  unable  to  pay  such  judgment,  it  may  and  shall  be  lawful  for 
the  mayor  before  whom  such  judgment  is  entered,  to  order  and 
require  such  person,  so  convicted,  to  work  on  the"  streets  or  other 
public  works,  until,  at  fair  rates  of  wages,  such  person  shall  have 
worked  out  the  full  amount  of  the  judgment  and  costs  of  the  prosecu- 
tion ;  and  all  sums  received  for  such  fines  shall  be  paid  into  the 
treasury.     'No  woman  shall  be  worked  on  the  streets. 

Code,  s.  3806;  1807,  c.  270;  1800,  c.  128;  1866-7,  c.  13. 

V.      CoNSTABmc. 

2938.  To  tal<e  an  oath  of  office.  The  town  constable  shall,  be- 
fore some  person  authorized  to  administer  oaths,  take  and  subscribe 
to  the  oaths  prescribed  for  public  officers,  and  an  oath  that  he  will 
faithfully  and  imjjartially  discharge  the  duties  of  his  ofHce  accord- 
ing to  law,  whicli  said  oath  shall  be  filed  with  the  mayor  and  entered 
in  the  book  with  the  oaths  of  the  commissioners. 

Code,  s.  3808;  R.  C.,  c.  Ill,  s.  20. 

Note.      For  npixiintniciil  of  spprial  foiistalilo.  see  s.  03.t.     . 

2939.  Power  as  to  process  and  as  peace  officer.  As  a  peace 

officer,  the  constable  shall  have  within  the  town  all  the  powers  of  a 
constable  in  the  county ;  and  as  a  ministerial  officer,  he  shall  have 
power  to  serve  all  civil  and  criminal  process  that  may  be  directed  to 
him  by  any  court  within  his  county,  under  the  same  regulations  and 
penalties  as  prescribed  bj'  laAv  in  tlie  case  of  other  constables,  and 
to  enforce  tlie  ordinances  and  regulations  of  the  board  of  commis- 
sioners as  tlie  board  may  direct. 

Code,  SR.  3808,  :!810;  i;.  C.  i-.  111.  s.  20:  1S70,  v.  206;  1807,  f.  .510;  1800,  c. 
168. 

887 


2040  TOWNS— r.   Constable.  Cli.   T-i 

2940.  Power  as  tax  collector;  bond.  The  constable  shall  have 
the  same  power  to  collect  the  taxes  imposed  by  the  coimiiissioners  as 
sheriffs  have  to  collect  the  taxes  imposed  by  the  county  commission- 
ers, and  he  may  be  required  by  the  commissioners  to  give  bond, 
with  sufficient  surety,  payable  to  the  state  of  North  Carolina,  in 
such  sum  as  the  commissioners  may  prescribe,  to  account  for  the 
same;  upon  which  suit  may  be  brought  by  the  commissioners,  as 
upon  the  bonds  of  other  officers.  The  bond  of  the  constable  shall 
be  duly  proved,  before  the  mayor  and  commissioners,  and  registered 
in  the  office  of  the  register  of  deeds. 

Code,  3809;  R.  C,  e.  Ill,  s.  21. 

VI.     Officers. 

2941.  Must  be  voters  in  town  or  city.  No  person  shall  be  a 
mayor,  commissioner,  intendant  of  police,  alderman  or  other  chief 
officer  of  any  city  or  town,  unless  he  shall  be  a  qualified  voter 
therein. 

Code,  s.  3796;   1870-1,  c.  24,  s.  3. 

2942.  Penalty  for  refusing  to  qualify  and  act.  Every  person 

elected  or  appointed  commissioner,  mayor,  or  town  constable,  who, 
after  being  duly  notified,  shall  neglect  or  refuse  to  qualify  and 
perform  the  duties  of  his  office  or  appointment,  shall  pay  twenty- 
five  dollars,  one-half  to  the  use  of  the  town,  and  the  other  half  to 
the  use  of  any  person  who  will  sue  for  the  same. 
Code,  s.  3812;  R.  C,  c.  Ill,  s.  22. 

2943.  Hold  over,  when.  Whenever  the  day  of  election  shall  be 
altered,  the  officers  of  the  corporation  elected  or  appointed  before 
that  day,  shall  hold  their  places  till  the  day  of  election,  and  until 
other  officers  shall  be  elected  or  appointed  and  qualified.  And  they 
shall  hold  their  offices  in  like  manner,  when  there  is  any  failure  to 
make  the  annual  election. 

Code,  s.  3792;  R.  C,  c.  Ill,  8.  8. 

VIT.        El.KCTION'S. 

2944.  How  far' this  chapter  applicable.   All  elections  held  in 

any  city  or  town  shall  be  held  under  the  following  rules  and  regu- 
lations, except  in  the  cities  of  Charlotte  and  Fayetteville,  and  in 
the  town  of  Shelby,  and  in  the  towns  in  the  counties  of  Bertie, 
Cabarrus,  Caldwell,  Catawba,  Chowan,  Columbus,  Davidson,  Edge- 
combe, Gaston,  Harnett,  Lenoir,  Mitchell,  Nash,  Pitt,  Randolph, 
Robeson,  Stokes,  Surry,  Vance,  Wayne  and  Wilson. 
1901,  e.  750,  9.S.  1,  21  ;  1903,  ce.  184,  218,  626,  769,  777. 


2!i45  TOWNS— r//.  Election.'^.  Ch.   7:5 

2945.  When  election  held,  in  all  cities  and  towns  an  election 
shall  be  held  on  Tuesday  after  the  first  Monday  of  May,  one  thou- 
sand nine  hundred  and  five,  and  biennially  thereafter. 

1901.  c.  750,  s.  19. 

2946.  Polling  places.  There  shall  be  at  least  one  iiolling  jjlace 
in  each  ward  in  the  town  or  city,  if  the  said  town  or  city  is  divided 
into  wards;  and  if  not  divided  into  wards,  then  there  shall  be  as 
many  polling  places  as  may  be  established  by  the  governing  body 
of  said  town  or  city. 

1901.  c.  750.  s.  -2. 

2947.  Registrars   appointed;   public    notified;   vacancy.   The 

board  of  commissioners  shall  select,  at  least  thirty  days  before  any 
city  or  town  election,  one  person  for  each  election  precinct,  who  shall 
act  as  registrar  of  voters  for  such  precinct ;  and  shall  make  publica- 
tion of  the  names  of  the  persons  so  selected,  and  of  the  time  of  the 
election,  at  the  town  or  city  hall,  or  at  the  usual  place  of  holding 
the  mayor's  court,  immediately  after  such  appointment,  and  shall 
cause  a  notice  to  be  served  upon  the  registrars  by  the  sheriff  of 
the  county  or  the  township  constable.  If  anv  registrar  shall  die 
or  neglect  to  perform  his  duties,  said  governing  body  may  appoint 
another  in  his  place. 

1901,  c.  750,  s.  5:   190.3,  c.  6l;5. 

2948.  Registrars  to  take  an  oath.  Before  entering  upon  the  du- 
ties of  his  office  each  registrar  shall  take  an  oath  before  some  person 
authorized  by  law  to  administer  oaths  to  faithfully  perform  the 
duties  of  his  office  as  registrar. 

1901,  c.  750,  s.  6. 

2949.  Registration  of  voters.  It  shall  be  the  duty  of  the  board 
of  commissioners  of  every  city  and  town  to  cause  a  registration  to 
be  made  of  all  the  qualified  voters  residing  therein,  under  the  rules 
and  regulations  prescribed  for  the  registration  of  voters  for  general 
elections.  And  where  there  has  been  a  registration  of  voters,  the 
board  of  commissioners  may,  in  its  discretion,  order  a  new  registra- 
tion of  voters ;  and  unless  such  new  registration  shall  be  ordered,  the 
election  shall  be  held  under  the  existing  registration,  with  such  revi.s- 
ion  as  is  herein  provided. 

Code.  s.  3795;   1901.  c.  7.50.  s.  .-!. 

2950.  Notice  of  new  registration.  In  the  event  a  new  registra- 
tion is  ordered  the  board  of  commissioners  shall  give  thirty  days' 
notice  thereof  by  advertisement  in  some  newspaper,  if  there  be  one 

889 


JIJ.-.O  TOWN'S— 17/.   Elections.  Ch.    7:; 

published  in  the  tuwii  or  city,  and  if  there  be  none  so  publislied,  rlicn 
ill  three  public  phu-es  in  the  city  or  town. 

1001,  c.  750,  s.  4. 

2951.  Registration  books  revised.  Each  registrar  shall  he  tin- 
nished  with  registration  books,  and  it  shall  be  his  duty  to  revise 
the  registration  book  of  his  precinct  in  such  manner  that  said  books 
shall  show  an  accurate  list  of  the  electors  previously  registered  in 
such'  ward  or  precinct  and  still  residing  therein,  without  requiring 
such  electors  to  be  registered  anew. 

1901.  c.  750,  s.  0. 

2952.  When  registration  books  opened  and  closed;  who  may 

register.  Each  registrar  shall,  betweeu  the  liours  uf  nine  o'clock 
a.  m.  and  live  o'clock  p.  ni.  on  each  day  (Sunday  excepted)  for  seven 
days  preceding  the  day  for  closing  the  registration  books,  as  herein 
after  provided,  keep  open  said  books  for  the  registration  of  any  new 
electors  residing  in  the  precinct,  and  entitled  to  register,  whose 
names  have  never  before  been  registered  in  such  ]u-ecinct,  or  do 
not  appear  in  the  revised  list.  Such  books  shall  be  open  until  nine 
o'clock  p.  m.  of  each  Saturday  during  such  registration  period  and 
shall  be  closed  for  registration  on  the  second  Saturday  bcfoi-e  each 
election. 

1901,  c.  750,  s.  G. 

2953.  Registration  on  election  day.    Xo  registration  .shall  be 

allowed  on  the  day  of  election,  but  if  any  person  shall  give  satisfac- 
tory evidence  to  the  registrar  and  judges  of  election  that  he  has 
become  of  the  age  of  twenty-one  years  or  otherwise  has  become  quali- 
fied to  register  and  vote  since  the  registration  books  were  closed  for 
registration,  he  shall  l)c  allow('<l  to  register  and  vote. 
1901,  c.  750,  s.  S. 

2954.  Vacancies  on  election  day.    if  any  vacancy  shall  occur 

on  the  day  of  election  in  the  office  of  registrar,  the  same  shall  be 
filled  by  the  judges  of  election,  and  if  any  vacancy  shall  occur  on 
that  day  in  the  office  of  judge  tlie  same  shall  be  tilled  by  the  regis- 
trar; vacancies  occurring  at  any  (itlicr  time  slmll  hr  tilled  by  the 
board  of  commissioners. 

1901,  c.  750,  s.  20. 

2955.  When  books  open  for  challenge.  On  riie  second  Saturday 

before  the  election   the  registralidu   1 ks  sIkiH   lie  kept  o])en  at  the 

|)olling  place  in  the  precinct  for  the  inspection  of  the  electors  of  the 
precinct,  and  any  of  such  electors  shall  be;  allowed  to  object  to  the 
name  of  any  ]ierson  a]i]ienring  <in  saiil  bodks. 

111(11.  0.  750,  s.  7. 


i".»r.()  TOWXH— T//.  Khcliom.  Cli.   T:i 

2956.  Practice  in  challenges.  When  a  person  is  challeused  the 
registrar  shall  enter  upon  his  books  opposite  the  name  of  the  per- 
son objected  to  the  word  "Challenged,"  and  the  registrar  shall  ap- 
point a  time  and  place,  on  or  before  the  Monday  immediately  pre- 
ceding election  day,  when  he,  together  with  the  judges  of  election, 
shall  hear  and  decide  the  objection,  giving  personal  notice  to  the 
\'oter  so  objected  to ;  and  if  for  any  cause,  personal  notice  can  not 
be  given,  then  it  shall  be  sufficient  to  leave  a  copy  thereof  at  his 
residence.  If  any  person  challenged  shall  be  found  not  duly  quali- 
fied, the  registrar  shall  erase  his  name  from  the  books.  They  shall 
hear  and  determine  the  cause  of  challenge  under  the  rules  and  regu- 
lations prescribed  by  the  general  law  regulating  elections  for  mem- 
bers of  the  general  assembly. 

moi,  c.  750,  ss.  7,  n. 

2957.  Registration  books,  where  deposited.  Immediately  after 

any  election  the  registrars  shall  <lepi)sit  the  registration  books  for  the 
respective  precincts  with  the  lioard  of  eomniissioners. 
1901.  c.  7oO,  s.  11. 

2958.  Judges  of  election  appointed;  oath  of.  The  board  of  com- 
missioners shall  api)oint,  at  least  thirty  days  before  any  city  or  town 
election,  two  judges  of  election,  who  shall  be  of  different  political 
parties  where  possible,  and  shall  be  men  of  good  character,  able  to 
read  and  write,  at  each  place  of  holding  election  in  said  city  or 
town,  who,  before  entering  upon  the  discbarge  of  their  duties,  shall 
take  an  oath,  before  some  person  authorized  by  law  to  administer 
oaths,  to  conduct  the  election  fairly  and  impartially,  according  to 
the  constitution  and  laws  of  the  state. 

1901,  c.  750,  s.  7. 

2959.  Judges  superintend  election;  poll  books.   The  judges  of 

election  shall  open  the  polls  and  superintend  the  same  iintil  the  close 
of  election ;  they  shall  keep  poll  books  in  which  shall  be  entered  the 
name  of  every  person  who  shall  vote,  and  at  the  close  of  the  election 
they  shall  certify  the  same  over  their  proper  signatures  and  deposit 
them  with  the  board  of  commissioners. 

1901,  c.  750,  s.  7. 

2960.  When  polls  open  and  close.  The  polls  shall  be  open  on 
the  day  of  election  from  eight  o'clock  a.  m.  till  sunset,  and  no  longer ; 
and  each  person  whose  name  may  be  registered  shall  be  entitled  to 
\'ote. 

1901,  c.  750.  s.  10. 

2961.  Who  may  vote.  All  (|ualified  electors  who  shall  have  re- 
sided   for    four   uioutlis    immediately   preceding   an   election   within 

891 


-".itil  TOWN'S— 17/.  Ekcliuius.  Cli.   7:; 

the  limits  of  auy  voting  precinct  of  a  city  or  town,  and  not  otherwise, 
shall  have  the  right  to  vote  in  such  precinct  for  mayor  and  other 
city  or  town  officers. 
1901,  c.  750,  s.  9. 

2962.  Ballots  and  ballot  boxes.    All  ballots  shall  be  printed  or 

written  npou  white  paper  and  shall  be  of  the  same  size,  without 
device,  mutilation  or  ornamentation,  the  size  of  ballots  to  be  fixed 
by  board  of  commissioners  at  the  same  meeting  the  registrar  is 
appointed.  The  governing  body  of  the  city  or  town  shall  provide 
for  each  election  precinct  in  their  respective  cities  or  towns  neces- 
sary ballot  boxes  in  which  to  deposit  the  ballots ;  each  of  such  boxes 
shall  have  an  opening  through  the  lid  to  admit  a  single  folded  ballot, 
and  no  more.  The  ballot  boxes  shall  be  kept  by  the  judges  of  elec- 
tion for  the  use  of  the  election  precincts  respectively ;  and  the  regis- 
trar and  judges  of  election,  before  the  voting  begins,  shall  carefully 
examine  the  ballot  boxes  and  see  that  there  is  nothing  in  them,  and 
they  shall  be  sealed  or  securely  fastened  and  not  be  opened  until  the 
polls  are  closed. 

■       1901,  c.  750,  s.  12;   1903,  e.  613,  s.  2. 

2963.  Ballots  counted;  result  declared;  void  ballots.  When  the 

election  shall  be  finished  the  registrar  and  judges  of  election  shall 
open  the  boxes  and  count  the  ballots,  reading  aloud  the  names  of 
the  persons  which  shall  appear  on  each  ballot ;  and  if  there  shall  be 
two  or  more  ballots  rolled  up  together,  or  any  ballot  shall  contain  the 
names  of  more  persons  than  the  elector  has  the  right  to  vote  for, 
<ir  shall  have  a  device  or  ornament  upon  it,  in  either  of  these  cases 
such  ballots  shall  not  be  numbered  in  taking  the  ballots,  but  shall  be 
void ;  and  the  coimting  of  votes  shall  be  continued  without  adjourn- 
ment until  completed,  and  the  result  thereof  declared. 

1901,  c.  750,  s.  13. 

2964.  Board  of  canvassers;  original  returns.  The  registrar  and 

judges  of  election  in  each  voting  precinct  shall  a])point  one  of  their 
number  to  attend  the  meeting  of  the  board  of  canvassers  as  a  mem- 
ber thereof,  and  shall  deliver  to  the  member  who  shall  have  been 
so  appointed  the  (U'iginal  returns  of  the  result  of  the  election  in 
such  precinct;  and  the  members  of  the  board  of  canvassers  who  shall 
have  been  so  appointed  shall  attend  the  meeting  of  the  board  of  can- 
vassers, and  shall  constitute  the  board  of  town  canvassers  for  such 
election,  and  a  majority  of  them  shall  constitute  a  quorum.  Tn  towns 
where  there  is  only  one  voting  precinct,  the  registrar  and  judges  of 
election  shall,  at  the  close  of  the  election,  declare  the  result  thereof. 

1901,  c.  750,  ss.   13.  14. 


3965  TOWNS— F//.  Elections.  Ch.   73 

2965.  When  and  where  board  meets;  oath.  The  board  of  can- 
vassers shall  meet  on  the  next  day  after  the  election  at  twelve  o'clock 
m.,  at  the  mayor's  office,  and  they  shall  each  take  the  oath  prescribed 
iu  the  general  law  governing  elections  for  members  of  the  board 
of  county  canvassers. 

1901,  c.'tSO,  s.   15. 

2966.  Board  determines  result;  tie  vote,  fhe  board  of  can- 
vassers shall,  at  their  meeting,  iu  the  presence  of  such  electors  as 
choose  to  attend,  open,  canvass  and  judicially  determine  the  result, 
and  shall  make  abstracts,  stating  the  number  of  legal  ballots  cast 
in  each  precinct  for  each  office,  the  name  of  each  person  voted  for 
and  the  number  of  votes  given  to  each  person  for  each  different 
office,  and  shall  sign  the  same.  It  shall  have  power  and  authority 
to  judicially  pass  upon  all  the  votes  relative  to  the  election  and 
judicially  determine  and  declare  the  result  of  the  same,  and  shall 
have  power  and  authority  to  send  for  papers  and  persons  and  exam- 
ine the  latter  upon  oath ;  and  in  case  of  a  tie  between  two  opposing 
candidates,  the  result  shall  be  determined  by  lot.  In  all  other 
respects  all  elections  held  in  any  town  or  city  shall  be  conducted  as 
prescribed  for  the  election  of  members  of  the  general  assembly. 

1901,  c.  750.  ss.  16,  17. 

2967.  Notice  of  special  election.  No  special  election  shall  be 
held  for  any  purpose  in  any  county,  township,  city  or  town  unless 
at  least  thirty  days'  notice  shall  have  been  given  of  the  same  by 
advertisement  in  some  newspaper  published  in  said  county,  city  or 
town,  or  by  advertisement  posted  at  the  courthouse  of  the  county 
and  four  other  public  places  in  such  county,  city  or  town. 

1901,  c.  750,  s.  24. 

VIII.     Taxes. 

2968.  Must  be  uniform  and  ad  valorem.  All  taxes  levied  by  any 

county,  city,  town,  or  township,  shall  be  uniform  and  ad  valorem, 
upon  all  property  in  the  same,  except  property  exempted  by  this 
constitution. 

Const.,  Art.  VII,  s.  9. 

2969.  Tax  list  taken,  by  whom;  failure  to  list,  pays  double  tax. 

The  mayor,  or  other  suitable  person,  shall,  by  order  of  the  commis- 
sioners, take  the  list  of  taxables  in  the  town,  in  such  manner  and 
at  such  time  as  the  commissioners  shall  prescribe.  If  any  person 
fail  to  list  his  taxables  within  the  time  prescribed  by  the  commis- 
sioners, he  shall  be  liable  to  a  double  tax. 

Code,  s.  3807;  R.  C,  e.  Ill,  s.  19. 

Note.     See  s.  2924. 


■J'.^li)  TOWXS— 17//.   Taxes.  Cli.   7:; 

2970.  Tax  list  corrected.  All  tax  lists,  either  county  or  uuinici- 
jjal,  which  may  be  placed  in  the  hands  of  any  sheriff  or  tax  collector, 
shall  be  at  all  times  under  the  control  of  the  authorities  iniposins; 
the  tax,  and  subject  to  be  corrected,  or  altered  by  them,  and  shall 
be  open  for  inspection  by  the  public,  and  upon  demand  by  the 
authorities  imposing  the  tax,  or  their  successors  in  office,  shall  be 
surrendered  to  the  lawful  authorities  for  siich  inspection  or  correc- 
tion. 

Code.  s.  3823;   1870-1.  e.  177,  s.  2. 

2971.  Dog  tax.  If  any  person  residing  in  a  town  shall  have 
therein  any  dog,  and  shall  not  return  it  for  taxation,  and  shall  fail 
to  pay  the  tax  according  to  law,  the  commissioners,  at  their  option, 
may  collect  from  the  person  so  failing  double  the  tax,  or  may  treat 
such  dog  as  a  nuisance,  and  order  his  destruction. 

Code,  s.  3815;  H.  C.  c.  Ill,  s.  24. 

2972.  Monthly  settlements  by  tax  collector.    Kach  town  and 

city  constable,  or  any  other  officer  authorized  by  any  town  or  city 
to  collect  taxes,  fines  or  penalties,  shall  make  a  monthly  .settlement 
of  all  moneys  coming  into  his  hands,  with  the  town  treasurer  or 
other  officer  atathorized  to  receive  the  same. 

Code,  s.  381.S:   1879,  c.  194. 

2973.  Annual  statement  taxes  received  and  disbursed  pub- 
lished. The  commissioners  shall  annually  publish  an  accurate  state- 
ment of  the  taxes  levied  and  collected  in  the  town,  together  with 
a  statement  of  the  amount  expended  by  them,  and  for  what  purpose. 
And  any  board  of  commissioners  failing  to  comply  with  this  sec- 
tion shall  forfeit  and  pay  one  hundred  dollars  to  any  person  who 
will  sue  for  the  same. 

Code,  s.  3816;  R.  C,  c.  Ill,  s.  25. 

IX.      ]\IuAicii',\i.  Dkhts. 

2974.  No  debt  or  tax  except  for  necessaries,  but  by  vote  of 

people.  jSTo  county,  cit}',  town,  or  other  municipal  corporation  shall 
contract  any  debt,  pledge  its  faith,  or  loan  its  credit,  nor  shall  any 
tax  be  levied,  or  collected  by  any  officers  of  the  same,  except  for  the 
necessary  expenses  thereof,  unless  by  a  vote  of  the  majority  of  the 
qualified  voters  therein. 
Const.,  Art.  VII,  s.  7. 

2975.  How  paid.  Debts  contracted  by  a  municipal  corporation 
in  pursuance  of  authority  vested  in  it,  shall  not  be  levied  out  of 
any  property  belonging  to  such  corporation   and   used  by  it  in   the 


21I75  TOWNS— /A'.  Municipal  Dehh.  Ch.   7:3 

discharge  and  execution  of  its  corporate  duties  and  trusts,  nor  out 
of  the  property  or  estate  of  any  individual  who  may  be  a  member 
of  such  corporation  or  may  have  property  within  the  limits  thereof. 
But  all  such  debts  shall  be  paid  alone  by  taxation  upon  subjects 
properly  taxable  by  such  corporation :  Provided,  that  whenever  any 
individual,  by  his  contract,  shall  become  bound  for  such  debt,  or 
any  person  may  become  liable  therefor  by  reason  of  fraud,  such  per- 
son may  be  subjected  to  pay  said  debt. 
Code.  s.  3821;   1870-1,  c.  90. 

2976.  Taxation  of  municipal  bonds.    All  laws  aud  clauses  of 

laws  heretofore  passed  exempting  bonds  issued  by  any  municipal 
corporation  of  the  state  of  IN'orth  Carolina  from  state,  county  or 
municipal  taxation  be  and  the  same  are  hereby  repealed :  Provided, 
that  nothing  herein  shall  be  construed  to  prevent  a  municipality  from 
exempting  its  bonds  from  its  own  taxation. 

1905,  c.  532. 

2977.  Limited  to  ten  per  cent,  of  assessed  values.  It  shall  be 

unlawful  for  any  city  or  town  to  contract  any  debt,  pledge  its  faith 
or  loan  its  credit  for  the  construction  of  railroads,  the  support  or 
maintenance  of  internal  improvements  or  for  any  special  purpose 
whatsoever,  to  an  extent  exceeding  in  the  aggregate  ten  per  cent,  of 
the  assessed  valuation  of  the  real  and  personal  property  situated  in 
such  city  or  town.  And  the  levy  of  any  tax  to  pay  any  such  indebted- 
ness in  excess  of  this  limitation  shall  be  void  and  of  no  effect. 

1889.  e.  486. 

X.     Municipal  Pkopeuty  Sold. 

2978.  By  mayor  and  commissioners  at  public  sale.  The  mayor 

and  commissioners  of  any  town  shall  have  power  at  all  times  to  sell 
at  public  outcry,  after  thirty  days'  notice,  to  the  highest  bidder,  any 
property,  real  or  personal,  belonging  to  any  such  town,  and  apply 
the  proceeds  as  they  may  think  best. 

Code,  s.  3824;   1872-3,  c.  112. 

2979.  By  county  commissioners,  when  no  mayor.  In  any  town 

where  there  is  no  mayor  or  commissioners,  the  board  of  coimty  com- 
missioners shall  have  the  power  given  in  the  preceding  section. 

Code.  s.  3825;  1872-3,  c.  112,  s.  2. 

2980.  Title  made  by  mayor.  Tlie  mayor  of  any  town,  or  the 
chairman  of  any  board  of  commissioners,  of  any  town  or  county,  is 
fully  authorized  to  make  title  to  the  purchaser  of  any  property  sold 
under  this  chapter. 

Code,  s.  3826;   1872-3,  c.  112,  s.  3. 


2081  TOWXS— A7.  Regulation  of  Buildings.  Cli.  7:5 

XI.     Regulation  of  Buildings. 

2981.  Chief  of  fire  department  appointed,  how;  remuneration. 

It  shall  be  the  fluty  of  the  insurance  commissioner  to  notify  every 
city  and  incorporated  town  where  there  is  no  chief  of  tire  depart- 
ment to  appoint  said  officer  at  once,  and  it  shall  be  also  his  duty  to 
see  that  said  officer  in -every  city  and  incorporated  town  is  reasonably 
remunerated  by  said  city  or  town  for  the  services  required  of  him 
by  law.  Nothing  herein  shall  prevent  any  person  appointed  here- 
under from  holding  some  other  position  in  the  government  of  said 
city  or  town. 

1905,  c.  506,  s.  4. 

Note.     Failure  to  comply  with  tins  spction  n  misdonicunor,  see  s.  .3607. 

2982.  Chief  of  fire  department,  local  inspector  of  buildings: 
must  make  reports;  local  inspectors  appointed.  The  chiefs  of  tire 

departments  hereinbefore  pro\'ided  for  shall  also  be  local  inspectors 
of  buildings  for  the  cities  or  towns  for  which  they  are  appointed  and 
shall  perform  the  duties  required  herein  and  shall  make  all  reports 
required  by  the  insurance  commissioner,  and  shall  make  all  inspec- 
tions and  perform  such  duties  as  may  be  required  by  the  said  insur- 
ance commissioner:  Provided,  however,  that  any  city  or  town  may 
appoint  and  reasonably  remunerate  a  local  inspector  of  buildings,  in 
which  case  the  chief  of  fire  department  shall  be  relieved  of  the  duties 
herein  imposed. 

1905,  c.  506,  s.  5. 

Note.     Failure  to  perform  duties  a  misdemeanor,  see  s.  ,3010. 

2983.  Electrical  inspectors.  The  board  of  akkruien  or  commis- 
sioners of  any  incorporated  city  or  town  may  in  their  discretion  ap- 
point an  electrical  inspector  in  addition  to  the  building  inspector, 
and  when  said  electrical  insiDCctor  is  so  appointed  he  shall  do  and 
perform  all  things  herein  set  out  for  the  building  inspector  to  do 
and  perform  in  regard  to  electrical  wiring  and  certificates  for  same, 
and  in  such  cases  the  building  inspector  shall  be  relieved  of  such 
duties. 

1905,  c.  506,  s.  .33. 

2984.  Deputy  inspector  may  perform  duties.  All  duties  imposed 

by  this  subchapter  upon  the  building  inspector  may  be  jierformed  by 
a  deputy  appointed  by  such  inspector, 
ino.''),  c.  506,  s.  32. 

2985.  Fire  limits  established.  The  board  of  aldermen  or  the 
board   of  commissioners  of  all   incorporated  cities  and   towns  shall 


29S5  TOWXS— AT.  ReguJniion  of  Buildings.  C"li.  73 

pass  ordinances  establishing  and  defining  fire  limits,  which  shall 
include  the  principal  business  portion  of  the  cities  and  towns. 

1905,  c.  506,  s.  7. 

Note.     Failure  to  compl}'  witli  this  section  a  misdemeanor,  see  s.  .3G0S. 

2986.  Building  permits  required;  how  obtained;  inspections. 

Before  a  building  is  begun  the  owner  of  the  property  shall  apply  to 
the  inspector  for  a  permit  to  build.  This  jjermit  shall  be  given  in 
writing  and  shall  contain  a  provision  that  the  building  shall  be  con- 
structed according  to  the  requirements  of  the  building  law,  a  copy 
of  which  shall  accompany  the  permit.  As  the  building  progTesses 
the  inspector  shall  make  as  many  inspections  as  may  be  necessary  to 
satisfy  him  that  the  building  is  being  constructed  according  to  the 
provisions  of  this  law.  As  soon  as  the  building  is  completed  the 
owner  shall  notify  the  inspector,  who  shall  proceed  at  once  to  inspect 
the  said  building  and  determine  whether  or  not  the  flues  and  the 
building  are  properly  constructed  in  accordance  with  the  building 
law.  If  the  building  meets  the  requirements  of  the  building  law  the 
inspector  shall  then  issue  to  the  owner  of  the  building  a  certificate 
which  shall  state  that  he  has  complied  with  the  requirments  of  the 
building  law  as  to  that  particular  bttilding,.  giving  description  and 
locality  and  street  number  if  numbered.  The  inspector  shall  keep 
his  i-ecord  so  that  it  will  show  readily  by  reference  all  such  buildings 
as  are  approved.  The  inspector  shall  report  to  the  insurance  com- 
missioner every  person  neglecting  to  secure  such  permit  and  certifi- 
cate. 

1003,  e.  506,  s.  26. 

2987.  Walls  of  buildings,  how  constructed.   The  walls  of  all 

buildings  in  cities  or  towns  where  this  subchapter  applies,  other  than 
frame  or  wooden  buildings,  shall  be  constructed  of  brick,  iron  or  other 
hard,  incombustible  material,  and  all  reg\ilations  contained  in  the 
law  shall  apply  also  where  walls  or  buildings  are  raised,  altered  or 
repaired. 

1905,  c.  500,  s.  n. 

2988.  Frame  buildings  not  erected  in  fire  limits.  Within  the  fire 

limits  of  cities  and  tmvns  where  this  subcliajitor  applies,  as  established 
and  defined,  no  frame  or  wooden  Imikling  shall  be  hereafter  erected. 
1905,  e.  506,  s.  8. 

2989.  Thickness  of  walls.  The  walls  of  warehouses,  stores,  fac- 
tories, livei'v-stables,  hotels  iir  other  brick  or  stone  buildings  for 
business  purposes  in  cities  or  towns  where  this  subeha]itcr  applies, 

Rev.  Vol.  1—53  897 


29S9  TOWNS— A7.  Reyulalion  of  Buildings.  Ch.  73 

except  fire-proof  buildings  where  the  framework  is  of  steel,  shall 
conform  to  the  following  schedules: 

MINIMUM 
HEIGHT  OF  BUILDING.  THICKNESS   IN  INCHES  OF  WAI.I,. 

1st  2d  3d       J,th       5th 

One-story  building   13 

Two-story  building  17  13 

Three-story  building    17  17  13 

Four-story  building   22  17  17         13 

Five-story  building   26  22  17         17         13 

The  walls  of  all  brick  or  stone  buildings  over  five  stories  high  shall 
be  thirteen  inches  thick  for  the  top  story  and  increasing  four  inches 
in  thickness  for  each  story  below  to  the  ground,  the  increased  thick- 
ness of  each  story  to  be  utilized  for  beam  and  girder  ledges.  All  top 
story  walls  must  extend  throiigh  and  eighteen  inches  above  the  roof 
in  parapets  not  less  than  thirteen  inches  thick  and  coped  with  terra- 
cotta, stone,  cast-iron  or  cement.  The  roof  of  all  buildings  named  in 
this  section  shall  be  of  metal,  slate  or  tile  or  gravel  or  other  standard 
fire-proof  roofing. 

1905,  c.  506,  s.  10. 

2990.  Foundation  of  walls;  openings  in  walls;  how  doors  pro- 
tected. In  all  buildings  mentioned  in  the  preceding  section  there 
shall  be  prepared  a  jjroper  and  substantial  foimdation,  and  no  founda- 
tion shall  be  less  than  one  foot  below  the  exposed  surface  of  the 
ground,  and  no  foundation  shall  rest  on  any  filling  or  made  ground, 
and  the  breadth  of  the  foundation  of  the  several  parts  of  any  build- 
ing shall  be  proportioned  so  that  as  near  as  practicable  the  pressure 
shall  be  equal  on  each  square  foot  of  the  foundation,  and  cement 
mortar  shall  be  used  in  the  masonry  of  all  foundations  exposed  to 
dampness.  No  opening  or  doorway  shall  be  cut  through  a  party  or 
fire  wall  of  a  brick  or  stone  building  without  a  permit  from  the 
inspector,  and  every  such  door  or  opening  shall  have  top,  bottom  and 
sides  of  stone,  brick  or  iron,  shall  bo  closed  by  two  sets  of  standard 
metal-covered  doors  (separated  by  the  thickness  of  the  wall)  hung 
to  rabbeted  iron  frames  or  to  iron  hinges  in  brick  or  stone  rabbets, 
shall  not  exceed  ten  feet  in  height  by  eight  feet  in  width,  and  every 
opening  other  than  a  doorway  shall  be  protected  in  a  manner  satis- 
factory to  the  inspector.  * 

1005,  c.  506.  s.  11. 

2991.  Metalio  stand-pipes  on  what  buildings.    All  business 

buildings  being  more  than  fifty-six  feet  high,  covering  an  area  of 
more  than  five  thousand  superficial  feet,  also  all  buildings  exceeding 
eighty  feet  in  height,  shall  liave  a  four-inch  or  larger  metallic  stand- 


2991  TOWNS— XL  Regulation  of  Buildings.  Ch.  73 

pipe  within  or  near  the  front  wall  extending  above  the  roof  and 
arranged  so  that  engine  hose  can  be  attached  from  the  street,  sneh 
riser  to  have  two  and  one-half-inch  hose  coupling  on  each  floor.  All 
hose  coupling  shall  conform  to  the  size  and  pattern  adopted  by  the 
fire  department. 
1905,  c.  506,  s.  12. 

2992.  Joists;  how  entered  in  walls.  The  end  of  joists  or  beams 
entering  a  brick  wall  shall  be  cut  not  less  than  three-inch  bevel  so  as 
not  to  disturb  the  brickwork  by  any  deflection  or  breaking  of  the 
joists  or  beams.  All  such  joists  or  timbers  entering  a  party  or  divis- 
ion wall  from  opposite  sides  shall  have  at  least  four  inches  of  solid 
brickwork  between  the  ends  of  such  timbers  or  joists. 

1905,  c.  506,  s.  13. 

2993.  Chimneys  and  flues.  All  fireplaces  and  chimneys  in  stone 
or  brick  walls  in  any  building  hereafter  erected  and  any  chimneys 
or  flues  hereafter  altered  or  repaired  shall  have  the  joints  struck 
smooth  on  the  inside,  and  the  firebacks  of  all  fireplaces  hereafter 
erected  shall  be  not  less  than  eight  inches  in  thickness  of  solid  ma- 
sonry, the  chimney  walls  to  be  not  less  than  four  inches  thick,  the  top 
of  the  chimney  to  extend  not  less  than  five  feet  above  the  roof  for 
flat  roofs  and  two  feet  above  the  ridge  of  any  pitched  roof.  No 
woodwork  or  timber  shall  be  placed  under  any  fireplace  or  under 
the  brickwork  of  any  chimney.  All  fioor  beams,  joists  and  headers 
shall  be  kept  at  least  two  inches  clear  of  any  wall  enclosing  a  fire 
flue  or  chimney  breast. 

1905,  c.  506,  s.  14. 

2994.  Chimneys  not  built  on  wood.  No  chimney  shall  be  started 
or  built  u])un  a  beam  of  wood  or  floor,  the  brickwork  in  all  cases  to 
start  from  the  ground  with  proper  foundation.  In  no  case  shall  a 
chimney  be  corbeled  out  more  than  three  inches  from  the  wall,  and  in 
all  cases  corbeling  shall  consist  of  at  least  five  courses  of  brick,  the 
corbeling  to  start  at  least  three  feet  below  the  bottom  of  the  flue. 

1905,  c.  50G,  s.  16. 

2995.  Flues;  how  constructed.  All  flues  shall  extend  at  least 
three  feet  above  the  roof  and  always  above  the  comb  of  the  roof,  and 
shall  be  coped  with  well-burnt  terra-cotta,  stone,  cast  iron  or  cement. 
In  all  buildings  hereafter  erected  the  stone  or  brick  work  of  all  flues 
and  the  chimney  shafts  of  all  furnaces,  boilers,  baker's  ovens,  large 
cooking  ranges  and  laundry  stoves  and  all  fliics  used  for  similar 
purposes  shall  be  at  least  eight  inches  in  thickness,  with  the  excep- 
tion of  smoke  flues,  which  are  lined  with  fire-clay  lining  or  cast 
iron.     These  may  be  four  inches  in  thickness,  but  this  shall  not 


2995  TOWXS— A7.  Begulaflon  of  Buildings.  Cli.   73 

apply  to  metal  stacks  of  boilei'-hoxises  where  pro])erly  constructed 
and  arranged  at  a  safe  distance  from  wood  or  other  iniflanmiable  ma- 
terial. All  buildings  hereafter  erected  shall  have  smoke  Hues  con- 
structed either  in  walls  of  eight  inches  thickness  or  with  smoke  Hues 
lined  with  cast  iron  or  fire-clay  lining,  the  walls  of  which  may  bo  four 
inches  in  thickness,  the  lining  to  commence  at  the  b<ittom  of  the 
flue  or  at  the  throat  of  the  fireplace  and  be  carried  u]i  continuously 
the  entire  height  of  the  flue.  All  joints  shall  be  closely  fitted  and 
the  lining  shall  be  built  in  as  the  flue  or  flues  are  carried  up.  All 
chimneys  which  shall  be  dangerous  in  any  manner  wliatever  shall  be 
repaired  and  made  safe  or  taken  down. 
1905,  c.  506,  s.  17. 

2996.  Hanging  flues.  Hanging  flues  (that  is,  for  the  reception  of 
stovei)i]:ies  built  otherwise  than  from  the  ground)  shall  be  allowed 
only  when  built  according  to  the  following  specifications:  The  flue 
shall  be  built  four  inches  thick  of  the  best  hard  brick,  laid  on  flat 
side,  never  on  edge,  extending  at  least  three  feet  above  the  roof 
and  always  above  the  comb  of  the  roof,  lined  on  the  inside  with 
cast  iron  or  fire-clay  flue  lining  from  the  bottom  of  the  flue  to  the 
extreme  height  of  the  flue,  and  ends  of  all  such  lining  pipes  being 
made  to  fit  close  together  and  the  lining  pipe  being  built  in  as  the 
flue  is  carried  up.  If  the  flue  starts  at  the  ceiling  and  receives  the 
stovepipe  vertically  it  shall  be  hung  on  iron  stirrups,  bent  to  come 
flush  with  the  bottom  of  ceiling  joints.  Flues  not  lined  as  above 
shall  be  built  from  the  ground  eight  inches  thick  of  the  best  hard 
brick  with  the  joints  struck  smooth  on  the  inside. 

1905,  c.  506,  s.  18. 

2997.  Flues  cleaned  on  completion  of  building.   The  flues  of 

every  building  shall  lic  properly  cleaned  and  all  rubbish  removed  and 
the  flues  left  smooth  on  the  inside  upon  the  completion  of  the  build- 
ing. 

1905,  e.  506,  s.  19. 

2998.  No  stovepipe  to  pass  through  wood;  penalty  for  viola- 
tion of  this  section.  Xo  stovc])iiK'  slmll  pass  Ihrdugli  ;uiy  roof,  win- 
dow or  weatherboarding,  and  no  stovciii]X'  in  any  building  with 
wood  or  combiistible  floors,  ceiling  or  partitions  shall  enter  any  flue 
unless  such  pipe  shall  be  at  least  tAvelve  inches  from  such  floors, 
ceiling  or  partitions,  unless  same  is  ]iroperly  protected  by  metal 
shield,  in  Avhich  case  the  distance  shall  not  be  less  than  six  inches. 
In  all  cases  where  stovepipes  ]iass  through  wooden  jiartitions  of 
any  kind  or  other  woodwork  they  shall  be  giiarded  by  either  a 
double  collar  of  metal  with  at  least  three  inches  air  space  and  hoh^s 


2998  TOWXS— Z/.  Begidation  of  Buildings.  Ch.  73 

for  ventilation  or  by  a  soapstone  or  burnt-clay  ring  not  less  than  one 
inch  in  thickness  extending  through  the  partition  or  other  wood- 
work. If  any  chimney,  flue  or  heating  apparatus  on  any  premises 
shall,  in  the  opinion  of  the  inspector,  endanger  the  premises,  the 
inspector  shall  at  once  notify  in  writing  the  owner  or  agent  of  said 
premises.  If  such  owner  or  agent  fails  for  a  period  of  forty-eight 
hours  after  the  service  of  said  notice  upon  him  to  make  such  chim- 
ney, flue  or  heating  apparatus  safe  he  shall  be  liable  to  a  fine  as  pre- 
scribed in  this  subchapter. 

lOO.J,  c.  506,  s.  20. 

2999.  Height  of  chimneys  for  foundries.  Iron  cupola  or  other 

cliinuieys  of  fdinidries  sliall  extend  at  least  ten  feet  above  the  highest 
point  of  any  roof  within  a  radius  of  fifty  feet  of  such  cujiola  or 
chimney. 

1005,  c.  506.  s.  22. 

3000.  Steam  pipes  not  placed  within  two  inches  of  wood.  Xo 

steam  pipes  shall  lie  placed  within  two  inches  of  any  timber  or  wood- 
work unles,s  the  timber  or  woodwork  is  protected  by  a  metal  shield ; 
then  the  distance  shall  not  be  less  than  one  inch.  All  steam  ]3ipes 
])assing  through  floors  and  ceilings  or  laths  and  plastered  partitions 
shall  be  protected  by  a  metal  tube  one  inch  larger  in  diameter  than  the 
pipe,  and  the  space  shall  be  filled  in  with  mineral  wool,  asbestos  or 
other  incombustible  material. 
1905,  e.  .506.  s.  21. 

3001.  Electric  wiring  of  houses,  how  done;  fees  for  inspection. 

The  electric  wiring  of  houses  or  buildings  for  lighting  or  for  other 
purposes  shall  conform  to  the  regulations  prescribed  by  the  organiza- 
tion known  as  National  Eoard  of  Fire  Underwriters.  In  order 
to  protect  the  ju-operty  of  citizens  from  the  dangers  incident  to 
defective  electric  wiring  of  buildings,  it  shall  be  unlawful  for  any 
firm  or  eorjioration  to  allow  any  electric  current  for  the  ]3urpose 
of  illuminating  any  building  belonging  to  any  person,  firm  or 
corporation  to  be  turned  on  without  first  having  had  an  inspection 
made  of  the  wiring  by  the  building  inspector  and  having  received 
from  the  inspector  a  certificate  a])proving  the  wiring  of  such  build- 
ing. It  shall  be  unlawful  for  any  person,  firm  or  cor]ioration  en- 
gaged in  the  business  of  selling  electricity  to  furnish  any  electric 
current  for  use  for  illuminating  pui'poses  in  any  building  or  build- 
ings of  any  ])er.son,  firm  or  corporation,  unless  the  said  building  or 
buildings  have  been  first  inspected  by  the  inspector  of  buildings  and 
a  certificate  given  as  above  provided.  The  fee  that  shall  be  allowed 
said  inspector  of  buildings  fiu-  the  work  of  such  insjiection  of  elec- 


3001  TOWNS— X/.  Eegulation  of  Bulldin;/s.  Ch.   73 

trical  wiring  shall  be  one  dollar  for  each  building  inspected,  to  be 
paid  by  the  person  applying  for  the  inspection. 

1905,  c.  506,  s.  23. 

3002.  Quarterly  inspection  of  buildings.  Once  in  every  three 
months  the  local  inspector  of  buildings  shall  make  a  personal  inspec- 
tion of  every  building  within  the  fire  limits,  and  shall  especially 
inspect  the  basement  and  garret,  and  he  shall  make  such  other  inspec- 
tions as  may  be  required  by  the  insurance  commissioner  and  shall 
report  to  the  insurance  commissioner  all  defects  found  by  him  in 
any  building  upon  a  blank  furnished  him  by  the  insurance  commis- 
sioner. 

1905,  c.  506,  s.  25. 

3003.  Annual  inspection  of  buildings.    At  least  once  in  each 

and  every  year  the  local  inspector  shall  make  a  general  inspection  of 
all  buildings  in  the  corporate  limits  and  ascertain  if  the  provis- 
ions of  this  subchapter  are  complied  with,  and  the  local  inspector  alone 
or  with  the  insurance  commissioner  or  his  deputy  shall  at  all  times 
have  the  right  to  enter  any  dwelling,  store  or  other  building  and 
premises  to  inspect  same  without  molestation  from  any  one. 
1905,  c.  506,  s.  29. 

3004.  Records  of  local  inspectors.  The  local  inspector  shall 
keep  the  following  record :  A  book  indexed  and  kept  so  that  it  M'ill 
show  readily  by  reference  all  such  buildings  as  are  approved ;  that  is, 
name  and  residence  of  owner,  location  of  building,  how  it  is  to  be 
occupied,  date  of  inspection,  what  defects  found  and  when  remedied 
and  date  of  building  certificate ;  also  a  record  which  shall  show  the 
date  of  every  general  inspection,  defects  discovered  and  when  reme- 
died; also  a  record  which  shall  show  the  date,  circumstances  and 
origin  of  every  fire  that  occurs,  name  of  owner  and  occupant  of  the 
building  in  which  fire  originates,  the  kind  and  value  of  property  de- 
stroyed or  damaged  ;  al.so  a  record  of  inspection  of  electrical  wiring 
and  certificate  issued. 

1905,  c.  .506,  s.  30. 

3005.  Reports  of  local  inspectors.  The  local  inspector  shall  re- 
port before  tlio  fifteenth  of  j\Iay  of  each  and  every  year  the  number 
and  dates  of  general  and  quarterly  inspections  during  the  year  end- 
ing the  first  day  of  April  upon  blanks  furnished  by  the  insurance 
commissioner,  and  furnish  such  other  information  and  make  such 
other  reports  as  shall  be  called  for  by  the  insurance  commissioner. 

1905,  c.  506,  s.  31. 

902 


3006  TOWNS— Z7.  Regulation  of  Buildings.  Ch.  .73 

3006.  Fees  of  inspector.  For  every  new  building  inspected  the 
local  inspector  shall  charge  and  collect  an  inspection  fee  before 
issuing  the  building  certificate  as  follows :  Two  dollars  for  each  mer- 
cantile store-room,  livery-stable  or  building  for  manufacturing  of 
one  story  and  fifty  cents  for  each  additional  story,  and  for  other 
buildings  twenty-five  cents  per  room:  Provided,  the  inspection  fee 
shall  in  no  case  exceed  five  dollars. 

1905,  c.  506,  s.  27. 

3007.  Ashes,  etc.,  how  cared  for.  Ashes  shall  be  removed  in 
metal  vessels  and  unless  moved  by  city  drays  shall  be  stowed  in  brick, 
stone  or  metal  receptacle  or  removed  by  owner  to  a  place  not  less  than 
fifteen  feet  from  any  wooden  building  or  fence.  Oily  rags  and 
waste  shall  be  kept  in  closed  metal  vessels  and  shall  be  removed  from 
building  daily.  Unslacked  lime  shall  not  be  left  exposed  to  the 
weather  in  or  near  a  building.  Stoves  or  ranges  shall  not  be  nearer 
to  unprotected  woodwork  than  two  feet  and  the  floors  under  them 
shall  be  protected  by  metal  or  sand  box. 

1905,  e.  506,  s.  24. 

3008.  Ordinances  not  repealed;  ordinances  passed  to  enforce 

the  law.  No  provision  of  this  sulichajiter  shall  be  held  to  repeal  the 
power  of  any  incorporated  city  or  town  to  make  and  enforce  any 
further  rules  and  regulations  under  the  powers  granted  in  their 
several  charters,  and  said  cities  and  towns  may  pass  ordinances  for 
the  enforcement  of  any  provision  of  this  subchapter. 
1905,  e.  506,  s.  34. 

3009.  Defects  in  buildings  corrected.  Whenever  the  local  in- 
spector finds  any  defects  in  any  new  building,  or  finds  that  said 
building  is  not  being  constructed,  or  has  not  been  constructed  in 
accordance  with  the  provisions  of  this  law,  it  shall  be  his  duty  to 
notify  the  owner  of  said  building  of  the  defects  or  the  failure  to  com- 
ply with  this  law,  and  the  said  owner  or  builder  shall  immediately 
remedy  the  defect  and  make  the  said  building  comply  with  the  law. 
The  owner  or  builder  may  appeal  from  the  decision  of  the  local 
inspector  to  the  insurance  commissioner. 

1905,  e.  506,  s.  28. 

3010.  Unsafe  buildings  condemned.  Every  building  which  shall 

appear  to  the  inspector  to  be  especially  dangerous  in  case  of  fire  by 
reason  of  bad  condition  of  walls,  overloaded  floors,  defective  con- 
struction, decay  or  other  causes  shall  be  held  to  be  unsafe,  and  the 
inspector  shall  afiix  a  notice  of  the  dangerous  character  of  the  sti-uc- 
ture  to  a  conspicuous  place  on  the  exterior  wall  of  said  building.  No 
building  now  or  hereafter  built  shall  be  altered  until  it  has  been  ex- 


aOlO  TOWNS— A7.  UeguJation  vf  Buildings.  Ch.   73 

amined  and  approved  by  the  insjjector  as  being  in  a  good  and  safe 
condition  to  be  altered  as  ])roposed,  and  the  alteration  so  made  shall 
confonn  to  the  provisions  of  the  law. 

1005,  c.  500,  s.  15. 

301 1.  To  what  towns  applies;  how  towns  exempted;  discrimina- 
tion by  insurance  companies.  This  sulxhai)ter  shall  apjilv  only  to 
incorporated  cities  and  towms  of  over  one  thousand  inhabitants,  ac- 
cording to  any  last  United  States  census.  It  shall  be  the  duty  of  the 
insurance  commissioner  to  send  copies  of  this  subchaiitcr  to  the 
mayor  and  chief  of  the  fire  department  of  every  city  or  town  affected 
thereby,  and  the  board  of  aldermen  or  commissioners  of  every  such 
city  or  town  may,  before  the  first  day  of  July,  one  thousand  nine  hun- 
dred and  five,  by  resolution,  exempt  such  city  or  town  from  the  oiiera- 
tion  of  this  subchapter.  Before  passing  such  exempting  resolution 
the  said  board  shall  give  the  insurance  connnissioner  fifteen  days" 
notice  of  its  intention  to  so  exempt  such  city  or  town.  After  the 
passage  of  such  resolution  and  filing  of  a  copy  thereof  with  the  insur- 
ance commissioner  such  city  or  town  shall  be  fully  and  in  all  respects 
exempt  from  the  operation  of  this  STibchapter.  The  insurance  com- 
missioner shall  cause  a  certified  copy  of  this  subcha])tcr  to  be  mailed 
to  tbe  mayor  or  chief  oificer  of  every  city  or  town  in  this  state  to 
which  it  may  apply  within  thirty  days  after  its  ratification,  and  it 
shall  be  unlawful  for  any  insiirance  company  to  make  any  discrimina- 
tion in  rates  or  otherwise  against  any  city  or  town  which  shall  ex- 
empt itself  from  the  provisions  of  this  subchajjter. 

1905,  c.  500,  s.  35. 


CHAPTER  74. 
TRADEMARKS. 

Sections. 
I.     Geneinllv.  .S012— 3022 

II.     Timber.  '  3023—3027 

III.     Live  stock.  3028 

I.     Geneeai.t.v. 

3012.   Trademarks,  labels,  etc.,  filed  for  registry.   Tt  shall  he 

laM-ful  for  any  ^lerson  to  adujit  for  liis  juMlcction  and  file  for  regis- 
try, as  in  this  chapter  })rovided,  any  label,  trademark,  term  or  design 
that  has  been  used  or  is  intended  to  be  used  for  the  purpose  of 
designating,  making  known  or  distinguishing  any  goods,  wares,  mcr- 


3012  TEADEMARKS— /.   Generally.  Ch.  74 

chandise  or  products  of  labor  th^t  have  been  or  may  be  wholly  or 
partly  made,  manufactured,  produced,  prepared,  packed  or  put  on 
sale  by  any  such  person,  or  to  or  upon  which  any  work  or  labor  has 
been  applied  or  expended  by  any  such  person,  or  by  any  member 
of  any  corporation  that  has  adopted  and  filed  for  registry  any  such 
label,  trademark,  term  or  design  as  aforesaid,  or  announcing  or  indi- 
cating that  the  same  have  been  made  in  whole  or  in  part  by  any 
such  jierson  or  corporation,  or  by  any  member  thereof. 
I00:i,  c.  271. 

3013.  Property  rights  protected  by  filing  for  registry.  When- 
ever any  person  shall  adopt  and  file  for  registry  any  label,  trade- 
mai'k,  term  or  design  pursuant  to  the  provisiuns  of  this  chapter, 
the  property,  privileges,  rights,  remedies  and  interests  in  and  to 
any  such  label,  trademark,  term  or  design,  and  in  and  to  the  use  of 
same,  provided  or  given  by  this  chapter  to,  or  otherwise  conferred 
upon  or  enjoyed  by,  the  person  filing  the  same  for  the  registry,  shall 
be  fully  and  completely  secured,  preserved  and  protected  as  the 
property  of  those  entitled  to  the  same  before  any  siich  label,  trade- 
mark, term  or  design  has  been  actually  applied  to  any  goods,  wares, 
merchandise,  or  product  of  labor,  and  put  upon  the  market  for  sale 
or  otherwise,  and  before  any  use  or  appropriation  of  any  such  label, 
trademark,  term  or  design  has  been  made  in  connection  with  any 
such  goods,  wares,  merchandise  or  product  of  labor,  as  well  as  after 
the  same  has  been  used  or  applied  to  designate,  make  known  or  dis- 
tinguish any  such  goods,  wares,  merchandise,  or  pi-oduct  of  labor 
and  they  have  been  put  upon  the  market. 

1903,  c.  271,  s.  2. 

3014.  Filed  with  secretary  of  state;  affidavit;  fees.  Any  i^er- 

son  who  has  heretofore  adopted  and  used,  or  shall  hereafter  adopt 
and  use  any  label,  trademark,  term  or  desig-n,  as  in  this  chapter  pro- 
vided, may  file  the  same  for  registry  in  the  office  of  the  secretary  of 
state,  by  leaving  two  copies,  fac  similes  or  counterparts  thereof, 
with  the  said  secretary,  and  filing  therewith  a  statement  in  the  form 
of  an  affidavit,  subscribed  and  sworn  to  by  any  such  person,  or  by 
any  officer,  agent  or  attorney  if  a  corporation,  specifying  the  person 
by  whom  any  such  label,  trademark,  term  or  design  is  filed,  and  the 
class  or  character  of  the  goods,  wares,  merchandise  or  products  of 
labor  to  Avhich  the  same  has  been,  or  is  intended  to  be  appropriated 
or  applied,  and  that  the  person  so  filing  the  same  has  the  right  to 
the  use  of  the  said  label,  trademark,  term  or  design,  and  that  no 
other  person,  firm  or  corporation  has  the  right  to  such  use,  either 
in  the  identical  form  or  in  any  such  near  resemblance  thereto  as 
may  be  calculated  to  deceive,  without  the  permission  or  authority 


sou  TRADEMARKS—/.   Generally.  Ch.  7-i 

of  the  person  tiling'  the  same,  ancl  that  tlie  copies,  fae  similes  or 
connterparts  tiled  therewith,  are  true  and  correct  copies,  fac  similes 
or  counterparts  of  the  genuine  label,  trademark,  term  or  desigii  of 
the  person  tiling  the  same,  and  there  be  paid  for  such  registry  a  fee 
of  one  dollar  to  the  secretary  of  state  for  the  use  of  the  state,'  and 
the  same  recording  fees  required  by  law  for  recording  certificate 
of  organization  of  corporations. 
1903,  e.  271,  s.  3. 

3015.  Registration;  certified  copies  evidence;  fees.  The  secre- 
tary of  state,  upon  the  filing  of  any  such  label,  trademark,  term  or 
desigti,  that  is  not  in  conflict  with  tlie  next  section,  shall  register  the 
same,  and  shall  deliver  to  the  person  filing  the  same  as  many  certi- 
fied copies  thereof,  with  his  certificate  of  such  registry,  as  any  such 
person  may  request,  and  for  every  such  copy  and  certificate  there 
shall  be  paid  to  the  secretary  of  state,  for  the  Tise  of  the  state,  a  fee 
of  one  dollar;  and  any  such  certified  copy  and  certificate  shall  be 
admissible  in  evidence  and  competent  and  sutficient  proof  of  the 
adoption,  filing  and  registry  of  any  such  label,  trademark,  term  or 
design,  by  any  such  person  in  any  action  or  judicial  proceeding  in 
any  of  the  courts  of  this  state,  and  of  due  comjiliancc  with  the  pro- 
visions of  this  chapter. 

1903,  c.  271,  s.  4. 

3016.  How  transferred.  The  right  to  use  any  registered  label, 
trademark,  term  or  design  shall  be  granted  only  by  an  instrument 
in  writing,  duly  filed  in  the  oflice  of  the  secretary  of  state.  The  fees 
for  recording  or  filing  such  transfer  and  issuing  copies  thereof  shall 
be  the  same  as  for  filing  such  label,  trademark,  term  or  design. 

3017.  Similar  trademarl<s  refused  registration.    It  shall  not 

be  lawful  for  the  secretary  of  state  to  register  for  any  person  any 
label,  trademark,  term  or  design  that  is  in  the  identical  form  of  any 
other  label,  trademark,  term  or  design  theretofore  filed  by  any  other 
person,  or  that  bears  any  such  near  resemblance  thereto  as  may  be 
calculated  to  deceive,  or  that  would  be  liable  to  be  mistaken  therefor. 
1903,  c.  271,  s.  5. 

3018.  Penalty  for  securing  fraudulent  registration.  Any  per- 
son who  shall  file  or  procure  the  filing  and  regislry  of  any  label, 
trademark,  term  or  design  in  the  office  of  the  secretary  of  state 
under  the  provisions  of  this  chapter,  by  making  any  false  or  fra\id- 
ulent  representations  or  declarations,  with  fraiidulent  intent,  shall 
be  liable  to  pay  any  damages  sustained  in  consequence  of  any  such 
registry,  to  be  recovered  by  or  in  behalf  of  the  party  injured  thereby. 

1903,  e.  271,  s.  5. 

906 


3019  TRADEMAEKS— /.   Generally.  Cli.   74 

3019.  Use  of  counterfeit  trademarks  unlawful.  Whenever  auy 

person  has  adopted  and  tiled  for  rcgisti-y  any  label,  trademark,  term 
or  design,  as  provided  by  law,  and  the  same  shall  have  been  regis- 
tered pursuant  to  law,  it  shall  be  unlawful  for  any  other  person  to 
manufacture,  use,  sell,  offer  for  sale,  or  in  any  way  utter  or  circu- 
late any  coimterfeit  or  imitation  of  any  such  label,  trademark,  term 
or  design,  or  have  in  possession,  with  inteiit  that  the  same  shall  be 
sold  or  disposed  of,  any  goods,  wares,  merchandise  or  product  of 
labor  to  which  or  on  which  any  counterfeit  or  imitation  of  any 
such  label,  trademark,  term  or  design  is  attached,  affixed,  printed, 
stamped,  impressed  or  displayed,  or  to  sell  or  dispose  of,  or  offer  to 
sell  or  dispose  of,  or  have  in  possession  with  intent  that  the  same 
shall  be  sold  or  disposed  of,  any  goods,  wares,  merchandise,  or  pro- 
duct of  labor  contained  in  any  box,  case,  can  or  package  to  which  or 
on  which  any  such  counterfeit  or  imitation  is  attached,  affixed, 
printed,  stamped,  impressed  or  displayed. 
1903,  c.  271,  s.  6. 

3020.  Unauthorized  use  unlawful;  use  under  license.  Whenever 

any  person  has  adopted  and  registered  any  label,  trademark,  term 
or  design,  as  provided  by  law,  it  shall  be  unlawful  for  any  other 
person  to  make  any  use,  sale,  offer  for  sale  or  display  of  the  genuine 
label,  trademark,  term  or  design  of  any  such  person  filing  the  same, 
or  to  have  any  such  genuine  label,  trademark,  term  or  design  in 
possession  with  intent  that  the  same  shall  be  used,  sold,  offered  for 
sale,  or  displayed,  or  that  the  same  shall  be  applied,  attached  or 
displayed  in  any  manner  whatever  to  or  on  any  goods,  wares  or  mer- 
chandise, or  to  sell,  offer  to  sell,  or  dispose  of,  or  have  in  possession 
with  intent  that  the  same  shall  be  sold  or  disposed  of,  any  goods, 
wares  or  merchandise  in  any  box,  case,  can  or  package  to  or  on  which 
any  such  genuine  label,  trademark,  term  or  design  of  any  such  per- 
son is  attached,  affixed,  or  displayed,  or  to  make  any  use  whatever 
of  any  siich  genuine  label,  trademark,  term  or  design,  without  first 
obtaining  in  every  such  case  the  license  of  the  person  adopting,  filing 
and  registering  the  same;  and  any  such  license  may  be  revoked  and 
terminated  at  any  time  upon  notice,  and  thereafter  any  use  thereof 
shall  be  unlawful. 
1903,  c.  271,  s.  7. 

3021.  Remedies;  damages;  profits;  destruction  of  counter- 
feits. Any  person  who  has  registered  any  label,  trademark,  term  or 
design  under  the  provisions  of  this  chapter  shall  have  a  right  of  ac- 
tion against  any  person  for  the  unauthorized  use  of  such  label,  trade- 
mark, term  or  design,  and  the  courts  shall  by  appropriate  remedies 
prevent  the  unauthorized  or  unlawful  use,  manufacture  or  display 


3021  TRADEMARKS—/.   GcncraU,/.  Cli.  74 

of  any  label,  trademark,  term  or  design,  or  tlic  imitation  or  counter- 
feit thereof,  or  the  sale,  disposal  or  display  of  any  articles  of  prop- 
erty on  which  any  counterfeit  or  imitation  of  any  registered  label, 
trademark,  term  or  design,  or  on  which  any  genuine  label,  trade- 
mark, term  or  design  may  be  used  or  displayed  without  proper 
authority;  and  shall  further  secure  and  protect  all  jiersons  in  all 
rights  of  property  and  interest  which  they  may  have  in  any  label, 
trademark,  term  or  design  registered  under  this  chapter ;  and  the 
court  shall  award  to  the  plaintiff  any  and  all  damages  resulting  from 
any  such  wrongful  use  of  any  such  label,  trademark,  term  or  design; 
and  any  coimterfeit  or  imitation  of  any  labels,  trademarks,  terms, 
or  designs  and  any  die,  engTaving,  mould  or  mechanical  device  or 
the  manufacture  of  the  same  in  the  possession  or  under  the  control 
of  the  defendant,  shall  be  delivered  up  to  an  officer  of  the  coiirt,  to 
be  destroyed,  and  that  any  such  genuine  labels,  trademarks,  terms 
or  designs,  in  the  possession  or  under  the  control  of  any  sucli  defend- 
ant shall  be  delivered  to  the  plaintiff. 

1903.  c.  271,  s.  8. 

3022.  Additional  penalty,  in  addition  to  any  other  rights,  reme- 
dies or  penalties  provided  by  this  chapter,  and  as  concurrent  there- 
with, any  person  who  shall  violate  any  of  the  provisions  of  this 
chapter  shall  be  liable  to  a  penalty  of  two  hundred  dollars,  to  be 
recovered  by  any  person  ^\■ho  has  filed  any  such  label,  trademark, 
term  or  design. 

1903,  e.  271,  s.  9. 

II.      Timber. 

3023.  Who  may  adopt.  Any  ])erson  dealing  in  timber  in  any 
form  shall  be  known  as  a  timber  dealer  and  as  such  may  adopt  a 
trademark,  in  the  manner  and  with  the  effect  in  tliis  sulichajiter  pi'O- 
vided. 

1903,  c.  201,  s.  1. 

3024.  How  adopted,  registered  and  published.    Every  such 

<lcaler  desiring  to  adopt  a  trailemark  may  do  so  l)y  the  execution 
of  a  writing  in  form  and  effect  as  follows: 

TUADEMAUK. 

Notice  is  hereby  givi'ii  tliat  I  (or  we,  ptc,  as  the  case  niny  be)  have  adopted 
the  following  trademark,  to  be  used  in  my  (or  our,  etc.)  business  as  timber 
dealer  (or  dealers),  lo-wit :  (Here  insert  the  words,  letters,  figures,  etc.,  consti- 
tuting the  trademark,  or  if  it  be  any  device  other  than  words,  letters  or  figures, 
insert  a  fac  simile  thereof). 

Dated  this day  of   19  .  . .  .\ B 


3024  TRADEMARKS—//.   Timber.  Ch.  74 

Sufh  writing  shall  be  acknowledged  or  proved  for  record  in  tlic 
same  manner  as  deeds  are  acknowledged  or  proved,  and  shall  be 
registered  in  the  office  of  the  register  of  deeds  of  the  county  in 
which  the  principal  office  or  place  of  business  of  such  timber  dealer 
may  be,  in  a  book  to  be  kept  for  that  purpose  marked  "Registry  of 
Timber  Marks,"  also  in  office  of  secretary  of  state,  and  a  copj'  thereof 
shall  be  published  at  least  once  in  each  week  for  four  successive 
weeks  in  some  newspaper  printed  in  such  county,  or  if  there  be  no 
such  newspaper  printed  therein,  then  in  some  newspaper  of  general 
circulation  in  such  county. 

1889.  c.  142;  1003,  c.  261,  s.  2. 

3025.  Property  in;  how  used.  Every  trademark  so  adopted  shall, 
from  the  date  thereof,  be  the  exclusive  property  of  the  person  adopt- 
ing the  same.  The  proprietor  of  such  trademark  shall,  in  using  the 
same,  cause  it  to  be  plainly  stamped,  branded  or  otherwise  im- 
pressed upon  each  piece  of  timber  upon  which  the  same  is  placed. 

1889,  e.  142;  1903,  c.  261,  ss.  3,  4. 

3026.  Branding  with,  effect  of.  When  timber  is  purchased  by 
the  pi'oprietor  of  any  such  trademark,  and  the  said  trademark  is 
placed  thereon  as  hereinbefore  provided,  such  timber  shall  thence- 
forth be  deemed  the  property  of  such  purchaser,  without  any  other 
or  further  delivery  thereof,  and  siich  timber  shall  thereafter  be  at 
the  risk  of  the  purchaser,  unless  otherwise  provided  by  contract  in 
writing  between  the  parties. 

1889,  e.  142;  1903,  c.  261,  s.  6. 

3027.  Branding  with,  evidence  of  ownership.    In  any  action, 

suit  or  contest,  in  which  the  title  to  any  timber,  upon  which  any 
trademark  has  been  placed  as  aforesaid,  shall  come  in  question,  it 
shall  be  presumed  that  such  timber  was  the  property  of  the  proprie- 
tor of  such  trademark,  in  the  absence  of  satisfactory  proof  to  the 
contrary. 

1003,  c.  201,  s.  7. 


Note.     For  unlawful  use  of  timber  trademark,  see  ss.  38.54-3856. 
For  buying  branded  logs,  see  s.  3853. 

III.      Live   Stock. 

3028.  Owners  of  stock  to  register  brand  or  marl<.  Every  per- 
son who  hath  any  horses,  cattle,  hogs  or  sheep  may  have  an  earmark 
or  brand  different  from  the  earmark  or  brand  of  all  other  persons, 
which  he  shall  record  with  the  clerk  of  the  board  of  commissioners 
of  the  county  where  his  horses,  cattle,  hogs  or  sheep  are;  and  he 


3028 


TRADEMARKS— 7/7.  Live  Slock. 


Ch.   T-t 


may  brand  all  horses  eighteen  months  old  and  upwards  with  the  said 
brand,  and  earmark  all  his  hogs  and  sheep  six  months  old  and 
upwards  with  the  said  earmark;  and  earmark  or  brand  all  his  cattle 
twelve  months  old  and  upwards ;  and  if  any  dispute  shall  arise  about 
any  earmark  or  brand,  the  same  shall  be  decided  by  the  record 
thereof. 

Code,  s.  2317;  R.  C,  c.  17,  s.  1. 


CHAPTER  75. 
WAREHOUSEMEN. 


I.     Public, 
II.     Tobacco  warehouse  charges, 


Sections. 
3029—3041 
3042—3044 


I.     Public   Waeehousemen. 

3029.  Who  may  become.  Any  corporation  organized  under  the 
laAvs  of  this  state  and  whose  charter  authorizes  it  to  engage  in 
the  business  of  a  warehouseman,  may  become  a  public  warehouse- 
man and  authorized  to  keep  and  maintain  public  warehouses  for 
the  storage  of  cotton,  goods,  wares  and  other  merchandise  as  herein- 
after prescribed  and    upon  giving  the  bond  hereinafter  required. 

1901,  c.  678. 

3030.  Bond  to  clerk  of  court;  penal  sum.  Every  such  corpora- 
tion so  organized  under  the  preceding  section,  except  such  as  shall 
have  a  capital  stock  of  not  less  than  five  thousand  dollars,  to  become  a 
public  warehouseman  shall  give  bond  in  a  reliable  bonding  or  surety 
company  payable  to  the  state  of  ISTorth  Carolina  in  an  amoimt  not 
less  than  ten  thousand  dollars,  to  be  approved,  filed  with  and  re- 
corded by  the  clerk  of  the  superior  court  of  the  county  in  which  the 
warehouse  is  located,  for  the  faithful  performance  of  the  duties  of  a 
public  warehouseman;  but  if  such  corporation  has  a  capital  stock  of 
not  less  than  five  thousand  dollars,  then  it  shall  not  be  required  to 
give  the  bond  mentioned  in  this  section. 

1901,  c.  678,  s.  2;  1905,  c.  540. 

3031.  Injured  person  may  sue  on  bond.  Whenever  such  ware- 

hiiiiscnian  fails  to  perform  any  duiy  or  violates  any  of  the  provis- 
ions of  this  chapter,   any  person  injured  by  such  failure  or  viola- 


3031  WAEEHOUSEMEN— /.  Public.  Cli.  75 

tion  may  bring  an  action  in  his  name  and  to  his  own  use  in  any  court 
of  comjjetent  jurisdiction  on  the  bond  of  said  warehouseman. 
1901,  c.  678,  s.  3. 

3032.  Insurance  on  stored  property;  storage  receipts.  Every 

such  warehuuseman  shall,  when  rc(|uestod  tliereti)  in  writing  by  a 
party  placing  property  with  it  on  storage,  cause  such  property  to 
be  insured ;  every  such  warehouseman  shall,  except  as  hereinafter 
provided,  give  to  each  person  depositing  property  with  it  for  storage 
a  receipt  therefor,  which  shall  be  negotiable  in  form  and  shall  de- 
scribe the  property,  distinctly  stating  the  brand  or  distinguishing 
marks  upon  it,  and  if  such  propierty  is  grain,  tlie  quantity  and 
inspected  grade  thereof.  The  receipts  shall  also  state  the  rate  of 
charges  for  storing  the  property  and  amoimt  and  rate  of  any  other 
charge  thereon,  and  also  the  amount  of  the  bond  and  name  of  the 
company  in  which  the  bond  is  taken,  given  to  the  said  clerk  of  the 
court  as  hereinabove  provided:  Provided,  that  every  such  warehouse- 
man shall,  upon  request  of  any  person  depositing  property  with  it  for 
storage,  give  to  such  person  its  non-negotiable  receipt  therefor,  which 
receipt  shall  have  the  words  "Non-negotiable"  plainly  written, 
printed  or  stamped  on  the  face  thereof;  and  provided,  that  the 
assignment  of  said  non-negotiable  receipt  shall  not  be  eifective  until 
recorded  on  the  books  of  the  warehousemen  issiiing  it.  All  ware- 
house receipts  issued  by  warehousemen  complying  with  the  provis- 
ions of  this  chapter  shall  be  valid  and  binding  in  the  hands  of  all 
bona  fide  holders  for  value  without  registration. 
1901,  c.  678,  s.  4;  1905,  c.  540,  s.  2. 

3033.  Title  passes  with  storage  receipt.   The  title  to  cotton, 

goods,  merchandise  and  chattels  stored  in  public  warehouses  shall 
pass  to  a  purchaser  or  pledgee  by  the  endorsement  and  delivery  to 
him  of  the  warehouseman's  receipt  therefor,  signed  by  the  person 
to  whom  such  receipt  was  originally  given  or  by  the  endorsee  of  such 
receipt,  imless  such  receipt  is  non-negotiable. 
1901,  c.  678,  s.  5. 

3034.  Title  when  goods  are  mixed.  When  grain  or  other  prop- 
erty is  stored  in  public  warehouses  in  such  manner  that  different 
lots  or  ])arcels  are  mixed  together,  or  that  the  identity  can  not  be 
accurately  preserved,  the  warehouseman's  receipt  for  any  such  por- 
tion of  grain  or  property  shall  be  deemed  a  valid  title  to  so  much 
thereof  as  is  designated  in  receipt  witliout  regard  to  separation  or 
identification. 

1901,  c.  678,  s.  6. 


30:i:.  WAKEIIOrSKMEX— /.  I'uhlic.  Ch.   75 

3035.  Books  of  account  kept;  open  for  inspection.  Every  sucli 

waivliiinsfiiiaii  sliall  kcoj)  a  Imok  in  wliidi  shall  lie  cnti-Ted  an  aceouiit 
of  all  its  transaftions  relating-  to  warehonsine:,  storing  and  insuring 
cotton,  goods,  wares  and  mcrcliandisc,  and  to  tiie  issuing  of  receipts 
therefor,  which  books  shall  be  open  to  the  iiisjiection  of  any  jiorson 
actually  interested  in  the  property  to  which  such  entry  relates, 
moi,  c.  GTS.  s.  7. 

3036.  Sale  of  property  for  storage  charges  one  year  overdue; 

proceeds;  notice  of  sale.  Every  such  public  warehouseman  which 
shall  have  in  its  i)()ssession  any  projierty  by  virtue  of  any  agreement 
or  warehouse  receipt  for  the  same,  for  which  a  claim  for  storage 
is  at  least  one  year  overdue,  may  proceed  to  sell  the  same  at  public 
auction,  and  out  of  the  proceeds  may  retain  all  charges  for  storage 
of  such  goods,  wares  and  merchandise,  and  any  advances  that  may 
have  been  made  thereon  by  it,  and  the  exjien.se  of  advertising  and 
sale  thereof,  but  no  sale  shall  be  made  until  after  the  giving  a 
])rinted  or  written  notice  of  such  sale  to  the  person  in  whose  name 
the  said  goods,,  wares  and  merchandise  were  stored,  requiring  him, 
naming  him,  to  pay  the  arrears  or  amount  due  for  such  storage, 
and  in  case  of  default  in  so  doing,  the  goods,  wares  and  merchandise 
shall  be  sold  to  pay  the  same,  at  a  time  and  place  to  be  specified  in 
such  notice, 
inoi,  c.  678,  .s.  8. 

3037.  Notice,  how  served;  return  of;  publication.   The  notice 

required  in  the  preceding  section  shall  be  served  by  delivering  it  to 
the  person  in  whose  name  such  goods,  wares  and  merchandise  were 
stored,  or  by  leaving  it  at  his  usual  ]ilace  of  abode,  if  within  this 
state,  at  least  thirty  days  before  the  time  of  sale,  and  a  return  of  the 
service  shall  be  made  by  some  ofHcer  authorized  to  serve  civil  pro- 
cess, or  by  some  other  person,  with  an  affidavit  of  the  truth  of  the 
return.  If  the  party  storing  such  goods  can  not  with  reasonable 
diligence  be  found  within  this  state,  then  such  notice  shall  be  given 
by  publication  once  each  week  for  two  successive  weeks,  the  last 
]niblication  to  be  at  least  ten  days  before  the  time  of  such  sale,  in 
a  newspaper  published  in  the  city  or  town  where  such  warehouse  is 
located.  In  the  event  that  the  party  storing  such  goods  shall  have 
])arted  with  the  same,  and  the  purchaser  shall  have  notified  the 
warehouseman  with  his  address,  such  notice  shall  he  given  to  such 
person  in  lieu  of  the  person  storing  the  goods. 

lilOl,  c.  G78,  s.  !). 

3038.  Surplus  disposed  of.    Every  sudi  waivlKMisciiiaii  sliall  make 
an  ciitrv  in  a  lionk  kept  fnv  that  ]nir]iose  <if  the  amount  of  the  pro- 


3038  WAREHOUSEMEN— 7.  Pvblic.  Ch.  75 

ceeds  of  all  sales,  and  any  balance  shall  be  paid  over  to  the  person 
entitled  thereto  on  demand.  If  such  balance  is  not  demanded  by  the 
owner  within  six  months  after  such  sale,  it  shall  be  paid  by  said  ware- 
houseman to  the  clerk  of  the  court  of  the  county  in  which  said  ware- 
house is  located,  and  he  shall  pay  the  same  to  the  party  entitled 
thereto,  if  demanded  witliin  ten  years  after  said  sale ;  and  stich  ware- 
houseman shall  at  the  same  time  file  with  said  clerk  an  aifidavit  in 
which  shall  be  stated  the  name  and  place  of  residence  of  the  party 
entitled  thereto  so  far  as  the  same  are  known. 
1901,  c.  678,  s.  10. 

3039.  When  perishable  or  dangerous  property  is  stored;  pro- 
ceeds of  sale  paid  to  clerk,  when.  Whenever  a  public  warehouse- 
man has  in  its  possession  any  property  of  a  perishable  nature,  or 
which  will  deteriorate  greatly  in  value  by  keeping,  or  upon  which 
the  charges  for  storage  will  be  likely  to  exceed  the  value  thereof,  or 
which  by  its  odor,  leakage,  inflammability  or  explosive  nature  is 
likely  to  injure  other  goods,  such  property  having  been  stored  upon 
non-negotiable  receipts,  and  when  the  warehouseman  has  notified  the 
person  in  whose  name  the  property  was  received  to  remove  such 
property  and  such  person  has  refused  or  omitted  to  remove  the 
property  and  to  pay  the  storage  and  proper  charges  thereon,  the 
public  warehouseman  may,  in  the  exercise  of  a  reasonable  discre- 
tion, sell  the  same  at  public  or  private  sale  witho\it  advertising,  and 
the  proceeds,  if  there  are  any,  after  deducting  the  amount  of  said 
storage  and  charges,  and  expense  of  sale,  shall  be  j^aid  or  credited 
to  the  person  in  whose  name  the  property  was  stored,  and  if  said 
person  can  not  be  found  on  reasonable  inquiry,  the  sale  niay  be 
made  without  any  notice  and  the  proceeds  of  such  sale  after  deduct- 
ing the  amount  of  storage  or  expense  of  sale,  shall  be  paid  to  the 
clerk  of  the  court  of  the  county  wherein  said  warehouse  is  situated, 
wlio  shall  pay  the  same  to  the  person  entitled  thereto,  if  called  for  or 
claimed  by  the  rightful  owner  within  five  years  of  the  receipt  thereof 
by  said  clerk. 

1901,  c.  G78,  s.  12. 

3040.  When  unable  to  sell  perishable  or  worthless  property. 

Whenever  a  juililic  warehouseman  under  the  provisions  (if  tlio  ]irc- 
ceding  section  has  made  a  reasonable  effort  to  sell  ]ierishable  and 
worthless  property,  and  has  been  unable  to  do  so,  because  of  its 
being  of  little  or  no  value,  it  may  then  proceed  to  dispose  of  such 
property  in  any  lawful  manner,  and  it  shall  not  be  liable  in  any 
way  for  property  so  disposed  of. 
1901,  c.  078,  s.  13. 

Rev.  Vol.  1—54  01.T 


3041  WAREIIOUSEilEX— /.  ruhlic.  Ch.  75 

3041 .  Storer  liable  for  charges,  when.  Whenever  a  public  ware- 
houseman under  the  provisions  of  the  two  preceding  sections  has 
sold  or  otherwise  disposed  of  property  and  the  ])roceeds  thereof  have 
not  been  sufficient  to  pay  the  expenses  of  sale,  storage  and  other 
charges  against  said  property,  then  the  pei'son  in  Avhose  name  said 
property  was  stored  shall  be  liable  to  said  public  warehouseman  for 
such  deficit. 

1901,  c.  67S,  s.  14. 


Note.     Person  disposing  of  stored  goods  unlawful,  see  s.  3831. 
II.     Tobacco  Waeeiiouse  Ciiakges. 

3042.  Maximum  charges  fixed.  The  charges  and  expenses  of 
handling  and  selling  leaf  tobacco  upon  the  floor  of  tobacco  wai'e- 
houses  shall  not  exceed  the  following  schedule  of  prices,  viz. :  For 
auction  fees,  fifteen  cents  on  all  piles  of  one  hundred  pounds  or  less, 
and  twenty-five  cents  on  all  piles  over  one  hundred  pounds;  for 
weighing  and  handling,  ten  cents  per  pile  for  all  piles  less  than  one 
hundred  pounds,  for  all  piles  over  one  hundred  pounds  at  the  rate 
of  ten  cents  per  hundred  pounds;  for  commissions  on  the  gross 
sales  of  leaf  tobacco  in  said  warehouses  not  to  exceed  two  and  one- 
half  per  centum. 

^^  1895,  c.  81. 

3043.  Weighers  sworn.  All  leaf  tobacco  sold  upon  the  floor  of 
any  tobacco  warehouse  shall  first  be  weighed  by  some  reliable  per- 

^s.^^  son,  who  shall  have  first  sworn  and  subscribed  to  the  following  oath, 
to-wit :  "I  do  solemnly  swear  (or  affirm)  that  I  Avill  correctly  and 
accurately  weigh  all  tobacco  offered  for  sale  at  the  warehouse  of 

,  and  correctly  test  and  keep  accurate  the  scales  iipon 

which  the  tobacco  so  offered  for  sale  is  weighed."     Such  oath  shall 
be  filed  in  the  office  of  the  clerk  of  the  superior  court  of  the  count}' 
in  which  said  warehouse  is  situated. 
1895,  c.  81,  s.  2. 

3044.  Bill  of  charges  rendered;  penalty.  The  proprietor  of  each 

and  every  warehouse  shall  render  to  each  seller  of  tobacco  at  his 
>v  warehouse  a  bill  plainly  stating  the  amount  charged  for  weighing 
and  handling,  the  amounts  charged  for  auction  fees,  and  the  com- 
mission charged  on  such  sale,  and  it  shall  be  unlawful  for  anj'  other 
charges  or  fees  to  be  made  or  accepted.  For  each  and  every  viola- 
tion of  the  provisions  of  this  subchapter  a  jicnalty  of  ten  dollars  may 
be  recovered  by  any  one  injured  thereby. 
1895,  c.  81,  .ss.  3,  4. 


3045    WATEE  SUPPLIES—/.  Protection  of  Watersheds.    Ch.  TG 


CHAPTER  76. 
WATER  SUPPLIES. 

Sections. 
I.     Protection  of  watersheds,  3045—3053 

II.     Analyses,  3054—3057 

III.  Miscellaneous  provisions,  3058 — 3060 

IV.  For  public  institutions,  3061—3062 

I.     Protection   of   Watersheds. 

3045.  Inspection  of.  Any  water-works  that  derive  their  supply 
from  lakes  or  ponds  or  from  small  streams  not  more  than  fifteen 
miles  in  length,  shall  have  a  sanitary  inspection  of  the  entire  water- 
shed not  less,  imder  any  circumstances,  than  once  every  three  calen- 
dar months,  and  a  sanitary  inspection  of  any  particular  locality  on 
said  watershed  at  least  once  in  each  calendar  month,  whenever  in  the 
opinion  of  the  board  of  health  of  the  city  or  town  to  which  the  water 
is  supplied,  or  when  there  is  no  such  local  board  of  health,  in  the 
opinion  of  the  county  superintendent  of  health,  or,  in  the  opinion 
of  the  state  board  of  health,  there  is  reason  to  apprehend  the  infec- 
tion of  the  water  in  that  particular  locality.  Such  companies  or 
municipal  corporation  shall  cause  to  be  made  a  sanitary  inspection 
of  any  particular  locality  on  said  watershed  at  least  once  in  each 
week,  -whenever  in  the  opinion  of  the  board  of  health  of  the  city  or 
town  to  which  the  water  is  supplied,  or  when  there  is  no  such  local 
board  of  health,  in  the  opinion  of  the  county  superintendent  of 
health,  or  in  the  oi^inion  of  the  state  board  of  health,  there  is  special 
reason  to  apprehend  the  infection  of  the  water  from  that  particular 
locality  by  the  germs  of  typhoid  fever  or  cholera.  The  inspection 
of  the  entire  watershed,  as  herein  provided  for,  shall  include  a  par- 
ticular examination  of  the  premises  of  every  inhabited  house  of  the 
watershed,  and  in  passing  from  house  to  house  a  general  inspection 
for  dead  bodies  of  animals  or  accumulation  of  filth.  It  is  not 
intended  that  the  term  "entire  watershed"  shall  include  uninhabited 
fields  and  wooded  tracts  that  are  free  from  suspicion.  The  inspec- 
tion shall  be  made  by  an  employee  of,  and  at  the  expense  of  said 
water  company  or  municipal  corporation,  in  accordance  with  rea- 
sonable instructions  as  to  method,  to  be  furnished  by  the  secretary 
of  the  state  board  of  health.  The  said  sanitary  inspector  shall  give 
in  person  to  the  head  of  each  household  on  said  watershed,  or  in  his 
absence  to  some  member  of  said  household,  the  necessary  directions 


915 


L. 


3045    WATEE  SUPPJ.IES— 7.  Prolcrlioi,  of  Watersheds.    Ch.  7G 

for  the  proper  sanitary  care  of  his  premises.  It  shall  further  be 
the  duty  of  said  inspector  to  deliver  to  each  family  residing  on  the 
watershed  such  literature  on  pertinent  sanitary  subjects  as  may  be 
supplied  him  hy  the  municipal  health  officer  or  by  the  secretary  of 
the  state  board  of  health. 
1899,  c.  670;  1903.  c.  159,  s.  2. 

3046.  Rivers  and  large  creeks  inspected  fifteen  miles.  In  case 

of  those  comjiaiiies  obtaining  their  supply  of  water  from  rivers  or 
large  creeks  having  a  minimum  daily  flow  of  ten  million  gallons 
the  provisions  of  the  preceding  section  shall  be  applied  to  the  fifteen 
miles  of  watershed  draining  into  the  said  river  or  creek  next  above 
the  intake  of  the  water-works. 

1899,  c.  (570,  s.  :l;   190:5,  c.  159,  s.  ?>. 

3047.  Penalty  for  failing  to  inspect.  Fiiihue  on  the  part  of  any 

water  comjiany  to  comply  with  the  requirements  in  regard  to  inspec- 
tions and  analyses  provided  for  in  this  chapter,  shall  be  punished 
by  a  deduction,  from  any  charges  for  water  against  the  city  or  town 
supplied  of  twenty-five  dollars  for  each  and  e\-ery  such  failure:  Pro- 
vided, that  ill  uu  one  year  shall  the  sinii  i>f  siu-h  forfeitures  exceed 
five  hundred  dollars. 

1899,  c.  070,  s.  4;  1903,  c.  159,  b.  5. 

Note.  When  \vater-\vork.s  omied  liy  munic-ipality,  olliccis  fiiiliiifj  to  make 
inspection  indictable,  see  .s.  3861. 

3048.  Cities  and  towns  to  make  inspection.  Every  city  or  town 

having  a  ])ublic  water  supply  shall,  at  its  own  expense,  have  made  at 
least  once  in  every  three  months  by  one  of  its  own  officials  a  sani- 
tary inspection  of  the  entire  watershed  of  its  water  supply,  and 
it  shall  be  the  duty  of  the  official  making  siu-h  iuspoctioii  to  re])ort 
to  the  mayor  any  violation  of  this  chaiiter. 

1899,  c.  C70,  s.  5;  1903,  c.  159,  s.  6. 

3049.  Residents  on  watersheds  to  obey  instructions.    Every 

person  residing  or  owning  property  on  the  watershed  of  a  lake,  pond 

or  stream,  fmiu  which   a  public  drinking  suiijdy  is  obtained,  shall 

carry  out  such  reasonable  instructions  as  may  be  furnished  him  in 

the  manner  hereinbefore   set  forth,   or   directly  by  the  municipal 

health  officer,  or  by  the  state  board  of  health. 

1903,  c.  159,  s.  7. 

Note.     Fiiilnic  to  comply  witli  tliis  section  a  niisilcnicanor,  sec  Crimes. 

3050.  Inspectors  may  enter  upon  premises.  Each  sanitary  in- 
spector herein  5  rovided  for  is  authorized  and  empowered  to  enter 
upon  any  preniii:'is  and  into  any  building  upon  his  respective  water- 
shed for  the  purpose  of  making  the  inspections  required. 

1899,  c.  670,  s.  8;  1903,  c.  1.59,  s.  10. 


;3051    WATER  SUPPJJEy— /.   Prolcdiuu  of  Watrrsheds.    Ch.   7G 

3051.  Sewage  not  discharged  in.  No  person  or  municipality 
shall  flow  or  discharge  sewage  into  any  drain,  brook,  creek  or  river 
from  Avhich  a  public  drinking  water  siipply  is  taken,  unless  the  same 
shall  have  been  passed  through  some  well  known  system  of  sewage 
purification  approved  by  the  state  boai'd  of  health ;  and  the  continual 
flow  and  discharge  of  such  sewage  may  be  enjoined  upon  application 
of  any  person. 

1903,  c.  159,  s.  13. 

Note.     For  violation  of  above  section,  see  s.  3858. 
Polluting  watershed  misdemeanor,  see  s.  38G2. 
Depositing  human  excreta  misdemeanor,  see  s.  3857. 

3052.  Towns,  etc.,  not  having  sewerage  system.  All  sdiools, 

hamlets,  villages,  towns  or  industrial  settlements  which  are  now 
located,  or  may  hereafter  be  located  on  the  shed  of  any  public  water 
siipply,  not  provided  with  a  sewerage  system,  shall  provide  and  main- 
tain a  tub  system  for  collecting  human  excrement,  and  provide  for 
removal  of  the  same  from  the  watershed  at  least  twice  each  week. 

1903,  c.  159,  s.  14. 

Note.     Failure  to  comply  with  this  section  misdemeanor;"see  s.  3861. 

3053.  No  cemetery  on  watershed.  No  burying  gi-ouud  or  ceme- 
tery shall  be  established  on  the  watershed  of  any  public  water  sup- 
ply nearer  than  five  hundred  yards  of  the  source  of  supply. 

ir)03,  c.  159,  s.  15. 

II.     Analyses. 

3054.  To  be  made.  Every  water  company,  whether  owned  by 
private  individuals  or  corporations,  or  by  a  municipality,  shall 
liave  made,  not  less  frequently  than  once  in  every  tlircc  months, 
at  its  own  expense,  by  the  chemist  of  the  state  board  of  health,  or  such 
chemist  as  the  said  board  may  designate,  a  chemical  analysis,  and 
once  every  month  a  bacteriological  examination  at  its  o%vn  expense 
liy  the  biologist  of  the  state  board  of  liealth,  or  such  biologist  as  said 
board  may  designate,  of  a  sample  of  its  water  drawn  from  a  faucet 
used  for  drinking  purposes,  ]iacked  and  sliipped  in  accordance  with 
the  instructions  to  be  furnished  by  the  secretary  of  the  state  board 
of  health. 

1899,  c.  670,  s.  0;   1903.  c.  1.59,  s.  4;   1905,  c.  287. 

3055.  State  board  of  health  may  have  examination  made;  fee. 

Eor  carrying  out  the  provisions  of  this  cliapter  the  state  board  of 
health  is  authorized  and  empowered  to  have  the  bacteriological  exam- 
ination made  as  hereinbefore  provided  for,  and  to  charge  for  the 
same  the  sum  of  five  dollars  for  each  examination. 

1903,  c.  139.  s.  17. 

017 


305G  WATER  SUPPLIES—//.  Anali/scs.  Cli.   T(". 

3056.  State  board  of  health  to  make  examinations.    As  a 

check  and  guarantee  (if  the  faithful  perfi.irniance  df  tlic  rei]uircnients 
laid  dciwn  in  this  chapter  the  state  board  of  health  shall  make  or 
have  made  by  its  authorized  agents  such  inspections  of  the  water- 
sheds and  such  chemical  and  bacteriological  examinations  of  the 
public  water  supplies  of  the  state  as  may  be  deemed  necessary  to 
insure  their  purity.  Should  such  inspections  or  examinations  show 
conditions  dangerovis  to  the  public  health  the  secretary  of  the  state 
board  of  health  shall  notify  the  mayor,  the  municipal  health  officer 
and  the  superintendent  or  manager  of  the  water-works  at  fault  and 
demand  the  immediate  removal  of  said  dangerous  conditions.  If 
at  the  end  of  thirty  days  after  the  service  of  said  notice  and  demand 
the  said  dangerous  conditions  have  not  been  removed  to  the  extent 
that  due  diligence  could  accorai^lish  such  removal,  the  said  secretary 
shall  have  printed  in  one  or  more  of  the  local  newspapers  a  plain 
statement  of  the  facts  for  the  information  and  protection  of  the 
citizens  using  the  water. 

1890,  c.  670,  s.  7;   1903,  c.  159,  s.  9. 

3057.  State  laboratory  of  hygiene;  analyses  of  water,  sputum, 
blood,  etc.;  appropriation  for;  tax  against  water  companies.  Foi- 

the  better  protection  of  the  public  health  and  to  ]n'event  the  s]n-cad 
of  communicable  diseases  there  shall  be  established  a  state  laboratory 
of  hygiene,  the  same  to  be  under  the  control  and  management  of 
the  state  board  of  health ;  and  it  shall  be  the  duty  of  the  state  board 
of  health  to  have  made  in  such  laboratory  monthly  examinations  of 
samples  from  all  the  public  water  stipplies  of  the  state.  The  board 
shall  also  cause  to  be  made  examinations  of  well  and  spring  waters 
when  in  the  opinion  of  any  coxmty  superintendent  of  health  or  any 
registered  physician  there  is  reason  to  suspect  such  waters  of  being- 
contaminated  and  dangerous  to  health.  The  board  shall  likewise 
have  made  in  this  laboratory  examinations  of  sputum  in  cases  of 
suspected  tuberculosis,  of  throat  exudates  in  eases  of  susjiected  diph- 
theria, of  blood  in  cases  of  suspected  typhoid  and  malarial  fever,  of 
faeces  in  cases  of  suspected  hook-worm  diseases,  and  such  other  exami- 
nations as  the  public  health  may  require.  For  the  support  of  the 
said  laboratory  the  sum  of  twelve  hundred  dollars  is  hereby  appro- 
priated and  an  annual  tax  of  sixty  dollars,  payable  quarterly,  by 
each  and  every  water  company,  municipal,  corporate  and  private, 
selling  water  to  the  people ;  said  tax  to  be  collected  by  the  sheriff  as 
other  taxes  and  paid  by  said  sheriff  directly  to  the  treasurer  of  the 
state  board  of  health;  and  the  printing  and  stationery  necessary  for 
the  lalK)ratory,  to  be  furnished  upon  requisition  upon  the  state  printer/ 
190.5,  f.  41."). 


3058        WATER  SUPPLIES— /Z7.  Misc.  Provisions.        Cb.  76 
III.     Miscellaneous  Provisions. 

3058.  Precaution  against  contamination.    In  the  interest  of 

the  public  health  every  person,  company,  municipal  corporation  or 
agency  thereof,  selling  water  to  the  public  for  drinking  and  house- 
hold purposes,  shall  take  every  reasonable  precaution  to  protect  from 
contamination  and  assure  the  healthfulness  of  such  water ;  and  any 
provisions  in  any  charters  heretofore  granted  to  such  persons,  com- 
panies or  municipal  corporations  in  conilict  with  the  provisions  of 
this  chapter  are  hereby  repealed. 

1899,  c.  670,  s.  1;   1903,  c.  159,  s.  1. 

3059.  Mayors  to  have  concurrent  jurisdiction.   The  mayor  of 

each  city  or  town  having  a  public  water  supply  shall  have  concur- 
rent jurisdiction  with  any  justice  of  the  peace  to  hear  and  determine 
all  violations  of  this  chapter,  provided  such  violation  is  within  the 
jurisdiction  of  the  jiistice  of  the  peace. 
1903,  c.  1.59,  s.  8. 

3060.  Condemnation  of  lands.  All  water  companies  operating 
under  charters  from  the  state  or  license  from  the  municipalities, 
which  may  maintain  public  water  supplies  may  acquire  by  condem- 
nation such  lands  and  rights  in  land  and  water  as  are  necessary  for 
the  successful  operation  and  protection  of  their  plants,  said  proceed- 
ings to  be  the  same  as  iires-^ribed  by  law  for  acquiring  right  of  way 
by  railroad  companies. 

1003,  c.  159,  s.  10;  1905,  c.  287,  s.  2;  c.  544. 

IV.     Foe  Public  Institutions. 

3061.  May  enter  upon  lands  to  lay  pipes,  etc.  For  the  purpose 

of  providing  water  supplies,  the  directors  or  other  lawful  managers 
of  any  public  institutioji  of  the  state  may  enter  upon  the  lands 
through  which  they  may  desire  to  conduct  their  pipes  for  the  said 
purpose,  and  lay  them  under  ground,  and  they,  at  all  times,  shall 
have  the  right  to  enter  upon  the  said  lands  for  the  purpose  of  keep- 
ing the  water  line  in  repair  and  do  all  things  necessary  to  that 
end. 

1893.  c.  03,  s,  1, 

3062.  Compensation  for  land.  If  damages  shall  be  claimed  for 
the  use  of  such  lands  and  the  parties  can  not  agree  as  to  the  amount 
of  compensati<in  to  bo  paid,  they  may  proceed  in  the  manner  now 
jirovided  by  law  fdr  railroad  companies  to  jn-ocure  riglit  of  way. 

1893,  c.  63.  s.  2. 

910 


3003     WEIGHTS  AISTD  MEASURES—/.  Standards  of.     Ch.  7' 


CHAPTER  77. 

WEIGHTS  AND 

MEASURES. 

Sections. 

I. 
II. 
III. 

IV. 

standards  of, 
State  keeper, 
County  keeper, 
Surveyors, 

30G3— 3067 
30G8— 3071 
3072—3074 
3075—3079 

I. 

Standabds 

OF. 

3063.  To  be  used  by  traders;  exception.  No  trader  or  other 

person  shall  buy  or  sell,  or  otherwise  use  in  trading,  any  other 
weights  and  measures  than  are  made  and  used  according  to  the 
standard  prescribed  by  the  congress  of  the  United  States :  Provided, 
that  this  chapter  shall  not  prevent  the  citizens  o£  the  state  from 
buying  and  selling  grain  by  measure  as  may  be  agreed  upon  between 
the  parties. 

Code,  s.  3837;  R.  C,  c.  117,  s.  1;  1741,  c.  32,  s.  2;  1866,  e.  125. 

3064.  Provided  by  commissioners;  branded.  The  board  of  com- 
missioners of  each  coimty  shall,  at  the  charge  of  their  county,  pro- 
cure standard  sealed  weights  of  half  hundred,  quarter  hundred,  ten 
pounds,  five  pounds,  two  poimds  and  one  pound,  one-half  pound, 
one-quarter  pound,  two  ounces,  one  ounce,  one-half  ounce,  gauging 
rod  and  waist  sticks,  yard  sticks,  half  bushel,  peck,  half  peck,  quar- 
ter peck,  and  one-eighth  peck ;  gallon,  half  gallon,  quart,  pint,  half 
pint,  and  gill  measure,  of  the  United  States  standard,  sealed  and 
branded  "N.  C." 

Code,  s.  3838;  1866-7,  e.  126;  1881,  c.  109. 

3065.  What  is  an  acre  of  land.  The  measure  of  an  acre  of  land 
shall  be  equal  to  a  rectangle  of  sixteen  poles  or  perches  in  length  and 
ten  in  breadth,  and  shall  contain  one  hundred  and  sixty  square 
perches  or  poles,  or  four  thousand  eight  hundred  and  forty  square 
yards,  six  liuiKlrcil  and  forty  such  aci-cs  being  containcil  in  a  sipmre 
mile. 

C<«le,  .s.  3843;  R.  C,  c.  117,  s.  7;  33  Edw.  I,  c.  6. 

3066.  How  many  pounds  to  a  bushel;  penalty.   A  bushel  of 

wheat  shall  be  sixty  pounds;  of  Indian  corn,  fifty-six  pounds;  of 
corn  meal,  forty-eight  pounds;  of  rye,  fifty-six  pounds;  of  barley, 
forty-eight  jionnds;   of  oats,  thirty-two  ]iouiids;  of  flax  seed,  fifty- 


3066     WEIGHTS  AXD  MEASUEES— /.  Slandanis  of.     Ch.   77 

five  pounds ;  of  clover  seed,  sixty  pounds ;  of  pease,  sixty  pounds ;  of 
rough  rice,  forty-four  pounds ;  of  buckwheat,  fifty  pounds ;  of  corn 
in  ear,  seventy  pounds;  of  cotton,  sea  island,  forty-four  pounds;  of 
soy  beans,  pease,  lupines,  lentils,  vetches,  lucerne,  sixty  pounds;  of 
japan  clover  in  hulls,  twenty-five  pounds;  of  burr  clover,  in  hulls, 
eight  pounds;  of  castor  beans,  forty-six  pounds;  of  sunflower  seed, 
twenty-  four  pounds ;  of  broom  corn,  forty-six  pounds ;  of  hemp  seed, 
forty- four  pounds;  of  rape  seed,  fifty  pounds;  of  mustard  seed,  fifty- 
eight  pounds;  of  teosinte,  fifty-nine  pounds;  of  sorghum,  kafiir  corn 
and  millets,  fifty  pounds ;  of  Johnson  grass  seed,  twenty-five  pounds ; 
of  orchard  gTass  seed,  red  top  gi'ass  seed,  bluegTass  seed,  seed  of  the 
brome  grasses,  tall  meadow  seed,  oatgrass  seed,  seed  of  all  the  fescue 
grasses  except  the  tall  and  meadow  fescue,  fourteen  pounds ;  of  tall 
fescue  and  meadow  fescue  gTass  seed,  twenty-four  jiounds ;  timothy 
gTass,  forty-five  pounds ;  chestnuts,  walnuts  and  hickory-nuts  free 
from  hull,  fifty  pounds ;  apple  seed,  forty  jiounds ;  of  peanuts,  twenty- 
two  pounds ;  of  cotton  seed,  thirty  pounds ;  but  this  section  shall  not 
be  construed  to  prevent  the  purchase  and  sale  by  measure.  If  any 
person  shall  take  any  greater  weight  for  one  bushel  of  the  several 
articles  than  is  herein  mentioned,  he  shall  forfeit  and  pay  the  sum  of 
twenty  dollars  for  each  separate  case  to  any  person  who  may  sue  for 
the  same. 

Code,  ss.  3849,  3850;  1885,  e.  26;  1905,  e.  126. 

3067.  Penalty  for  using,  untested.  If  any  person,  after  demand 
by  the  standai'd-kceper  fur  jirrmission  to  examine  and  adjust  the 
same,  shall  buy,  sell,  or  barter  by  any  weight  or  measure  which  .shall 
not  be  tried  by  the  standard,  and  sealed  or  stamped  as  aforesaid,  he 
shall,  for  every  such  offense,  forfeit  and  pay  forty  dollars ;  and  if 
any  person  shall  .sell  and  deliver  by  less  measure  than  the  standard, 
be  shall  forfeit  and  pay  for  each  offense  forty  dollars  to  the  person 
suing  therefor. 

Cotle,  s.  3842;   1893,  c.  100. 

II.      State  Keepki;. 

3068.  Appointed  by  governor;  keeper  of  capitol,  when.   The 

governor  is  authorized  to  appoint  a  suitable  person  to  take  care  of 
the  balances,  weights  and  measTircs,  and  ]ierform  the  duties  relat- 
ing to  weights  and  measures  heretofore  imposed  on  the  governor, 
and  such  other  duties  as  the  govei-nor  may  prescribe,  touching  said 
balances  and  weights  and  measures ;  and  he  shall  take  from  such  per- 
son a  bond  with  surety,  to  be  approved  by  the  governor,  in  the  penai 
sum  of  five  hundred  dollars  for  the  safe-keeping  of  said  weights  and 
measures,  and  for  the  performance  of  all  his  duties.     And  in  case 

921 


306S    WEIGHTS  \yi)^lEAS\:'RES— II.  State  Keeper.    Ch.  77 

the  governor  fails  to  appoint,  or  the  person  appointed  fails  to  qualify 
or  discharge  said  duties,  the  keeper  of  the  capitol  shall  be  ex  officio 
the  keeper  of  weights  and  measures,  and  discharge  the  duties  and 
receive  the  compensation  provided. 

Code,  s.  3844;   18GG-7,  res.,  p.  228;   1881.  c.   109.  s.  3. 

3069.  Duties  of.  It  shall  be  the  duty  of  the  keeper  of  weights 
and  measures,  under  the  direction  of  the  governor,  to  procure  and 
furnish,  at  prime  cost,  to  any  of  the  counties,  upon  an  order  of  the 
board  of  county  commissioners,  any  of  the  standard  sealed  weights 
and  measures  required  by  law  to  be  kept,  and  he  is  hereby  author- 
ized, by  and  with  the  approval  of  the  governor,  to  contract  for  the 
manufacture  of  jalain  sealed  weights  substantially  made  of  iron, 
steel  or  brass,  as  the  county  ordering  may  direct;  yardstick  made  of 
substantial  wood,  each  end  neatly  covered  with  metal,  sealed,  marked 
and  stamped  "JST.  C. ;"  half  bushel,  peck,  half  peck,  quarter  peck, 
and  one-eighth  peck,  made  of  substantial,  well-seasoned  wood,  with 
secure  metallic  binding  and  casing;  gallon,  half  gallon,  qxmrt,  pint, 
half  pint,  and  gill  measure,  made  of  light  sheet  copper  with  iron 
handles.  lie  shall  procure  and  furnish  as  herein  provided  to  the 
board  of  commissioners  of  any  county  ordering  the  same,  dry  and 
liquid  sealed  measTires  and  yardstick  made  of  brass  or  copper. 

Code,  s.  3839;  1881,  c.  199,  s.  2. 

3070.  Must  supply  counties  at  their  cost.    It  shall  be  the  duty 

of  the  state  standard-keeper  to  supply  to  each  county,  which  shall 
call  for  the  same,  such  standard  weights  as  the  standard-keeper  of 
such  county  shall  demand,  duly  sealed,  such  county  paying  to  the 
state  treasurer  the  actual  cost  of  such  weights,  upon  the  certificate 
of  the  state  standard-keeper. 

Code,  s.  3840;   1866-7,  o.  126,  s.  1. 

3071.  Record  kept  by.  It  shall  be  the  duty  of  the  state  standard- 
keeper  to  keep  a  book,  in  which  he  shall  keep  an  accurate  account 
of  all  the  weights  and  measures  by  him  delivered,  and  the  expenses 
incurred  by  him  in  the  purchase  of  such  weights  and  measures,  sub- 
ject to  the  inspection  of  the  state  treasurer  and  the  general  assembly. 

Code,  s.  3847;  18C6-7,  c.  120,  s.  2. 

HI.       CoiTNTV  KKErKK. 

3072.  Appointed  by  commissioners;  tenure;  oattis.  The  weights 

and  measures,  stamjis  and  brands  thus  provided,  shall  be  kept  at 
the  courtliiiusc  of  the  respeclixe  ciiuntics  by  a  standard-keeper,  to  be 
elected   by  the  board  of  commissioners  for  the  term  of  two  years; 

922 


3072    WEIGHTS  AND  MEASUEES— 77/.  Co.  Keeper.     Ch.  77 

and  the  person  thus  elected  shall,  before  the  board  of  county  com- 
missioners, take  the  oaths  required  for  public  officers  and  also  an 
oath  of  office.  But  the  standard-keeper  va&y  remove  the  weights  and 
measures,  stamps  and  brands  from  the  courthouse,  not  to  exceed 
sixty  days  in  any  one  year,  for  the  purpose  of  testing  weights  and 
measiTres  throughout  the  county.  This  section  shall  not  apply  to 
the  coimties  of  Beaufort,  Bertie,  Bladen,  Currituck,  Gaston,  Halifax, 
Lincoln,  Montgomery,  Moore,  J^orthamptou,  Rutherford,  Warren 
and  Yancey,  and  in  these  counties  the  office  of  standard-keeper  is 
abolished. 

Code,  s.  3840;  1889,  cc.  404.  513:  1S9I,  e.  416;  1893,  c.  207;  1901,  c.  55;  1903, 
cc.  209,  595;  R.  C,  c.  117,  s.  4;  1741,  c.  32.  s.  3;  1816,  c.  901,  s.  2;  1827,  c.  22, 
s.  3;  1883,  e.  393;  1905,  cc.  175.  302,  401,  808. 

Note.  For  bond  of,  see  Bonds. 

3073.   May  test  every  two  years;  penalty;  exception.  Every 

person  using  weights  and  measures  and  steelyards,  embracing  bal- 
ances and  other  instruments  used  in  weighing,  shall  allow  and  per- 
mit the  standard-keeper  of  the  county  to  try,  examine  and  adjust  by 
the  standard  at  least  once  every  two  years  all  the  said  weights,  meas- 
ures, steelyards,  embracing  balances  and  other  instruments  used 
in  weighing;  and  every  trader  or  dealer  by  profession,  and  every 
miller,  at  least  once  in  every  two  years  thereafter,  shall  permit  their 
weights,  measures,  steelyards,  balances  and  other  instruments  used  in 
weighing,  to  be  examined  and  adjusted  by  the  standard-keeper  of  the 
county  in  which  such  weights  and  measures  are  used,  and  the  stand- 
ard-keeper, when  practicable,  shall  mark,  by  stamp  or  brand,  the 
weights,  measures,  steelyards,  balances  and  other  instruments  used  in 
weighing  found  or  made  to  agree  with  the  standard,  and  shall  give  a 
certificate  of  such  examination  and  adjustment,  stating  the  weights, 
measures,  steelyards,  balances  and  other  instruments  used  in  weigh- 
ing by  him  examined  and  adjusted :  and  every  person  using,  buying 
or  selling  by  weights  and  measures,  who  shall  neglect  to  comply  with 
the  requisites  of  this  section,  shall  forfeit  fifty  dollars,  to  be  recovered 
at  the  instance  of  the  standard-keeper,  one-half  to  his  use  and  the 
other  half  to  the  use  of  the  county  wherein  the  offense  is  committed. 
But  in  the  counties  of  Camden  and  Currituck  no  such  person  shall 
be  required  to  permit  such  examination  and  adjustment  oftener  than 
once  in  four  years.  This  section  shall  not  apply  to  the  counties  of 
Beaufort,  Bertie,  Bladen,  Currituck,  Gaston,  Halifax,  Lincoln,  Mont- 
gomery, Moore,  Northampton,  Rutherford,  Warren  and  Yancey,  and 
in  these  counties  the  office  of  standard-keeper  is  abolished.  In  Wil- 
son county  whenever  any  person  has  had  his  weights  and  measures 
tried  by  the  standard  and  sealed  or  stamped  as  aforesaid,  he  shall 
not  be  required  to  have  them  tried  by  the  standard  again  unless  some 


:]07;J     WEIGHTS  AXD  MEASURES—///.   Co.  Keeper.    Oh.  77 

responsible  person  in  the  eoimty  of  Wilson  shall  make  oath,  and  lile 
the  same  with  the  standard-keeper  of  said  county,  that  he  has  reason 
to  believe  that  said  weights  or  measures  are  not  properly  adjusted. 
That  notice  shall  be  given  the  owner  of  said  weights  or  measures 
that  complaint  has  been  made  under  oath  as  aforesaid,  and  then  the 
owner  of  said  weights  and  measures  shall  have  his  weights  and  meas- 
ttres  tried,  as  herein  provided,  and  for  failure  shall  then  be  subject  to 
the  penalties  mentioned  in  section  three  thousand  and  sixty-seven. 

Code,  s.  3841;  1889,  c.  404;  1891,  c.  416;  1893,  cc.  100,  207;  1901,  c.  55; 
1903,  cc.  209,  59.5,  023;  R.  C,  c.  117,  s.  5;  1741,  c.  32,  sa.  4,  5;  1818,  c.  965; 
1823,  c.  1226;  1866-7,  o.  126,  s.  3;  1905,  cc.  175,  302.  378,  401,  808. 

3074.  Destroys  weights  and  measures,  when.  In  every  in- 
stance where  the  standard-keeper  shall  have  before  him  for  adjust- 
ment, or  shall  find  in  the  possession  of  any  person,  intending  to 
use  the  same,  any  weight  or  measure  that  can  not  be  adjusted  so  as 
to  meet  the  requirements  of  the  law,  it  shall  be  the  duty  of  the 
standard-keeper  to  destroy  the  same. 

Code,  s.  3848;  1800-7,  c.  126,  s.  4. 

IV.       SUEVEYOR.S. 

3075.  What  is  a  surveyor's  chain;  tested.  The  standard  meas- 
ure for  a  surveyor's  chain  shall  l)e  twenty-two  standard  yards,  a 
standard  half  or  two-pole  chain  shall  be  eleven  standard  yards,  a 
standard  quarter  or  one-pole  chain  shall  be  five  and  one-half  standard 
yards;  but  every  person  using  a  surveyor's  chain,  half  chain  or 
quarter  chain  for  measuring  laud  shall  every  two  years  test  the  same 
in  the  manner  hereinafter  provided. 

1889,  c.  409;   1899,  e.  605. 

3076.  iVIagnetic  instruments  and  chains  tested.  Every  sur- 
veyor operating  in  any  of  the  counties  of  this  state  with  magnetic 
instruments,  whether  in  a  public  or  ])rivate  capacity,  shall,  between 
the  first  day  of  January  and  thirty-first  day  of  December  in  each 
and  every  year,  carefully  test  his  needle  ujion  the  official  meridian 
monuments  in  the  coimty  in  which  he  resides  or  the  nearest  county 
in  which  such  monuments  have  been  erected,  by  adjusting  hi.s  instru- 
ment over  the  intersection  of  the  lines  cut  into  the  top  of  one  of  the 
meridian  monuments  so  established  and  sighting  to  the  intersection 
of  the  lines  cut  into  the  to]i  of  the  other  meridian  monument,  noting 
the  variation  of  the  magTietic  from  the  true  meridian  and  tlie  direc- 
tion thereof,  and  shall  test  the  chain  or  other  instrument  of  linear 
measure  upon  the  distance  from  centre  to  centre  as  indicated  by 
intersecting  lines  of  tiie  two  beams,   tablets  or  other  official  mouu- 


;507C      WEIGHTS  AND  MEASURES— /T.  Surveijors.      Oh.   77 

nieuts  set  at  or  near  the  county  courthouse  for  this  purpose,  noting 
the  error  of  such  instrument  as  compared  with  the  standard  of  the 
monuments.  On  every  official  record  of  a  survey  of  lands  made 
after  the  first  day  of  July,  nineteen  Inmdred  and  one,  in  any  county 
in  which  meridian  monuments  have  been  erected,  there  shall  be 
entered  by  the  surveyor  making  such  survey  a  record  as  to  the 
date  of  testing  the  magnetic  instrument  used,  and  the  amount  of 
the  declination  or  variation  of  the  magnetic  needle  indicated  at  such 
test. 

18!»!),  c.  005,  s.  1;  liJOl,  c.  042. 

3077.  Instruments  tested  in  another  county.    Before  making 

surveys  in  any  county  other  than  the  one  in  'which  the  magnetic 
instruments  and  instruments  for  linear  measure  to  be  used  have 
already  been  tested,  said  svtrveyor  shall  procure  in  writing  from  the 
register  of  deeds  of  the  county  in  which  said  monuments  have  been 
established,  nearest  to  the  point  where  the  survey  is  to  be  made,  a 
statement  giving  the  declination  of  the  magnetic  needle  for  the  year 
in  which  it  was  last  determined,  and  the  rate  and  direction  of  the 
variation  of  said  magnetic  needle  since  that  time,  and  this  data 
shall  be  recorded  as  a  part  of  the  record  of  his  survey.  But  no  sur- 
veyor shall  be  required  to  go  outside  of  the  county  in  which  he 
resides  for  the  purpose  of  testing  the  instruments  herein  named. 

1809,  c.  605,  s.   1. 

3078.  Tests  returned  to  register  of  deeds;  registered.   Such 

tests  and  the  correction,  if  any,  resulting  therefrom  shall  be  returned 
by  the  stirveyor  in  writing  and  under  oath  to  the  register  of  deeds 
for  the  county  in  which  such  meridian  is  situate  within  ten  days 
from  the  taking  of  the  observations,  setting  forth  the  name  of  the 
sxirveyor,  his  residence,  the  character  of  the  instrument  tested,  the 
date  of  the  observations,  the  declination  east  or  west  of  the  magnetic 
needle  from  the  true  meridian,  together  with  a  fee  of  ten  cents  for 
filing  and  registering  the  same;  and  such  return  shall  be  filed  and 
registered  by  the  register  of  deeds  in  a  book  properly  ruled  and  let- 
tered, to  be  furnished  by  the  board  of  commissioners  of  the  coiTuty, 
to  be  iiscd  for  such  purpose  exclusively  and  entitled  "The  Meridian 
Record." 

1899,  c.  005,  s.  1. 

3079.  Meridian  monuments  protected  by  county  commission- 

.ers.  It  shall  be  the  duty  of  the  board  of  county  commissioners  to 
maintain  and  protect  the  meridian  monuments  and  tablets  or  monu- 
ments for  the  testing  of  chains  or  other  instruments  of  linear  meas- 
ure established  by  the  state,  or  national  surveys  co-operating  with  the 


3079      WEIGHTS  AXD  MEASURES— /T\  Surveyors.      Ch.   77 

county  autlioritics,  in  gooil  onler  ami  comlition  as  the  otKcial  stand- 
ards of  the  county. 
1899,  c.  GG5,  s.  2. 


Note.     For  defacing,  iemo\ing  or  dcbtroying  meridian  monuments,  see  Crimes. 


CHAPTEE  78. 


WIDOWS. 

Sections. 

1. 

Dissent  from  will, 

3080—3082 

II. 

Dower, 

3083— .-^OSG 

III. 

Dower  allotted. 

3087—3090 

IV. 

Year's  support, 

3091—3095 

V. 

Year's  support  assigned. 

3096—3102 

VI. 

Increased  allowance. 

3103—3110 

I.     Dissent  feoiiI  Will. 

3080.  How;  when.  Every  widow  may  dissent  from  licr  hus- 
band's will  before  the  clerk  of  the  superior  court  of  the  county  in 
which  such  will  is  proved,  at  any  time  within  six  months  after  the 
probate.  The  dissent  may  be  in  person,  or  by  attorney  authorized 
in  writing,  executed  by  the  Avidow  and  attested  by  at  least  one  wit- 
ness and  duly  proved.  The  dissent,  whether  in  person  or  by  attor- 
ney, shall  be  filed  as  a  record  of  court.  If  the  widow  be  an  infant 
or  insane,  she  may  dissent  by  her  guardian. 

Code,  s.  2108;  1S68-9,  c.  93,  s.  37. 

3081.  Effect  of  dissent.  Upon  such  dissent,  the  widow  shall 
have  the  same  rights  and  estates  in  the  real  and  personal  property 
of  her  husband  as  if  he  had  died  intestate. 

Code,  s.  2109;  R.  C,  c.  118,  s.  12;  1868-9,  c.  93,  s.  38. 

3082.  Not  liable  for  husband's  debts.   The  dower  or  right  of 

dower  of  a  widow,  and  such  lands  as  may  be  devised  to  her  by  his 
will,  if  such  lands  do  not  exceed  the  quantity  she  would  be  entitled 
to  by  right  of  dower,  although  she  has  not  dissented  from  such  will, 
shall  not  be  subject  to  the  payment  of  debts  due  from  the  estate 
of  her  husband,  during  the  term  of  her  life. 
w-Code,  ss.  210-1.  2105;  R.  C.,  c.  118,  s.  8;  1868-9,  c.  93,  s.  34;  1791,  c.  351,  s.  4. 


;J0S3  WIDOWS—//.  DoiL''er.  Ch.  78 

II.        DOWEE. 

3083.  Who  entitled  to.  Widows  shall  be  endowed  as  at  common 
law  as  in  this  chapter  defined :  Provided,  if  any  married  woman 
shall  commit  adultery,  and  shall  not  be  living  with  her  husband  at 
his  death,  or  shall  be  convicted  of  the  felonious  slaying  of  her  hus- 
band, or  being  accessory  before  the  fact  to  the  felonious  slaying  of 
her  husband,  she  shall  thereby  lose  all  right  to  dower  in  the  lands 
and  tenements  of  her  husband ;  and  any  such  adultery  or  conviction 
may  be  pleaded  in  bar  of  any  action  or  proceeding  for  the  recovery 
of  dower. 

Code,  s.  2102;  1S89,  c.  499;  1868-9,  c.  93,  s.  32;  1871-2,  c.  193,  s.  44. 

3084.  Consists  of  what.  Subject  to  the  provision  in  the  preced- 
ing section  every  married  woman,  upon  the  death  of  her  husband 
intestate,  or  in  case  she  shall  dissent  from  his  will,  shall  be  entitled 
to  an  estate  for  her  life  in  one-third  in  value  of  all  the  lands,  tene- 
ments and  hereditaments  whereof  her  husband  w^as  seized  and  pos- 
sessed at  any  time  during  the  coverture,  in  which  third  part  shall  be 
included  the  dwelling-house  in  which  her  husband  usually  resided, 
together  with  offices,  outhouses,  buildings  and  im]3rovements  there- 
unto belonging  or  appertaining;  she  shall  in  like  manner  be  entitled 
to  such  an  estate  in  all  legal  rights  of  redemption  and  equities  of  re- 
demption or  other  equitable  estates  in  lands,  tenements  and  heredita- 
ments whereof  her  husband  was  seized  in  fee  at  any  time  during  the 
coverture,  subject  to  all  valid  incumbrances  existing  before  the  cover- 
ture or  made  during  it  with  her  free  consent  lawfully  appearing 
thereto.  The  jury  summoned  for  the  purpose  of  assigning  dower  to  a 
widow  shall  not  be  restricted  to  assign  the  same  in  every  separate  and 
distinct  tract  of  land,  but  may  allot  her  dower  in  one  or  more  tracts, 
having  a  due  regard  to  the  interest  of  the  heirs  as  well  as  to  the 
right  of  the  widow. 

Code,  s.  2103;  R.  C,  c.  118,  s.  3 ;  R.  S.,  c.  121,  s.  3;  1827,  c.  46;  1869-70,  c.  176; 
1883,  c.  175. 

3085.  Husband's  alienation  does  not  bar,  except  to  secure  pur- 
chase-money. Xo  alienation  of  the  husband  alone,  with  or  without 
covenant  of  warranty,  shall  have  any  other  or  further  effect  than  to 
l>ass  his  interest  in  such  estate,  subject  to  the  dower  right  of  his 
wife :  Provided,  that  a  mortgage  or  trust  deed  by  the  husband  to 
secure  the  purchase-money,  or  any  part  thereof,  of  land  boiight  by 
him,  shall,  without  the  wife  executing  the  deed,  be  effectual  to  pass 
the  whole  interest  according  to  the  provisions  of  the  said  deed. 

Code.  s.  2106;   1808-9,  c.  93,  s.  35. 


30S(!  WILTUWS— //.  Dower.  Ch.  78 

3086.  Conveyed  by  joining  in  deed.   The  right  to  tlower  under 

this  chapter  sliall  pass  and  he  effectual  against  any  widow  or  per- 
son claiming  under  her  upon  the  wife  joining  with  her  husband  in 
the  deed  of  conveyance  and  being  privately  examined  as  to  her  con- 
sent thereto  in  the  manner  prescribed  by  law. 

Code,  s.  2107;  1868-9,  c.  93,  s.  3G. 

Note.     See  chapter  Married  Woiiien. 

III.      Dower  Allotted. 

3087.  Assigned  by  agreement,  wlien.    If  the  personal  i>roperty 

of  a  decedent  be  sufficient  to  pay  his  debts  and  charges  of  adminis- 
tration, the  heir  or  devisee  with  the  widow  may,  by  deed,  agree  to 
an  assignment  of  her  dower. 
Code,  s.  2110;  1868-9,  c.  93,  s.  39. 

3088.  Application  for.  If  no  such  agreement  be  made,  the  widow 
may  apply  for  assigiiment  of  dower  by  petition  in  the  superior  court, 
and,  if  she  fail  to  make  such  application  within  three  months  after 
the  death  of  her  husband,  any  heir  or  devisee  may  file  a  petition 
reciting  the  facts  that  the  said  widow  is  entitled  to  dower  on  certain 
lands  and  has  not  applied  for  it,  and  demand  that  her  said  dower 
be  assigned  to  her.  In  all  cases  the  widow  and  all  heirs  and 
devisees  and  persons  in  possession  of,  or  claiming  estates  in,  the 
lands  shall  be  made  parties,  and  the  coiirt  shall  hear  and  pass  iipon 
the  petition  in  like  manner  as  in  other  cases  of  special  proceedings. 

Cotle,  ss.  2111,  2112;   1891,  c.  133;  1868-9,  c.  93,  ss.  40,  41. 

3089.  How  assigned.  If  dower  be  adjudged,  it  shall  be  assigned 
by  a  jury  of  three  persons  qualified  to  act  as  jurors,  unless  one  of 
the  parties  demand  a  greater  number,  not  exceeding  twelve,  who 
shall  be  summoned  by  the  sheriff  to  meet  on  the  premises  or  some 
part  thereof,  and  being  dul}'  sworn  by  the  sheriff  or  other  person 
authorized  to  administer  oaths,  shall  proceed  to  allot  and  set  apart 
to  the  widow  her  dower  in  said  premises  according  to  law  and  make 
report  of  their  proceedings  under  their  hands  within  five  days  to  the 
clerk  of  the  .superior  court.  When  the  husband  dies  seized  and  pos- 
sessed of  lands  in  any  other  count.y  than  that  in  which  dower  is  to  be 
assigned,  the  clerk  of  the  superior  court  of  the  county  in  which  dower 
is  to  be  assigned  shall,  u]ion  application  of  the  widow  entitled  to 
dower  issue  a  commission  to  the  sheriff  of  such  other  county  requiring 
him  to  summons  three  or  more  persons,  as  may  be  asked  in  said  appli- 
cation, qualified  to  act  as  jurors,  to  go  upon  the  lands  of  said  husband 
in  the  county  of  said  sheriff  and  assess  the  value  of  the  same  after 
being  duly  sworn  by  the  sheriff  for  that  purpose,  and  re]i(irt  their  as- 


3089  WIDOWS— 77/.  Dower  Allotted.  Cli.  78 

sessment  under  their  bauds  and  seals  through  the  sheriff,  who  shall 
countersigTi  the  same  as  their  report  to  the  clerk  issuing  said  com- 
mission ;  and  said  report  in  the  hands  of  the  jury  summoned  to 
assign  the  dower  shall  be  considered  by  them  a  true  valuation  of 
the  lands  mentioned  in  the  repoi't,  and  said  last-mentioned  jury 
shall  be  deemed  to  have  met  on  the  lands  thus  assessed  and  shall 
assign  the  dower  accordingly. 

Code,  s.  2113;   1893,  c.  314;   18G8-9,  c.  93,  s.  42. 

3090.  Notice  to  parties  of  meeting  of  jury.  The  parties  to  such 

jjrocecding,  or  their  attoimeys,  if  within  the  county,  shall  be  notified 
of  the  time  and  place  of  meeting  of  the  jury  appointed  to  assign 
dower,  at  least  five  days  before  the  meeting. 

Code,  s.  2114;  1868-9,  c.  93,  s.  43. 


Note.     For  allotment  in  proceeds  of  sale  for  partition,  see  ss.  2508,  2517. 
IV.     Year's  Support. 

3091.  Who  entitled.  Every  widow  of  an  intestate,  or  of  a  testa- 
tor from  whose  will  she  has  dissented,  shall  be  entitled,  besides  her 
distributive  share  in  her  husband's  personal  estate,  to  an  allowance 
therefrom,  for  the  support  of  herself  and  her  family  for  one  year 
after  his  decease,  and  said  allowance  shall  be  exempt  from  any 
lien,  by  judgment  or  execution,  acquired  against  the  property  of  her 
said  husband:  Provided,  if  any  married  woman  shall  commit  adul- 
tery, and  shall  not  be  living  with  her  husband  at  his  death,  or  shall 
be  convicted  of  the  murder  of  her  husband,  or  of  being  accessory 
before  the  fact  to  the  murder  of  her  husband,  she  shall  thereby  lose 
all  right  to  a  year's  provision,  and  to  a  distributive  share  from 
the  personal  property  of  her  husband,  and  such  adultery  or  convic- 
tion may  be  pleaded  in  bar  of  any  action  or  proceeding  for  the 
recovery  of  such  rights  and  estates. 

Code,  s.  2116;  1889,  c.  499,  s.  2;  1868-9,  c.  93,  s.  81;  1871-2,  c.  193,  s.  44; 
]  880,  c.  42. 

3092.  Value.  Except  in  cases  in  which  a  larger  allowance  is 
hereinafter  provided  for,  the  value  of  a  year's  allowance  shall  be 
three  hundred  dollars,  and  one  hundred  dollars  in  addition  thereto 
for  every  member  of  the  family  besides  the  widow. 

Code,  s.  2118;  1868-0,  e.  93,  s.  10. 

3093.  Family  defined.  The  family  of  the  deceased,  for  the  pur- 
poses of  this  chapter,  shall  be  deemed  to  be,  besides  the  widow,  every 
child,  either  of  the  deceased  or  of  the  widow,  and  every  other  per- 
son to  whom  the  deceased  or  widow  stood  in  place  of  a  parent,  who 

Rev.  Vol.  1—55  929 


3093  WIDOWS— /T'.   Year's  Support.  Ch.  78 

was  residing  with  the  deceased  at  his  death,  and  whose  age  did  not 
then  exceed  fifteen  years. 

Code,  s.  2110;   1SG8-9,  c.  93,  s.  11. 

3094.  If  no  widow,  children  entitled.  If  a  man  die  intestate 
leaving  no  widow  surviving  him,  or  if  his  widow  die  before  her 
year's  allowance  is  assigned  her,  then  there  shall  be  assigned  to 
every  other  member  of  the  family,  as  in  this  chapter  defined,  the 
sum  of  one  hundred  dollars  each,  which  shall  be  turned  over  imme- 
diately to  the  guardian  and  used  by  him  in  the  care  and  education 
of  the  members  of  the  family,  respectively;  and  if  there  be  no  guard- 
ian, it  shall  be  received  and  disbursed  by  the  clerk  of  the  superior 
court  for  their  benefit. 

1889,  e.  496. 

3095.  From  what  assigned.  Such  allowance  shall  be  assigned 
from  the  crop,  stock  and  jjrovisions  of  the  deceased  in  his  possession, 
at  the  time  of  his  death,  if  there  be  a  sufficiency  thereof  in  value; 
aud  if  there  be  a  deficiency,  it  shall  be  made  up  by  the  personal 
representative  from  the  personal  estate  of  the  deceased. 

Code,  s.  2117;  1868-9,  c.  93,  s.  9. 

V.     Year's  Suppokt  Assigned. 

3096.  Personal  representative  shall  assign.  It  shall  be  the  duty 

of  every  administrator,  collector,  or  executor  of  a  will,  from  which 
the  widow  of  a  testator  has  dissented,  on  application  in  writing, 
signed  by  the  widow  of  such  intestate  or  testator,  at  any  time  within 
one  year  after  the  decease  of  the  husbaud,  to  assign  to  her  a  year's 
allowance  in  the  manner  prescribed  in  this  chapter,  to  the  value 
herein  prescribed,  deducting  therefrom  the  value  of  any  articles 
consumed  by  the  widow  and  her  family  since  the  death  of  her  hus- 
band to  the  time  of  the  assignment.  If  there  be  no  widow,  or  if 
she  should  die  before  the  year's  provision  is  assigned,  the  personal 
representative  shall  assign  one  hundred  dollars  to  every  other  mem- 
ber of  the  family  as  defined  in  this  chapter;  but  if  there  be  no  per- 
sonal representative  it  shall  be  assigned  by  a  justice  of  the  peace, 
ujion  the  ai^plication  of  the  guardian  or  next  friend  of  the  children 
entitled. 

Code,  8.  2120;  1889,  c.  496;  1868-9,  c.  93,  s.  12. 

3097.  Value  ascertained.  The  value  of  stock,  crop  and  provis- 
ions assigned  to  tlie  widow,  as  well  as  that  of  the  articles  consumed, 
shall  be  ascertained  by  a  justice  of  the  peace  and  two  ]icrsons  quali- 
fied to  act  as  jurors  of  the  county  in  which  administration  was 
granted  or  the  will  proved. 

Code,  s.  2121;  1868-9,  e.  93,  s.  13. 

930 


3098  WIDOWS— 7.   Year's  Support  Assigned.  Ch.  78 

3098.  Procedure  to  assign.  Upon  the  application  of  the  widow, 
the  personal  representative  of  the  deceased  shall  apply  to  a  justice 
of  the  peace  of  the  township  in  which  the  deceased  resided,  or  some 
adjoining  township,  to  summon  two  persons  qualified  to  act  as  jurors, 
who,  having  been  sworn  by  the  justice  to  act  impartially,  shall,  with 
him,  ascertain  the  number  of  the  family  of  the  deceased  according 
to  the  definition  given  in  this  chapter,  and  examine  his  stock,  crop 
and  provisions  on  hand,  and  assign  to  the  widow  so  much  thereof 
as  M-ill  not  exceed  the  value  limited  in  this  chapter,  subject  to  the 
deduction  prescribed  in  this  chapter:  Provided,  that  in  case  there 
shall  be  no  administration  upon  said  estate,  or  in  the  event  that  the 
personal  representative  shall  fail  or  refuse  to  apply  to  a  justice 
of  the  peace  as  aforesaid  for  the  space  of  ten  days  after  the  widow 
shall  have  filed  with  him  the  application  as  aforesaid,  or  if  the 
widow  shall  be  the  personal  representative,  she  may  make  the  appli- 
cation, and  it  shall  be  the  duty  of  the  justice  to  proceed  in  the  same 
manner  as  though  the  application  had  been  made  by  the  personal 
representative:  Provided  further,  that  in  all  cases,  if  there  be  no 
crop,  stock  or  provisions  on  hand,  or  not  a  sufficient  amount,  the 
commissioners  may  allot  to  the  widow  any  articles  of  personal  prop- 
erty of  the  deceased,  and  also  any  debt  or  debts  known  to  be  due 
him,  and  such  allotment  shall  vest  in  the  widow  said  property,  and 
the  right  to  collect  the  debts  thus  allotted:  Provided  further,  that 
where  the  widow  and  personal  effects  of  the  deceased  husband  shall 
have  been  removed  from  the  township  or  county  where  deceased  hus- 
band resided  before  his  death,  the  said  widow  may  apply  to  any 
justice  of  the  peace  of  any  township  or  county  where  such  personal 
property  is  located,  and  it  shall  be  the  duty  of  such  justice  to  allot 
and  assigTL  the  year's  allowance  as  if  the  husband  had  resided  and 
died  in  that  township. 

Code,  s.  2122;  1891,  c.  13;  1899,  c.  531;  1870-1,  e.  263. 

3099.  Duty  of  commissioners.  The  commissioners  shall  make 
and  sign  three  lists  of  the  articles  assigTied  to  the  widow,  stating 
the  quantity  and  value  of  each,  the  number  in  the  family,  and  the 
deficiency  to  be  paid  by  the  personal  I'epresentative.  One  of  these 
lists  shall  be  delivered  to  the  widow,  one  to  the  personal  represen- 
tative and  one  returned  by  the  justice,  within  twenty  days  after 
the  assignment  to  the  superior  court  of  the  county,  and  the  clerk 
shall  file  and  record  the  same  and  enter  judgment  against  the  per- 
sonal representative,  to  be  paid  when  assets  ■  shall  come  into  his 
hands,  for  any  residue  found  in  favor  of  the  widow. 

Code,  s.  2123;  1868-9,  c.  93,  s.  15. 

3100.  Appeal.  The  personal  representative,  or  the  widow,  or  in- 
fant by  his  guardian  or  next  friend,  or  any  creditor,  legatee  or  dis- 

931 


3100  WIDOWS— T.   Year's  Support  Assigned.  Ch.  78 

tributee  of  the  deceased,  may  appeal  from  the  finding  of  the  commis- 
sioners to  the  superior  court  of  the  county,  and,  within  ten  days 
after  the  assignment,  cite  the  adverse  party  to  aj^pear  before  such 
court  on  a  certain  day,  not  less  than  five  nor  exceeding  ten  days 
after  the  service  of  the  citation. 

Code,  s.  2124;  1897,  c.  442;  1868-9,  c.  93,  s.  10. 

3101.  Duty  of  appellant.  At  or  before  the  day  named,  the  appel- 
lant shall  file  with  the  clerk  a  copy  of  the  assignment  and  a  state- 
ment of  his  exceptions  thereto,  and  the  issues  thereby  raised  shall 
be  decided  as  other  issues  are  directed  to  be.  When  the  issues  shall 
have  been  decided,  judgment  shall  be  entered  accordingly,  if  it  may 
be  without  injustice,  without  remitting  the  proceedings  to  the  com- 
missioners. 

Code,  s.  2125;  1868-9,  e.  93,  s.  17. 

3102.  Allowance  to  widow  a  credit  to  personal  representative. 

Upon  the  settlement  of  the  accounts  of  the  personal  representative, 
he  shall  be  credited  with  the  articles  assigned,  and  the  value  of 
the  deficiency  assessed  as  aforesaid,  if  the  same  shall  have  been  paid, 
unless  the  allowance  be  impeached  for  fraud  or  gross  negligence  in 
him. 

Code,  s.  2126;  1868-9,  e.  93.  s.  18. 

VI.     Increased  Allowance. 

3103.  When  allowance  in  full,  if  the  estate  of  a  deceased  be 
insolvent,  or  if  his  personal  estate  does  not  exceed  two  thousand  dol- 
lars, the  allowance  for  the  year's  support  of  his  widow  and  her 
family  shall  not,  in  any  case,  exceed  the  value  prescribed  above;  and 
the  allowance  made  to  her  as  above  prescribed  shall  preclude  her 
from  any  further  allowance. 

Code,  s.  2127;  1868-9,  c.  93,  s.  19. 

3104.  Assigned  on  application  to  superior  court.  It  shall  not, 

however,  be  obligatory  on  a  widow  to  have  her  support  assigned  as 
above  prescribed.  Without  applying  to  the  personal  representative 
of  her  deceased  husband,  she  may,  at  any  time  within  one  year 
after  the  death  of  her  husband,  apply  to  the  superior  court  of  the 
county  in  which  the  will  was  proved,  or  administration  granted, 
to  have  a  year's  support  for  herself  and  her  family  assigned  to  her. 
Code,  s.  2128;  1868-9,  c.  93,  s.  20. 

3105.  Proceeding;  parties.  The  application  shall  be  by  sum- 
mons, as  is  prescribed  for  sjiccial  proceedings,  in  whicli  the  personal 
representative  of  the  deceased,  if  there  be  one  other  than  the  plain- 


3105  WIDOWS— F/.  Increased  Allowance.  Ch.  78 

tiff,  the  largest  known  ci'editor,  or  legatee,  or  some  distributee  of 
the  deceased,  living  in  the  county,  shall  be  made  defendant,  and 
the  proceedings  shall  be  as  prescribed  for  siiecial  proceedings  be- 
tween parties. 

Code,  s.  2129;  1868-9,  c.  93,  s.  21. 

3106.  Complaint.   In  her  complaint  the  widow- shall  set  forth,  be- 
•si(k's  the  facts  entitling  her  to  a  year's  support  and  the  value  thereof, 

as  claimed  by  her,  the  further  facts  that  the  estate  of  the  deceased 
is  not  insolvent,  and  that  the  personal  estate  of  which  he  died  pos- 
sessed exceeded  two  thousand  dollars,  and  also  whether  or  not  she 
had  an  allowance  made  her,  and  the  nature  and  value  thereof;  and 
if  no  allowance  has  been  made,  the  quantities  and  values  of  the 
articles  consumed  by  her  and  her  family  since  the  death  of  her  hus- 
band. 

Code,  s.  2130;  1868-9,  c.  93,  s.  22. 

3107.  Judgment,  if  the  material  allegations  of  the  complaint  be 
found  true,  the  judgment  shall  be  that  she  is  entitled  to  the  relief 
sought;  and  the  court  shall  thereupon  issue  an  order  to  the  sheriff 
or  other  jjroper  officer  of  the  county,  commanding  him  to  summon 
a  justice  of  the  peace  and  two  indifferent  persons  qualified  to  act 
as  jurors  of  the  county,  to  assign  to  the  plaintiff  from  the  crop, 
stock  and  provisions  of  the  deceased,  a  sufficiency  for  the  support 
of  herself  and  her  family,  for  one  year  from  the  death  of  her  hus- 
band ;  and  if  there  be  a  deficiency  thereof,  to  assess  such  deficiency, 
to  be  paid  by  the  personal  representative  from  the  personal  assets 
of  the  deceased,  deducting,  nevertheless,  in  all  cases  from  such  allow- 
ance the  articles,  or  the  value  thereof,  consumed  by  the  widow  and 
her  family  before  such  assignment,  and  also  any  sum  previously 
assigned  her. 

Code,  s.  2131;  1868-9,  c.  93,  s.  23. 

3108.  Duty  of  commissioners;  report.  The  said  conmiissioners 
shall  be  sworn  by  the  justice  and  shall  proceed  as  prescribed  in  this 
chapter,  except  that  the}'  may  assign  to  the  widow  a  value  sufficient 
for  the  support  of  herself  and  her  family  according  to  the  estate 
and  condition  of  her  husband  and  without  regard  to  the  limitation 
aforesaid  in  this  chapter;  but  the  value  allowed  shall  not  in  any 
case  exceed  the  one-half  of  the  annual  net  income  of  the  deceased 
for  three  years  next  preceding  his  death.  Their  report  shall  be 
returned  by  the  justice  to  the  court. 

Code,  s.  2132;   1868-9,  c.  93,  s.  24. 

3109.  Exceptions  by  interested  persons.  The  personal  repre- 
sentative, or  any  creditor,   distributee  or  legatee  of  the   deceased. 


3109  WIDOWS— TY.  Increased  Allowance.  Ch.  78 

within  twenty  days  after  the  return  of  the  report,  may  file  excep- 
tions thereto.  The  phiintiff  shall  be  notified  thereof  and  cited  to 
appear  before  the  court  on  a  certain  day,  within  twenty,  and  not 
less  than  ten  days  after  service  of  the  notice,  and  answer  the  same, 
the  case  shall  thereafter  be  proceeded  in,  heard  and  decided  as 
provided  in  special  proceedings  between  parties. 

Code,  s.  2133;   1868-9,  c.  93,  s.  25. 

3110.   Confirmation;  execution;  costs.   If  the  report  shall  be 

confirmed,  the  court  shall  so  declare,   and  execution  shall  issue  to 
enforce  the  judgment  as  in  like  cases. 
Code,  s.  2134;  1868-9,  c.  93,  s.  26. 


CHAPTEE  79. 
WILLS. 

Sections. 
I.     Execution,  3111—3114 

II.     Revocation,  3115—3118 

III.  Witnesses,  3119—3121 

IV.  Probate,  3122—3134 
V.     Caveat,                                                                   .3135—3137 

VI.     Construction,  3138—3146 

I.     Execution. 

3111.  Age  of  testators.  No  person  shall  be  capable  of  disposing 
of  real  or  personal  estate  by  will,  until  he  shall  have  attained  the  age 
of  twenty-one  years. 

Code,  s.  2137;  JR.  C,  c.  119,  s.  2;  1811,  c.  280. 

3112.  IVIarried  woman.  A  married  woman  owning  real  or  per- 
sonal property  may  dispose  of  the  same  by  will. 

Code,  s.  2138;  R.  C,  c.  119,  s.  3;  1844,  c.  88,  s.  8. 

3113.  How  executed.  No  last  will  or  testament  shall  be  good 
or  sufficient,  in  law,  to  convey  or  give  any  estate,  real  or  personal, 
unless  such  lust  will  shall  have  been  written  in  the  testator's  life- 
time, and  signed  by  him,  or  by  some  other  person  in  his  presence  and 
by  his  direction,  and  subscribed  in  his  ])resence  by  two  witnesses 
at  least,  no  one  of  whom  shall  be  interested  in  the  devise  or  bequest 
of  the  said  estate,  except  as  hereinafter  provided ;  or,  unless  such 
last  will  and  testament  be  found  among  the  valuable  papers  and 

934 


3113  WILLS— 7.  Execution.  Ch.  79 

effects  of  any  deceased  person,  or  shall  have  been  lodged  in  the  hands 
of  any  person  for  safe-keeping,  and  the  same  shall  be  in  the  hand- 
writing of  such  deceased  person,  with  his  name  subscribed  thereto, 
or  inserted  in  some  part  of  such  will ;  and  if  such  handwriting  shall 
be  proved,  by  three  credible  witnesses,  who  verily  believe  such  will 
and  every  part  thereof  is  in  the  handwriting  of  the  person  whose 
will  it  appears  to  be,  then  such  will  shall  be  sufficient  to  give  and 
convey  real  and  personal  estate. 

Code,  s.  2136;  R.  C,  c.  119,  s.  1;  1784,  c.  204,  s.  11;  1784,  c.  225,  s.  5;  1840, 
c.  62 ;  1846,  c.  54. 

3114.  Execution  of  appointments  by.  No  appointment,  made 
by  will  in  exercise  of  any  power,  shall  be  valid,  unless  the  same  be 
executed  in  the  manner  by  law  required  for  the  execution  of  wills; 
and  every  will,  executed  in  such  manner,  shall,  so  far  as  respects 
the  execution  and  attestation  thereof,  be  a  valid  execution  of  a  power 
of  appointment  by  will,  notwithstanding  it  shall  have  been  expressly 
required  that  a  will  made  in  exercise  of  such  power  should  be  exe- 
cuted with  some  additional  or  other  form  of  execution  or  solemnity. 

Code,  s.  2139;  R.  C,  e.  119,  s.  4;  1844,  c.  88,  s.  9. 

II.    Revocation. 

3115.  How  written  will  revoked.  No  will  or  testament  in  writ- 
ing, or  any  clause  thereof,  shall  be  revocable,  otherwise  than  by  some 
other  will  or  codicil  in  writing,  or  other  writing  declaring  the  same, 
or  by  burning,  canceling,  tearing,  or  obliterating  the  same,  by  the 
testator  himself,  or  in  his  presence  and  by  his  direction  and  consent; 
but  all  wills  or  testaments  shall  remain  and  continue  in  force,  until 
the  same  be  burnt,  canceled,  torn,  or  obliterated  by  the  testator,  or 
in  his  presence  and  by  his  consent  and  direction ;  or  unless  the  same 
be  altered  or  revoked  by  some  other  will  or  codicil  in  writing,  or 
other  writing  of  the  testator,  signed  by  him,  or  some  other  per- 
son in  his  presence  and  by  his  direction,  and  subscribed  in  his 
presence  by  two  witnesses  at  least;  or  unless  the  same  be  altered 
or  i-evoked  by  some  other  will  or  codicil  in  writing,  or  other  writing 
of  the  testator,  all  of  which  shall  be  in  the  handwriting  of  the  tes- 
tator, and  his  name  subscribed  thereto  or  inserted  therein,  and  lodged 
by  him  with  some  person  for  safe-keeping,  or  left  by  him  in  some 
secure  place,  or  among  his  valuable  papers  and  effects,  every  part  of 
which  will  or  codicil  or  other  writing  shall  be  proved  to  he  in  the 
handwriting  of  the  testator,  by  three  witnesses  at  least. 

Code,  s.  2176;  R.  C,  c.  119,  s.  22;  1784,  e.  204,  s.  14;  1819,  c.  1004,  ss.  1,  2; 
1840,  c.  62. 


3116  WILLS—//.  Revocaiion.  Ch.  79 

3116.  Revoked  by  marriage;  exception.  All  wills  shall  be  re- 
voked by  subsequent  marriage  of  the  maker  except  a  will  made  in 
exercise  of  a  j^ower  of  appointment,  when  the  real  or  personal  estate 
thereby  apjjointed  would  not,  in  default  of  such  a])])ointment,  pass 
to  his  heirs,  executor  or  administrator,  or  the  person  entitled  as  his 
next  of  kin,  under  the  statute  of  distributions. 

CoJe,  s.  2177;  R.  C,  c.  119,  s.  23;   1S44,  c.  88,  s.  10. 

3117.  Not  revoked  by  altered  circumstances.  Xo  will  shall  be 

revoked  by  any  presumption  of  an  intention  on  the  ground  of  an 
alteration    in    circumstances. 

Code,  s.  217S;  U.  C,  c.  119,  s.  24;  1844,  c.  88.  s.  11. 

3118.  Conveyance  after  execution  does  not.  Xo  conveyance  or 

other  act  made  or  done  subsequently  to  the  execution  of  a  will  of, 
or  relating  to  any  real  or  personal  estate  therein  comprised,  except 
an  act  by  Avhich  siich  will  shall  be  duly  revoked,  shall  prevent  the 
operation  of  the  will  with  respect  to  any  estate  or  interest  in  such 
real  or  personal  estate  as  the  testator  shall  have  power  to  dispose  of, 
by  will  at  the  time  of  his  death. 

Code,  s.  2179:  i\.  C,  c.  119,  s.  25;  1844,  c.  88,  s.  2. 

III.     Witnesses. 

3119.  Executors  competent.  No  person,  on  account  of  being  an 
executor  of  a  will,  shall  be  incompetent  to  be  admitted  a  witness  to 
prove  the  execution  of  such  will,  or  to  jirove  the  validity  or  invalidity 
thereof. 

Code,  s.  2140;  R.  C,  c.  119.  s.  9. 

3120.  Devise.  If  any  person  shall  attest  the  execution  of  any 
will,  to  whom  or  to  whose  wife  or  husband  any  beneficial  devise, 
estate,  interest,  legacy,  or  appointment  of  or  affecting  any  real  or 
personal  estate  shall  be  thereby  given  or  made,  such  devi.se,  estate, 
interest,  legacy,  or  appointment  shall,  so  far  only  as  concerns  such 
person  attesting  the  execution  of  such  will  or  the  wife  or  husband  of 
such  person,  or  any  person  claiming  imder  such  ])crson,  or  wife  or 
husband,  be  void ;  and  such  person  so  attesting  shall  be  admitted  as 
a  witness  to  prove  the  execution  of  such  will,  or  tlio  N'alidity  or  inva- 
lidity thereof. 

Code,  s.  2147;  R.  C,  c.  110,  s.  10. 

3121.  Witness  dead,  affidavits  evidence,  when,  wiienevcr  the 

.subscriliiug  witness  to  any  will  sliall  die,  or  be  absent  beyond  the 
state,  it  shall  be  competent  upon  any  issue  of  devisavit  vel  non,  to 
give  in  evidence  the  affidavits  and  proofs  taken  by  the  clerk  upon 


3121  WILLS—///.   Witnesses.  Ch.   79 

admitting  the  will  to  probate  in  common  form,  and  such  affidavit 
and  proceedings  before  the  clerk  shall  be  prima  facie  evidence  of 
the  due  and  legal  execution  of  said  will. 
1899,  c.  680,  s.  2. 

IV.     Probate. 

3122.  Executor  may  apply  for.  Any  executor  named  in  a  will 
may,  at  any  time  after  the  death  of  the  testator,  apply  to  the  clerk 
of  the  superior  court,  having  jurisdiction,  to  have  the  same  admitted 
to  probate. 

Code,  3.  2151 ;  C.  C.  P.,  s.  439. 

3123.  Executor  failing,  who  may  apply.  If  no  executor  apply 

to  have  the  will  proved  within  sixty   days  after  the  death  of  the 
testator,  any  devisee  or  legatee  named  in  the  will,  or  any  other  per- 
son interested  in  the  estate,  may  make  such  application,  upon  ten 
days'  notice  thereof  to  the  executor. 
Code,  s.  2152;  C.  C.  P.,  s.  440. 

3124.  Production  of  will  for,  compelled.  Every  clerk  of  the  supe- 
rior court  having  jurisdiction,  on  application  by  affidavit  setting 
forth  the  facts,  shall,  by  summons,  compel  any  person  in  the  state, 
having  in  possession  the  last  will  of  any  decedent,  to  exhibit  the 
same  in  his  court  for  probate ;  and  whoever  being  duly  summoned 
refuses,  in  contempt  of  the  court,  to  produce  such  will,  or  (the  same 
having  been  parted  with  by  him)  refuses  to  inform  the  court  on  oath 
where  such  will  is,  or  in  what  manner  he  has  disposed  of  it,  shall, 
by  order  of  the  clerk  of  the  superior  court,  be  committed  to  the 
jail  of  the  county,  there  to  remain  without  bail  till  such  will  be  pro- 
duced or  accounted  for,  and  due  submission  made  for  the  contempt. 

Code,  s.  2154;  C.  C.  P.,  s.  442. 

3125.  What  shown  on  application.    On  application  to  the  clerk 

of  the  superior  court,  he  must  ascertain  by  affidavit  of  the  applicant : 

1.  That  such  applicant  is  the  executor,  devisee  or  legatee  named 
in  the  will,  or  is  some  other  person  interested  in  the  estate,  and  how 
so  interested. 

2.  The  value  and  nature  of  the  testator's  property,  as  near  as  can 
be  ascertained. 

3.  The  names  and  residences  of  all  parties  entitled  to  the  testa- 
tor's property,  if  known,  or  that  the  same  on  diligent  inquiry  can 
not  be  discovered ;  which  of  said  parties  in  interest  are  minors,  and 
whether  with  or  without  guardians,  and  the  names  and  residences  of 
such  guardians,   if  known.     Such  affidavit  shall  be  recorded  with 


3125  WILLS— 7T'.  Probate.  Ch.  79 

the  will  and  the  certificate  of  probate  thereof,  if  the  same  is  admitted 
to  probate. 

Code,  s.  2153;  C.  C.  P.,  s.  441. 

3126.  Proof  and  examination  in  writing.  Every  clerk  of  the  su- 
perior court  shall  take  in  writing  the  proofs  and  examinations  of 
the  witnesses  touching  the  execution  of  a  will,  and  he  shall  embody 
the  substance  of  such  proofs  and  examinations,  in  case  the  will  is 
admitted  to  probate,  in  his  certificate  of  the  probate  thereof,  which 
certificate  must  be  recorded  M'ith  the  will.  The  proofs  and  examina- 
tions as  taken  must  be  filed  in  the  office. 

Code,  s.  2149;  C.  C.  P.,  s.  437. 

3127.  How  admitted  to  probate.  Wills  and  testaments  must  be 
admitted  to  probate  onlj  in  the  following  manner : 

1.  In  case  of  a  written  will,  with  witnesses,  on  the  oath  of  at 
least  two  of  the  subscribing  witnesses,  if  living;  but  when  any  one 
or  more  of  the  subscribing  witnesses  to  such  will  are  dead,  or  reside 
out  of  the  state,  or  can  not  after  duo  diligence  be  found  within  the 
state,  or  are  insane  or  otherwise  incompetent  to  testify,  then  sucli 
proof  may  be  taken  of  the  handwriting,  both  of  the  testator  and 
of  the  witness  or  witnesses  so  dead,  absent,  insane  or  incompetent, 
and  also  of  such  other  circumstances  as  will  satisfy  the  clerk  of  the 
superior  court  of  the  genuineness  and  the  due  execution  of  such  will. 
In  all  cases  where  the  testator  executed  the  will  by  making  his  mark, 
and  where  any  one  or  more  of  the  subscribing  witnesses  are  dead  or 
reside  out  of  the  state,  or  are  insane  or  otherwise  incompetent  to  tes- 
tify, it  shall  not  be  necessary  to  prove  the  handwriting  of  the  testator, 
but  proof  of  the  handwriting  of  the  subscribing  witness  or  witnesses 
so  dead,  absent,  insane  or  incompetent  shall  be  sufficient.  The  pro- 
bate of  all  wills  heretofore  taken  in  compliance  with  the  require- 
ments of  this  section  are  hereby  declared  to  be  valid. 

2.  In  case  of  a  hologi-aph  M'ill,  on  the  oath  of  at  least  three  credi- 
ble witnesses,  who  state  that  they  verily  believe  such  will  and  every 
part  thereof  is  in  the  handwriting  of  the  person  Avhose  will  it  pur- 
ports to  be,  and  whose  name  must  be  subscribed  thereto,  or  inserted 
in  some  part  thereof.  It  must  further  appear  on  the  oath  of  some 
one  of  said  witnesses,  or  of  some  other  credible  person,  that  such  will 
was  found  among  the  valuable  papers  and  efi^ects  of  the  decedent, 
or  was  lodged  in  the  hands  of  some  person  for  safe-keeping. 

3.  In  case  of  a  nuncupative  will,  on  the  oath  of  at  least  two  credi- 
ble witnesses  present  at  the  making  thereof,  who  state  that  they  were 
specially  required  to  bear  witness  thereto  by  the  testator  himself.  It 
must  also  be  proved  that  such  nuncupative  will  was  made  in  the 
testator's  last  sickness,  in  his  own  habitation,  or  where  he  had  been 


3127  WILLS— ZF.  Probate.  Ch.  79 

previously  resident  for  at  least  ten  days,  unless  he  died  on  a  journey 
or  from  home.  No  nuncupative  will  shall  be  proved  by  the  wit- 
nesses after  six  months  from  the  making  thereof,  unless  it  was  put 
in  writing  within  ten  days  from  such  making ;  nor  shall  it  be  proved 
till  a  citation  has  been  first  issued  or  publication  been  made  for  six 
weeks  in  some  newspaper  published  in  the  state,  to  call  in  the  widow 
and  next  of  kin  to  contest  such  will  if  they  think  proper. 
Code,  s.  2148;  1893,  c.  269;  1901,  c.  276;  C.  C.  P.,  s.  435. 

3128.  How  far  probate  conclusive.  Such  record  and  probate  is 
conclusive  in  evidence  of  the  validity  of  the  will,  imtil  it  is  vacated 
on  appeal  or  declared  void  by  a  competent  tribunal. 

Code,  s.  2150;   C.  C.  P.,  s.  438. 

3129.  Wills  filed  in  clerk's  office.  All  original  wills  shall  remain 
in  the  clerk's  ofiice,  among  the  records  of  the  court,  where  the  same 
shall  be  proved,  and  to  the  said  wills  any  person  may  have  access,  as 
to  the  other  records. 

Code,  s.  2173;  R.  C,  c.  119,  s.  19;  1777,  c.  115,  s.  59. 

3130.  Certified  copy  of  will  proved  in  another  state.  When  a 

will,  made  by  a  citizen  of  this  state,  is  proved  and  allowed  in  some 
other  state  or  country,  and  the  original  will  can  not  be  removed  from 
its  place  of  legal  deposit  in  such  other  state  or  country,  for  probate 
in  this  state,  the  clerk  of  the  superior  court  of  the  county  where  the 
testator  had  his  last  usual  residence  or  has  any  property,  upon  a  duly 
certified  copy  or  exemplification  of  such  will  being  exhibited  to  him 
for  probate,  shall  take  every  order  and  proceeding  for  proving, 
allowing  and  recording  said  copy  as  by  law  might  be  taken  upon 
the  production  of  the  original. 

Code,  s.  2157;  C.  C.  P.,  s.  445;  E.  C,  e.  44,  s.  9;  1802,  e.  623. 

Note.     See  s.  1619. 

3131.  Made  out  of  state,  how  proven.  Whenever  it  is  suggested 
to  the  clerk  of  the  superior  court,  b}'  affidavit  or  otherwise,  that  a 
will  has  been  made  without  the  state,  or  that  a  will  has  been  made 
in  the  state,  and  the  witnesses  thereto  have  moved  out  of  the  state, 
disposing  of  or  charging  land  or  other  property  within  the  state,  the 
clerk  of  the  superior  court  of  the  county  where  the  property  is  situ- 
ated may  issue  a  commission  to  such  person  as  he  may  select,  author- 
izing the  commissioner  to  take  the  examination  of  such  witnesses  as 
may  be  produced,  touching  the  execution  thereof,  and  upon  return 
of  such  commission,  with  the  examination,  he  may  adjudge  the  said 
will  to  be  dul}'  proved  or  otherwise,  as  in  cases  on  the  oral  examin- 
ation of  witnesses  before  him,  and  if  duly  proved,  such  will  shall  be 
recorded. 

Code,  s.  2155;  1899,  c.  55;  C.  C.  P.,  s.  443. 


3132  WILLS— 7F.  Prolate.  Ch.  79 

3132.  Where  witnesses  reside  in  different  county,  how  proven. 

When  a  will  is  offered  for  probate  in  one  eo\uity  (il'  this  state  and 
the  witnesses  reside  in  another  county,  the  elerk  nt'  the  court  be- 
fore Avhom  such  will  is  offered  shall  have  power  and  authority 
to  issue  a  subpoena  for  said  witnesses  requiring  them  to  appear 
before  him  and  jirove  said  will ;  and  said  clerk  shall  likewise  have 
power  and  authority  to  issue  a  commission  to  take  the  deposition 
of  said  witnesses  when  they  reside  more  than  seventy-five  miles 
from  the  place  where  the  will  is  to  be  probated,  such  deposition  and 
commission  to  be  returned  and  the  clerk  to  adjudge  the  will  to  be 
duly  proven. 
1899,  c.  55. 

3133.  Nonresident's  will,  recorded;  proof.  Whenever  any  will 

made  by  a  citizen  or  subject  (if  any  other  state  or  country  is  duly 
I^roved  and  allowed  in  sucli  state  or  country  according  to  the  laws 
thereof,  a  copy  or  exemplification  of  such  will,  duly  certified  and 
authenticated  by  the  clerk  of  the  court  in  which  such  will  has  been 
proved  and  allowed,  if  within  the  LTnitcd  States,  or  by  any  ambassa- 
dor, minister,  consul  or  commercial  agent  of  the  United  States  under 
his  official  seal  when  produced  or  exhibited  before  the  clerk  of  the 
superior  court  of  any  county  wherein  any  property  of  the  testator 
may  be,  shall  be  allowed,  filed  and  recorded  in  the  same  maimer 
as  if  the  original  and  not  the  copy  had  been  produced,  proved  and 
allowed  before  siich  clerk.  But  when  any  will  contains  any  devise 
or  disposition  of  real  estate  in  this  state,  such  devise  or  disposition 
shall  not  have  any  validity  or  operation,  unless  the  will  is  executed 
according  to  the  laws  of  this  state ;  and  that  fact  must  appear  affirma- 
tively in  the  certified  probate  or  exemplification  of  the  will ;  and  if 
it  do  not  so  appear,  the  clerk  before  whom  the  copy  is  exhibited  shall 
have  poAver  to  issue  a  commission  for  taking  proofs,  touching  the 
execution  of  the  Avill,  as  prescribed  in  the  preceding  section;  and  the 
same  may  be  adjudged  duly  proA'ed,  and  shall  be  recorded  as  herein 
provided. 

Code,  s.  2156;  1885,  c.  393;  C.  C.  P.,  s.  444;  1883,  c.  144. 

3134.  Probates  validated.  In  all  cases  of  the  prolmte  of  any  will 
heretofore  made  in  common  form  before  any  clerk  of  the  superior 
courts  of  this  state,  where  the  testimony  of  the  subscribing  witnesses 
has  been  taken  in  the  state  or  out  of  it  by  any  commissioner  ap- 
pointed by  said  clerk  or  taken  by  any  other  clerk  of  the  superior 
court  in  any  other  county  of  this  state,  and  the  will  admitted  to 
probate  upon  such  testimony,  the  proceedings  arc  validated. 

1899,  c.  680. 


3135  WILLS— y.  Caveat.  Ch.  79 

V.     Caveat. 

3135.  When  and  how  filed.    At  the  time  of  application  for  the 

probate  of  any  will,  or  at  any  time  thereafter,  as  prescribed  by  law, 
any  person  entitled  under  such  will  or  interested  in  the  estate  may 
appear  in  person  or  by  attorney  before  the  clerk  of  the  superior 
court,  and  enter  a  caveat  to  the  probate  of  such  will. 
Code,  s.  2158;  C.  C.  P.,  s.  446. 

3136.  Cause  transferred  to  trial  docl<et,  when.  Upon  any  cave- 
ator giving  bond,  with  sufficient  surety  to  be  approved  by  the  clerk,  in 
the  sum  of  two  hundred  dollars,  payable  to  the  propounder  of  the 
will,  conditioned  to  pay  all  costs  which  may  be  adjudged  against  such 
caveator  in  the  superior  coiirt,  by  reason  of  his  failure  to  prosecute 
his  suit  with  effect,  or  deposit  the  money  or  give  a  mortgage  in  lieu 
of  such  bond,  or  shall  file  affidavits  and  satisfy  the  said  clerk  of  his 
inability  to  give  such  bonds  or  secure  such  costs,  the  clerk  shall  trans- 
fer the  cause  to  the  superior  court  for  trial;  and  he  shall  also  forth- 
with issue  a  citation  to  all  devisees,  legatees  or  other  parties  in  inter- 
est within  the  state,  and  cause  publication  to  be  made,  for  si.x  weeks, 
in  some  newspaper  printed  in  the  state,  for  nonresidents  to  a])pea?' 
at  the  term  of  the  superior  court,  to  which  the  proceeding  is  trans- 
ferred, and  to  make  themselves  proper  parties  to  the  said  proceeding, 
if  they  choose.  At  the  term  of  said  court  to  which  such  proceeding 
is  transferred,  or  as  soon  thereafter  as  motion  to  that  effect  shall  be 
made  by  the  propoimder,  and  before  trial,  the  judge  shall  require 
any  of  the  persons  so  cited,  either  those  who  make  themselves  parties 
with  the  caveators,  or  whose  interest  appear  to  him  antagonistic  to 
that  of  the  propounders  of  the  will,  and  who  shall  appear  to  him  to 
be  able  so  to  do,  to  file  such  bond  within  such  time  as  he  shall  direct 
and  before  trial,  and  on  failure  to  file  said  bond  the  judge  shall  dis- 
miss the  proceeding. 

Code,  s.  2159;  1899,  e.  13;  1901,  c.  748;  C.  C.  P.,  s.  447. 

3137.  Filing  of,  suspends  proceedings  under  will.    Where  a 

caveat  is  entered  and  bond  given,  the  clerk  of  the  superior  court 
shall  forthwith  issue  an  order  to  any  personal  representative,  having 
the  estate  in  charge,  to  suspend  all  further  proceedings  in  relation 
to  the  estate,  except  the  preservation  of  the  property  and  the  collec- 
tion of  debts,  until  a  decision  of  the  issue  is  had. 
Code,  s.  2160;  C.  C.  P.,  s.  448. 

VI.       COXSTKUCTION. 

3138.  Devise  presumed  a  fee  simple.  When  real  estate  shall  be 
devised  to  any  person,  the  same  shall  be  held  and  construed  to  be 

941 


3138  "WILLS— F/.   Construction.  Ch.  79 

a  devise  in  fee  simple,  unless  such  devise  shall,  in  plain  and  express 
words,  show,  or  it  shall  be  plainly  intended  by  the  will,  or  some 
part  thereof,  that  the  testator  intended  to  convey  an  estate  of  less 
dignity. 

Code,  s.  2180;  R.  C,  c.  119,  s.  26;  1784,  e.  204,  s.  12. 

3139.  Valid  only  after  probate;  conclusiveness  of  probate. 

i^o  will  shall  be  effectual  to  pass  real  or  personal  estate,  unless  it 
shall  have  been  duly  proved  and  allowed  in  the  probate  court  of  the 
jiroper  county,  and  a  duly  certified  copy  thereof  shall  be  recorded 
in  the  office  of  the  superior  court  clerk  of  the  county  wherein  the  land 
is  situate,  and  the  probate  of  a  will  devising  real  estate  shall  be  con- 
chisive  as  to  the  execution  thereof,  against  the  heirs  and  devisees 
of  the  testator,  whenever  the  probate  thereof,  under  the  like  circum- 
stances, would  be  conclusive  against  the  next  of  kin  and  legatees  of 
the  testator. 

Code,  s.  2174;  K.  C,  c.  119,  s.  20;  1784,  c.  225,  s.  6. 

3140.  What  property  passes  by  will.  Any  testator,  by  his  will 
duly  executed,  may  devise,  bequeath,  or  dispose  of  all  real  and  per- 
sonal estate,  which  he  shall  be  entitled  to  at  the  time  of  his  death,  and 
which,  if  not  so  devised,  bequeathed,  or  disposed  of,  would  descend 
or  devolve  upon  his  heirs  at  law,  or  upon  his  executor  or  adminis- 
trator; and  the  power  hereby  given  shall  extend  to  all  contingent, 
executory,  or  other  future  interest  in  any  real  or  personal  estate, 
whether  the  testator  may  or  may  not  be  the  person  or  one  of  the  per- 
sons, in  whom  the  same  may  become  vested,  or  whetlier  he  may  be 
entitled  thereto  under  the  instrument  by  which  the  same  was  created, 
or  under  any  disposition  thereof  by  deed  or  will ;  and  also  to  all 
rights  of  entry  for  conditions  broken,  and  other  rights  of  entry; 
and  also  to  such  of  the  same  estates,  interests,  and  rights  respect- 
ively, and  other  real  and  personal  estate,  as  the  testator  may  be 
entitled  to,  at  the  time  of  his  death,  notwithstanding  that  he  may 
become  entitled  to  the  same  subsequently  to  the  execution  of  his  will. 

Code,  s.  2140;  R.  C,  c.  119,  s.  5;  1844,  e.  88,  s.  1. 

3141.  Speak  as  of  death  of  testator.  Every  will  shall  be  con- 
strued with  reference  to  the  real  and  personal  estate  comprised 
therein,  to  speak  and  take  effect,  as  if  it  had  been  executed  immedi- 
ately before  the  death  of  the  testator,  unless  a  contrary'  intention 
shall  appear  by  the  will. 

Code,  s.  2141;  R.  C,  c.  119,  s.  10;   1844,  c.  88,  s.  3. 

3142.  Lapsed  and  void  devises  pass  under  residuary  clause. 

Unless  a  contrary  intention  shall  appear  by  the  will  such  real  estate 

942 


3142  WILLS— 77.   Construction:  Ch.  79 

or  interest  therein,  as  shall  be  comprised  or  intended  to  be  comprised 
in  any  devise  in  such  will  contained,  which  shall  fail  or  be  void  by 
reason  of  the  death  of  the  devisee  in  the  lifetime  of  the  testator,  or 
by  reason  of  such  devise  being  contrary  to  law  or  otherwise  inca- 
pable of  taking  effect,  shall  be  included  in  the  residuary  devise  (if 
any)  contained  in  such  will. 

Code,  s.  2142;  R.  C,  c.  119,  s.  7;  1844,  c.  88,  s.  4. 

3143.  General  gift  includes  estate  to  which  testator  has  power 

to  appoint.  A  general  devise  of  the  real  estate  of  the  testator,  or 
of  his  real  estate  in  any  place  or  in  the  occupation  of  any  person 
mentioned  in  the  will,  or  otherwise  described  in  a  general  manner, 
shall  be  construed  to  include  any  real  estate,  or  any  real  estate  to 
which  such  description  shall  extend,  as  the  case  may  be,  which  he  may 
have  power  to  ajjpoint  in  any  manner  he  may  think  proper ;  and 
shall  operate  as  an  execution  of  such  power,  unless  a  contrary  inten- 
tion shall  appear  by  the  will;  and  in  like  manner  a  bequest  of  the 
personal  estate  of  the  testator,  or  any  bequest  of  personal  property, 
described  in  a  general  manner,  shall  be  construed  to  inchide  any  per- 
sonal estate,  or  any  personal  estate  to  which  such  description  shall 
extend,  as  the  case  may  be,  which  he  may  have  power  to  appoint 
in  any  manner  he  may  think  proper,  and  shall  operate  as  an  exe- 
cution of  such  piower,  unless  a  contrary  intention  shall  appear  by 
the  will. 

Code,  s.  2143;  R.  C,  c.  119,  s.  8;   1844,  c.  88,  s.  5. 

3144.  Gifts  to  children  dying,  pass  to  issue.  When  any  per- 
son, being  a  child  or  other  issue  of  the  testator,  to  whom  anj'  real 
or  personal  estate  shall  be  devised  or  bequeathed  for  any  estate  or 
interest  not  determinable  at  or  before  the  death  of  such  person,  shall 
die  in  the  lifetime  of  the  testator,  leaving  issue,  and  any  such  issue 
of  such  person  as  shall  be  living  at  the  death  of  the  testator,  such 
devise  or  bequest  shall  not  lapse,  but  shall  take  effect  and  vest  a 
title  to  such  estate  in  the  issue  surviving,  if  there  be  any,  in  the  same 
manner,  proportions  and  estates  as  if  the  death  of  such  person  had 
happened  immediately  after  the  death  of  the  testator,  unless  a  con- 
trary intention  shall  appear  by  the  will. 

Code,  s.  2144;   18C8-9,  c.  113.  s.  61. 

3145.  Void  as  to  after-born  child.  Children  born  after  the  mak- 
ing of  the  parent's  will,  and  whose  parent  shall  die  without  making 
any  provision  for  them,  shall  be  entitled  to  such  share  and  propor- 
tion of  said  jjarent's  estate  as  if  he  or  she  had  died  intestate,  and  the 
rights  of  any  such  after-born  child  shall  be  a  lien  on  every  part  of 


3145 


WILLS — VI.   Vonslrud'wn. 


Ch.  79 


the  parent's  estate,  imtil  his  several  share  thereof  is  set  apart  in  the 
manner  jirescribed  in  this  chapter. 

Code,  s.  2145;   1808-9,  c.  113,  s.  62. 

3146.   Administrator  c.  t.  a.  must  observe  will.   In  all  cases 

where  letters  of  administration  with  the  will  annexed  are  granted, 
the  will  of  the  testator  must  be  observed  and  performed  by  the 
administrator  with  the  will  annexed,  both  in  respect  to  real  and 
personal  property,  and  an  administrator  with  the  will  annexed  has 
all  the  rights  and  powers,  and  is  subject  to  the  same  duties  as  if 
he  had- been  named  executor  in  the  will. 
Code,  s.  2168;  C.  C.  P.,  s.  455. 


Note.     For  matters  relating  to  the  administration  of  the  estate,  see  chapter 
Administration. 


CHAPTER  80. 


CRIMINAL    PROCEDURE. 


I. 

General  provisions, 

II. 

Warrants, 

III. 

Search  warrants, 

IV. 

Peace  warrants, 

V. 

Arrest, 

VI. 

Fugitives, 

VII. 

Preliminary  hearing. 

VIII. 

Bail, 

IX. 

Forfeited  bail. 

X. 

Commitment, 

XI. 

Venue, 

XII. 

Presentment, 

XIIT. 

Indictment, 

XIV. 

Trial  oefore  justice. 

XV. 

Trial,  superior  court. 

XVI. 

Appeal. 

XVII. 

Execution, 

Sections. 
3147—3155 
3156—3162 
3163—3164 
316.5—3175 
3176—3182 
3183—3189 
3190—3206 
3207— .3213 
3214—3229 
3230—3232 
3233—3239 
3240—3241 
3242—3255 
3256—3261 
3262—3273 
3274—3283 
3284—3286 


I.     General  Provisions. 


3147.  Limitations,  indictments  for  misdemeanor.  All  misde- 
meanors, except  the  offenses  of  perjury,  forgery,  malicious  mischief, 
and  other  malicious  misdemeanors,  deceit,  and  the  offense  of  being 
acces.sory  after  the  fact,  now  made  a  misdemeanor,  sliall  be  presented 
or  found  by  the  grand  jury  within  two  years  after  the  commission 
of  the  same  and  not  afterwards:  Provided,  that  in  case  any  of  the 


3147  CEIMIIS^AL  PROCED.— 7.   Gen.  Provisions.  Ch.   80 

said  misdemeanors,  hereby  required  to  be  prosecuted  within  two 
years,  shall  have  been  committed  in  a  secret  manner,  the  same  may  be 
prosecuted  within  two  years  after  the  discovery  of  the  offender :  Pro- 
vided further,  that  if  any  indictment  found  within  that  time  shall 
bo  defective,  so  that  no  judgment  can  be  given  thereon,  another  prose- 
cution may  be  instituted  for  the  same  offense,  within  one  year  after 
the  first  shall  have  been  abandoned  by  the  state. 
Code,  s.  1177;  R.  C,  e.  35,  s.  8;  1826,  c.  11. 

3148.  When  criminal  process  issued  and  returned.  All  process, 

warrants  and  precepts,  issued  by  any  judge  nr  justice  of  the  peace, 
or  clerk  of  any  court,  on  any  criminal  prosecution,  may  issue  at 
any  time,  and  be  made  returnable  to  any  day  of  the  term  of  the 
court,  to  which  such  warrant,  process,  or  precept  is  returnable. 
Code,  s.  1178;  E.  C,  c.  35,  s.  9;  1777,  c.  115,  s.  15. 

3149.  Process,  how  endorsed.  Every  sheriff  or  other  officer  shall 
indorse  on  all  process  and  subpoenas  issuing  in  criminal  cases, 
whether  for  the  state  or  defendant,  the  day  when  such  process 
and  subpoenas  came  to  hand,  and  also  the  day  of  their  execution ; 
and  on  failure  of  any  sheriff  or  other  officer  to  perform  either  of 
said  duties  he  shall  forfeit  and  pay  the  sum  of  ten  dollars  for  every 
case  of  neglect,  to  be  recovered  for  the  use  of  the  state,  in  the  same 
manner  as  forfeitures  are  recovered  against  sheriffs  by  parties  in 
civil  suits  for  failure  to  make  due  return  of  process  delivered  to 
them. 

Code,  s.  1179;  R.  C,  c.  35,  s.  10;  1850-1,  c.  57. 

3150.  Accused  entitled  to  counsel.  Every  person,  accused  of 
any  crime  whatsoever,  shall  be  entitled  to  counsel  in  all  matters 
which  may  be  necessary  for  his  defense. 

Code,  s.  1182;  R.  C,  c.  35,  s.  13;   1777,  c.  115,  s.  85. 

3151.  Where  persons  may  be  imprisoned.  No  person  shall  be 

imprisoned  by  any  judge,  court,  justice  of  the  peace,  or  other  peace 
officer  except  in  the  common  jail  of  the  county,  unless  otherwise 
provided  by  law :  Provided,  that  whenever  the  sheriff  of  any  county 
shall  be  imprisoned,  he  may  be  imprisoned  in  the  jail  of  any  adjoin- 
ing county. 

Code,  s.  1174;  R.  C,  c.  35,  s.  6;  1797,  e.  474,  s.  3;  1879.  c.  12. 

3152.  Who  may  direct  post-mortem  examination.  In  all  cases 

of  homicide,  any  officer  prosecuting  for  the  state  may,  at  any  time, 
direct  a  post-mortem  examination  of  the  deceased  to  be  made  by  one 
or  more  physicians  to  be  summoned  for  the  purpose ;  and  the  physi- 
cians shall  be  paid  a  reasonable  compensation  for  such  examination. 

Rev.  Vol.  1—56  945 


3152  CRIMIX.VL  PEOCED.— /.   Gen.  Provisions.  Cli.   80 

the  amount  to  be  determined  by  the  court  and  taxed  in  the  costs, 
and  if  not  collected  out  of  the  defendant  the  same  shall  be  paid  by 
the  county. 

Code,  s.  1214;  R.  C,  c.  35,  s.  49. 

3153.  Stolen  property  returned  to  owner.  Upon  the  conviction 

of  any  felon  for  robbing  or  stealing  any  money,  goods,  chattels,  or 
other  estate  of  any  description  whatever,  the  person  from  whom  such 
goods,  money,  chattels  or  other  estate  were  robbed  or  stolen,  shall 
be  entitled  to  restitution  thereof;  and  the  court  may  award  resti- 
tution of  the  articles  so  robbed  or  stolen,  and  make  all  such  orders 
and  issue  such  writs  of  restitution  or  otherwise,  as  may  be  neces- 
sary for  that  purpose. 

Code,  s.  1201:  R.  C,  c.  35.  s.  34;  21  Hen.  VIII. ,  c.  11. 

3154.  Magistrate  may  associate  another  witli  him.  It  shall  be 

lawful  for  any  magistrate,  to  M-hom  any  ei;)mplaint  may  be  made,  or 
before  whom  any  prisoner  may  be  brought,  as  by  law  provided,  to 
associate  with  himself  any  other  magistrate  of  the  same  county ;  and 
the  powers  and  duties  herein  mentioned  may  be  executed  by  such 
two  magistrates  so  associated. 

Code,  s.  1159;   1808-9,  c.  178.  siibc.  3,  s.  28. 

3155.  Commitments  for  felonies,  when  tried  or  discharged. 

When  any  person  who  has  been  committed  for  treason  or  felony, 
plainly  and  specially  expressed  in  the  warrant  of  commitment,  upon 
his  prayer  in  open  court  to  be  brought  to  his  trial,  shall  not  be  in- 
dicted some  time  in  the  next  term  of  the  superior  or  criminal  court 
ensuing  such  commitment,  the  judge  of  the  court,  upon  notice  in 
open  court  on  the  last  Aay  of  the  term,  shall  set  at  liberty  such  pris- 
oner ujjon  bail,  unless  it  appear  upon  oath  that  the  witnesses  for  the 
state  could  not  be  produced  at  the  same  term ;  and  if  such  prisoner, 
upon  his  prayer  as  aforesaid,  shall  not  be  indicted  and  tried  at  the 
second  term  of  the  court,  he  shall  be  discharged  from  his  imprison- 
ment. 

Code,  s.  1658;  1868-9,  c.  UG,  s.  33. 


Note.     Pleadings  ineompetent  in  criminal  proceedings,  see  s.  493. 

II.      Wakk.vnts. 

3156.  Who  may  issue.  The  following  persons  respectively  shall 
have  power  to  issue  ])rocess  for  the  ap])rchension  of  persons  charged 
with  any  offense,  and  to  execute  the  powers  and  duties  conferred  in 
this  clia]itcr,   namely:   Tiie  chief  justice   and  the   as.sociatc  justices 


33  56  CRIMIXAL  PEOCED.— //.   ]yarra)its.  Ch.   80 

of  the  supreme  court,  the  judges  of  the  superior  court,  judges  of 
crimiual  courts,  presiding  officers  of  inferior  courts,  justices  of  the 
peace,  mayors  of  cities,  or  other  chief  officers  of  incorporated  towns. 
Code,  s.  1132;  1868-9.  c.  178,  subc.  .3,  s.  1. 

3157.  Complainant  examined  on  oath.    Whenever  complaint 

shall  be  made  to  any  such  magistrate  that  a  criminal  offense  has  been 
committed  within  this  state,  or  without  this  state  and  within  the 
United  States,  and  that  a  person  charged  tlierewith  is  in  this  state, 
it  shall  be  the  duty  of  such  magistrate  to  examine  on  oath  the  com- 
plainant and  any  witnesses  who  may  be  produced  by  him. 

Code,  s.  1133;   1868-9,  c.  178,  subc.  3,  s.  2. 

3158.  When  to  issue;  contains  what;  to  whom  directed.  If  it 

shall  appear  from  such  examination  that  any  criminal  offense  has 
been  committed,  the  magistrate  shall  issue  a  jDroper  warrant  under 
his  hand,  with  or  without  seal,  reciting  the  accusation,  and  command- 
ing the  officer,  to  whom  it  shall  be  directed  (the  justice  of  the  peace 
or  a  chief  officer  of  a  city  or  town,  shall  direct  his  warrant  to  the 
sheriff  or  other  lawful  officers  of  his  county"),  forthwith  to  take  the 
])erson  accused  of  having  committed  such  offense,  and  bring  him 
before  a  magistrate,  to  be_  dealt  with  according  to  law. 
Code,  s.  1134;  1901,  e.  668;  1*868-9,  c.  178,  subc.  3,  s.  3. 

3159.  Where  to  run.  Warrants  issued  by  any  justice  of  the  su- 
preme court,  or  by  any  judge  of  the  superior  court,  or  of  a  criminal 
court,  may  be  executed  in  any  part  of  this  state ;  warrants  issued  by 
a  justice  of  the  peace,  or  by  the  chief  officer  of  any  city  or  incorpo- 
rated town,  may  be  executed  in  any  part  of  the  county  of  such  jus- 
tice, or  in  which  such  city  or  town  is  situated,  and  on  any  river,  bay 
or  sound  forming  the  boundary  between  that  and  some  other  county, 
and  not  elsewhere,  unless  indorsed  as  prescribed  in  the  section  fol- 
lowing. 

Code,  s.  1135;  1S68-9,  c.  178,  subc.  3,  s.  4. 

3160.  How  endorsed;  what  officer  compelled  to  serve.   If  the 

person  against  whom  any  warrant  shall  be  issued  by  any  justice  of 
the  peace  or  chief  officer  of  a  city  or  town  shall  escape,  or  be  in  any 
other  county  out  of  the  jurisdiction  of  such  justice  or  chief  officer, 
it  shall  be  the  duty  of  any  justice  of  the  peace,  or  any  other  magis- 
trate within  the  county  where  such  offender  shall  be,  or  shall  be  sus- 
pected to  be,  upon  proof  of  the  handwriting  of  the  magistrate  or 
chief  officer  issuing  the  warrant,  to  indorse  his  name  on  the  same, 
and  thereupon  the  person,  or  officer  to  whom  the  warrant  was  di- 
rected, may  arrest  the  offender  in  that  county.     The  justice  of  the 


3160  CRIMIXAL  PROCED.— //.   Warrayits.  Ch.  80 

peace  or  a  chief  officer  of  a  city  or  town  shall  direct  his  warrant  to 
the  sheriff  or  other  lawful  officers  of  his  county,  and  such  warrant 
•  when  endorsed  as  herein  prescribed  shall  authorize  and  compel  the 
sheriff  or  other  officer  of  any  county  in  the  state,  in  which  such 
endorsement  is  made,  to  execute  the  same. 

Code,  s.  1136;  1901,  c.  668;  1868-9,  c.  178,  subc.  3,  s.  5. 

3161.  Magistrate  endorsing,  not  liable  to  action.  Xo  magistrate 

shall  be  liable  to  any  indictment,  action  for  trespass  or  other  action 
for  having  indorsed  any  warrant  pursuant  to  the  provisions  of  the 
last  section,  although  it  should  afterward  appear  that  such  warrant 
was  illegally  or  improperly  issued. 
Code,  s.  1137;  1868-9,  c.  178,  subc.  3,  s.  6. 

3162.  Before  what  magistrate  returnable.    Persons  arrested 

under  any  warrant  issued  for  any  offense,  where  no  provision  is 
otherwise  made,  shall  be  brought  before  the  magistrate  who  issued 
the  warrant;  or,  if  he  be  absent,  or  from  any  cause  unable  to  try 
the  case,  before  the  nearest  magistrate  in  the  same  county ;  and  the 
warrant,  by  virtue  of  which  the  arrest  shall  have  been  made,  with 
a  proper  return  indorsed  thereon  and  signed  by  the  officer  or  person 
making  the  arrest,  shall  be  delivered  to  such  magistrate. 
Code,  s.  1143;  1868-9,  c.  178,  subc.  3,  s.  12. 

III.     Search  Warrants. 

3163.  How  issued;  when  to  run.  If  any  credible  witness  shall 
prove,  upon  oath,  before  any  justice  of  the  peace,  or  mayor  of  any 
city,  or  chief  magistrate  of  any  incorporated  town,  that  there  is  a 
reasonable  cause  to  suspect  that  any  person  has  in  his  possession,  or 
on  his  premises,  any  property  stolen,  or  any  false  or  counterfeit  coin 
resembling,  or  apparently  intended  to  resemble,  or  pass  for,  any  cur- 
rent coin  of  the  United  States,  or  of  any  other  state,  province  or 
country,  or  any  instrument,  tool  or  engine  whatsoever,  adapted  or 
intended  for  the  counterfeiting  of  any  such  coin ;  or  any  false 
and  counterfeit  notes,  bills  or  bonds  of  the  United  States,  or  of  the 
state  of  North  Carolina,  or  of  any  other  state  or  country,  or  of  any 
county,  city  or  incorporated  town ;  or  any  instrument,  tool  or  en- 
gine whatsoever,  adapted  or  intended  for  the  counterfeiting  of  such 
note,  bill  or  bond,  it  shall  be  lawful  for  such  justice,  mayor  or  chief 
magistrate  of  any  incorporated  town,  to  grant  a  warrant,  to  be  exe- 
cuted within  the  limits  of  his  county  or  of  the  county  in  wliich  such 
city  or  incorporated  town  is  situated,  to  any  proper  officer,  author- 
izing him  to  search  for  such  property,  and  to  seize  the  same,  and  to 
arrest  the  person  having  in  possession,  or  on  whose  premises  may 


3163       CEIMIlSrAL  PEOCED.— ///.  Search  Warrants.       Ch.  80 

be  found  such  stolen  property,  counterfeit  coin,  counterfeit  notes, 
bills  or  bonds,  or  the  instruments,  tools  or  engines  for  making  the 
same,  and  to  bring  them  before  any  magistrate  of  competent  juris- 
diction, to  be  dealt  with  according  to  law. 
Code,  s.  1171;  1868-9,  c.  178,  subc.  3,  s.  38. 

3164.   Form  of,  and  procedure  thereon.   Such  search  warrant 

shall  describe  the  article  to  be  searched  for  with  reasonable  certainty, 
and  by  whom  the  complaint  is  made,  and  in  whose  possession  the 
article  to  be  searched  for  is  supposed  to  be;  it  shall  be  made  return- 
able as  other  criminal  process  is  by  law  required  to  be,  and  the  pro- 
ceedings thereupon  shall  be  as  required  in  other  cases  of  criminal 
complaint. 

Code,  s.  1172;  1868-9,  c.  178,  subc.  3,  s.  39. 


Note.     For  search  warrant  for  seamen,  see  Crimes,  s.  3557. 
IV.     Peace  Wakkants. 

3165.  Who  may  issue.  The  following  magistrates  shall  have 
power  to  cause  to  be  kept  all  the  laws  made  for  the  preservation  of 
the  public  peace,  and  in  execution  of  that  power  to  require  persons 
to  give  security  to  keep  the  peace,  in  the  manner  provided  in  this 
chapter,  namely:  The  chief  justice  and  associate  justices  of  the  su- 
preme court,  the  judges  of  the  superior  courts,  and  of  any  special 
courts  which  may  hereafter  be  created,  the  justices  of  the  peace,  the 
mayors  or  other  chief  officers  of  all  cities  and  towns. 

Code,  s.  1216;   1868-9,  c.  178,  subc.  2,  s.  1. 

3166.  Complaint  to  obtain.  Whenever  complaint  shall  be  made 
in  writing,  and  upon  oath,  to  any  such  magistrate  that  any  person  has 
threatened  to  commit  any  offense  against  the  person  or  property  of 
another,  it  shall  be  the  duty  of  such  magistrate  to  examine  such  com- 
plainant and  any  witnesses  who  may  be  produced  on  oath,  to  reduce 
such  examination  to  writing,  and  to  cause  the  same  to  be  subscribed 
by  the  parties  so  examined. 

Code,  s.  1217;  1868-9,  e.  178,  subc.  2,  s.  2. 

3167.  When  to  issue.  If  it  shall  appear  from  such  examination 
that  there  is  just  reason  to  fear  the  commission  of  any  such  offense 
by  the  person  complained  of,  it  shall  be  the  duty  of  the  magistrate 
to  issue  a  warrant  under  his  hand,  with  or  without  a  seal,  reciting 
the  complaint,  and  commanding  the  officer  to  whom  it  is  directed 
forthwith  to  apprehend  the  person  so  complained  of,  and  bring  him 


3167        CKIMIXAL  PEGGED.— ZT'.  Peace   liana)?!!*.        Ch.  8U 

before  such  magistrate  or  some  other  magistrate  authorized  to  issue 
such  warrant. 

Code.  s.  1-218:   1S08  0,  c.  178,  subc.  2,  s.  3. 

3168.  Breach  of  peace  in  presence  of  court.  Every  person  who, 

in  the  presence  of  any  magistrate  specified  in  section  three  thousand 
one  hundred  and  sixty-five,  or  in  tlie  presence  of  any  court  of  record, 
shall  make  any  affray,  or  threaten  to  kill  or  beat  another,  or  to  coni- 
niit  any  offense  against  his  person  or  property ;  and  all  persons  who,  in 
the  presence  of  such  magistrate  or  court,  shall  contend  with  hot  and 
angry  words,  may  be  ordered  by  such  magistrate  or  court,  w'ithout 
any  other  proof,  to  give  such  security  as  above  specified,  and  in  case 
of  failure  so  to  do,  may  be  committed  as  above  provided. 
Code,  s.  1224;  1868-9,  c.  178,  subc.  2,  s.  9. 

3169.  To  whom  directed.  The  warrant  shall  be  directed  to  the 
sheriff,  coroner  or  any  constable,  each  of  whom  shall  have  power  to 
execute  the  same  within  his  county;  and  if  no  sheriff,  coroner  or  con- 
stable can  conveniently  be  found,  the  warrant  may  be  directed  to 
any  j^erson  whatever,  who  shall  have  power  to  execute  the  same 
within  the  county  in  wdiich  it  is  issued.  Xo  justice  of  the  ])eace,  or 
mayor,  or  other  cliief  otficcr  of  any  city  or  town  shall  direct  his 
warrant  to  any  officer  outside  the  county  of  said  justice  or  chief 
officer. 

Code,  s.  1219;  1868-9,  e.  178,  subc.  2,  s.  4. 

3170.  Proceeding  on.  "Whenever  any  person  complained  of  on  a 
peace  warrant  shall  be  brought  before  a  justice  of  the  peace,  such 
person  may  be  required  to  cuter  into  a  recogiiizance,  payable  to  the 
state  of  North  Carolina,  in  such  sum,  not  exceeding  one  thousand  dol- 
lars, as  such  justice  shall  direct,  with  one  or  more  sufficient  sure- 
ties, to  appear  before  some  justice  of  the  peace  within  a  period 
not  exceeding  six  months,  and  not  depart  tlie  court  witliout  leave, 
and  in  the  meanwhile  to  keep  the  peace  and  be  of  good  behavior 
towards  all  the  people  of  the  state,  and  particularly  towards  the 
person  requiring  such  security. 

Code,  ss.  894,  1220;  1879,  c.  92,  s.  9. 

3171.  When  accused  discharged.  If  the  complainant  docs  not 
appear,  the  party  recognized  shall  bo  discharged,  unless  good  cause 
be  .shown  to  the  contrary.  If  the  rcs|)cctive  jiarties  ajipcar,  the  court 
sliall  hear  their  allegations  and  proofs,  and  may  eitln'r  discharge  the 
recognizance  taken,  or  they  may  require  a  new  recognizance,  as  the 
circumstances  of  tlie  case  may  require,  fur  such  time  as  may  appear 
necessary,  not  exceeding  one  year. 

Code,  s.  1226;   1868-9.  c.  178,  subc.  2,  s.  12. 


3172       CEIMINAL  PROCED.— 77.  Peace   ^Yarrants.       Ch.   SO 

3172.  When  defendant  imprisoned.   If  such  recognizauce  shall 

be  given,  the  party  complained  of  shall  be  discharged;  if  such  person 
shall  fail  to  tiud  such  security,  it  shall  be  the  duty  of  the  magistrate 
to  commit  him  to  prison  until  he  shall  find  the  same,  specifying 
in  the  mittimus  the  cause  of  commitment  and  the  sum  in  which  such 
security  was  required. 

Code.  s.  1221  ;  1808-9,  c.  178,  sube.  2,  s.  G. 

3173.  Defendant  may  appeal,  in  all  proceedings  on  peace  war- 
rants the  defendant  may  ap[)eal  from  the  decision  of  the  justice  of 
the  peace  to  the  superior  court  by  giving  the  bond  required  by  the 
justice  of  the  peace  to  keep  the  peace,  in  addition  to  the  appeal  bond, 
when  the  case  shall  be  heard  by  the  judge  holding  the  court  in  the 
county. 

1901,  c.  6G. 

3174.  How  discharged  after  imprisonment.  Any  person  com- 
mitted for  not  finding  sureties  of  the  peace  as  above  provided,  may  be 
discharged  by  any  magistrate  upon  giving  such  security  as  was  origi- 
nally required  of  such  person,  or  by  a  justice  of  the  supreme  court, 
or  judge  of  the  superior  or  criminal  court,  by  giving  such  other  secu- 
rity as  may  seem  suflicient. 

Code,  s.  1222;  1868-9,  e.  178,  subc.  2,  s.  7. 

3175.  When  and  where  recognizance  returned.  Every  recogni- 
zance taken  pursuant  to  the  furcgding  pro^■isions  shall  be  transmitted 
by  the  magistrate  taking  the  same  to  the  next  term  of  the  superior 
court  for  the  county  in  which  the  offense  is  charged  to  have  been  com- 
mitted. 

Code,  s.  1223;  1868-9,  e.  178,  sube.  2,  s.  8. 

v.     Aeeest. 

3176.  Who  may,  for  breach  of  peace,  without  warrant.  Every 

person  present  at  any  riot,  rout,  affray  or  other  breach  of  the  peace, 
shall  endeavor  to  suppress  and  prevent  the  same,  and,  if  necessary 
for  that  purpose,  shall  arrest  the  offenders. 
Code,  s.  1124;  1868-9,  c.  178,  sube.  1,  s.  1. 

3177.  Who  may,  for  felony,  without  warrant.  Every  person  in 

whose  presence  a  felony  has  been  committed  may  arrest  the  person 
whom  he  knows  ov  has  reasonable  ground  to  believe  to  be  guilty  of 
such  offense,  and  it  shall  be  the  duty  of  every  sheriff",  coroner,  consta- 
ble or  oflicer  of  police,  upon  information,  to  assist  in  such  arrest. 

Code,  s.  1129;   1868-9,  e.  178,  subc.  1,  s.  6. 


3178  CEIMIXAL  PROCED.— T.  Amst.  Ch.  80 

3178.  Officer  may,  without  warrant,  when.  Every  sheriff,  coro- 
ner, constable,  officer  of  police,  or  other  officer,  entrusted  with  the 
care  and  preservation  of  the  public  peace,  who  shall  know  or  have 
reasonable  gronnd  to  belie\-e  that  any  felony  has  been  committed,  or 
that  any  dangerous  wound  has  been  given,  and  shall  have  reasonable 
gi'oimd  to  believe  that  any  particular  person  is  guilty,  and  shall 
apjDrehend  that  such  person  may  escape  if  not  immediately  arrested, 
shall  arrest  him  without  warrant,  and  may  summon  all  bystanders 
to  aid  in  snch  arrest. 

Code,  s.  1126;  1868-9,  c.  178,  subc.  1,  s.  3. 

3179.  Who  may  break  house  to  prevent  a  felony.  All  persons 

are  authorized  to  break  open  and  enter  a  house  to  prevent  a  felony 
about  to  be  committed  therein. 

Code,  s.  1127;  1868-9,  e.  178,  subc.  1,  s.  4. 

3180.  Officer  may  brealc  and  enter  houses.  If  a  felony  or  other 

infamous  crime  has  been  committed,  or  a  dangerous  wound  has  been 
given,  and  there  is  reasonable  ground  to  believe  that  the  guilty  per- 
son is  concealed  in  a  house,  it  shall  be  lawful  for  any  sheriff,  coroner, 
constable,  or  police  officer,  admittance  having  been  demanded  and 
denied,  to  break  open  the  door  and  enter  the  house  and  arrest  the 
person  against  whom  there  shall  he  such  ground  of  belief. 
Code,  s.  1128;  1868-9,  c.  178,  subc.  1,  s.  5. 

3181.  Who  compelled  to  assist.  Every  person  summoned  by 
a  judge,  justice,  mayor,  intendcyit,  chief  officer  of  any  incorporated 
toAvn,  sheriff,  coroner  or  constable,  to  aid  in  suppressing  any  riot, 
rout,  imlawful  assembly,  affray  or  other  breach  of  the  peace,  or  to 
arrest  the  persons  engaged  in  the  commission  of  such  offenses,  or  to 
prevent  the  commission  of  any  felony  or  larceny  which  may  be 
threatened  or  begun,  shall  do  so. 

Code,  s.  1125;  1868-9,  c.  178,  subc.  1,  s.  2. 

3182.  Procedure  on.  Every  person  arrested  without  warrant 
shall  be  either  immediately  taken  before  some  magistrate  having 
jurisdiction  to  issue  a  warrant  in  the  case,  or  else  committed  to  the 
county  prison,  and,  as  soon  as  may  be,  taken  before  such  magistrate, 
who,  on  proper  proof,  shall  issue  a  warrant  and  thereon  proceed  to 
act  as  may  be  required  by  law. 

Code,  s.  1130;  1868-9,  c.  178,  subc.  1,  s.  7. 


NoTK.     For  piinisbiiicnt  for  failure  to  aid  officer  in  making  arrest,  see  Crimes, 
s.  3701. 


952 


3183  CRIMINAL  PEOCED.— F/.  Fugitives.  Ch.  80 

VI.     Fugitives. 

3183.  Felons  fleeing  from  justice,  outlawed.  In  all  cases  where 

any  two  justices  of  the  peace,  or  any  judge  of  the  supreme,  superior 
or  criminal  courts,  shall,  on  written  affidavit,  filed  and  retained 
by  such  justice  or  judge,  receive  information  that  a  felony  has  been 
committed  by  any  person,  and  that  such  person  flees  from  justice, 
conceals  himself  and  evades  arrest,  and  service  of  the  usual  process 
of  the  law,  the  said  judge,  or  the  said  two  justices,  being  justices  of 
the  county  wherein  such  person  is  supposed  to  lurk  or  conceal  him- 
self, are  hereby  empowered  and  required  to  issue  proclamation 
against  him  reciting  his  name,  if  known,  and  thereby  requiring  him 
forthwith  to  surrender  himself;  and  also,  when  issued  by  any  judge, 
empowering  and  requiring  the  sheriff  of  any  county  in  the  state  in 
which  said  fugitive  shall  be,  and  when  issued  by  two  justices,  em- 
powering and  requiring  the  sheriff  of  the  county  of  said  justices, 
to  take  such  power  with  him  as  he  shall  think  fit  and  necessary 
for  the  going  in  search  and  pursuit  of,  and  effectually  apprehend- 
ing, such  fugitive  from  justice,  which  proclamation  shall  be  pub- 
lished at  the  door  of  the  courthouse  of  any  county  in  which  such 
fugitive  is  supposed  to  lurk  or  conceal  himself,  and  at  such  other 
places  as  the  judge  or  justices  shall  direct;  and  if  any  person  against 
whom  proclamation  hath  been  thus  issued,  continue  to  stay  out, 
lurk  and  conceal  himself,  and  do  not  immediately  surrender  himself, 
any  citizen  of  the  state  may  capture,  arrest  and  bring  him  to  justice, 
and  in  case  of  flight  or  resistance  by  him,  after  being  called  on  and 
warned  to  surrender,  may  slay  him  without  accusation  or  impeach- 
ment of  any  crime. 

Code,  s.  1131;  1868-9,  c.  178,  subc.  1,  s.  8;  186G,  c.  62. 

3184.  From  another  state,  how  arrested  and  held.  Any  justice 

of  the  supreme  court,  or  any  judge  of  the  superior  court  or  of  any 
criminal  court,  or  any  justice  of  the  peace,  or  mayor  of  any  city, 
or  chief  magistrate  of  any  incorporated  town,  on  satisfactory  infor- 
mation laid  before  him  that  any  fugitive  or  other  person  in  the 
state  has  committed,  out  of  the  state  and  within  the  United  States, 
any  offense  which,  by  law  of  the  state  in  which  the  offense  was  com- 
mitted, is  punishable  either  capitally  or  by  imprisonment  for  one 
year  or  upwards  in  any  state  prison,  shall  have  full  power  and 
authority,  and  is  hereby  required  to  issue  a  warrant  for  said  fugitive 
or  other  person  and  commit  him  to  any  jail  within  the  state  for  the 
space  of  six  months,  imless  sooner  demanded  by  the  public  authori- 
ties of  the  state  wherein  the  offense  may  have  been  committed,  pur- 
suant to  the  act  of  Congress  in  that  case  made  and  provided.     If  no 


31S4  CROIIXAL  PROCED.— T7.  Fugitives.  Cli.  SO 

demand  be  made  within  that  time  the  said  fugitive  or  other  pei;son 
shall  be  liberated,  nnless  sufficient  cause  be  sliown  to  the  contrary. 

Code,  s.  llfi",;   ISOo,  c.  10.3;   1868-9,  c.  ITS,  siibo.  .1,  s.  34. 

3185.  Magistrate  to  keep  record;  transmit  copy  to  governor. 

Every  magistrate  committing  any  person  under  the  preceding  sec- 
tion, shall  keep  a  record  of  the  whole  ]iroceedings  before  him,  and 
immediately  transmit  a  copy  thereof  to  the  governor  for  such  action 
as  he  may  deem  fit  therein  under  the  law. 
Code,  s.  116G;  1868-9,  c.  178,  subc.  3,  s.  3.5. 

3186.  Duty  of  governor.  The  governor  shall  immediately  inform 
the  governor  of  the  state  or  territory  in  which  the  crime  is  alleged 
to  have  been  committed,  or  the  president  of  the  United  States,  if 
it  be  alleged  to  have  been  committed  within  the  District  of  Colum- 
bia, of  the  proceedings  had  in  such  case. 

Code,  s.  11G7;  1868-9,  c.  178,  subc.  3,  s.  36. 

3187.  Surrendered  on  order  of  governor.  Every  sheriff  or  jailer, 

in  whose  custody  any  person  so  committed  shall  be,  u]")on  the  order 
of  the  governor,  shall  surrender  him  to  the  person  named  in  such 
order. 

Code,  s.  11G8;  1868-9,  c.  178,  subc.  3,  s.  37. 

3188.  Governor  may  employ  agents,  and  offer  rewards  for  ar- 
rest of.  The  governor,  on  information  made  to  him  of  any  person, 
whether  the  name  of  such  person  be  known  or  unknown,  having  com- 
mitted a  felony  or  other  infamous  crime  within  the  state,  and  of 
having  fled  out  of  the  jurisdiction  thereof,  or  who  conceals  himself 
within  the  state  to  avoid  arrest,  or  who,  having  been  convicted,  has 
escaped  and  can  not  otherwise  be  apprehended,  may  either  employ 
a  special  agent,  with  a  sufficient  escort,  to  pursue  and  apprehend 
such  fugitive,  or  issue  his  proclamation,  and  therein  ort'er  a  reward, 
not  exceeding  four  hundred  dollars,  according  to  the  miture  of  the 
case,  as  in  his  opinion  may  be  sufficient  for  the  purpose,  to  be  paid 
to  him  who  shall  apprehend  and  deliver  the  fugitive  to  such  person 
and  at  such  place  as  in  the  proclamation  shall  be  directed ;  and  he 
may  from  time  to  time  issue  his  warrants  on  the  state  treasurer  for 
sufficient  sums  of  money  for  such  purpose. 

Code,  s.  1160:  1891,  e.  421;  R.  C,  c.  35,  s.  4;  1800,  c.  561  :  1866.  c.  28;  1868-9, 
c.  52;  1870-1,  c.  15;  1871-2,  c.  29. 

3189.  Expenses  of  bringing  from  another  state,  paid,    in  all 

cases  where  the  governor  of  the  state  has  math^  a  rei|uisition  on  the 
governor  of  another  state  for  any  fugitive  from  justice  and  has  sent 
an  agent  to  receive  said  fiiiiitive,  it  shall  be  hiwfnl  fur  tlic  goxcruor 


31S9  CRIMIjSTAL  PROCED.— T7.  Fugitives.  Cli.   80 

to  issue  a  warrant  on  the  state  treasurer  for  the  amount  of  money 
necessary  to  pay  the  expenses  of  said  agent  and  other  costs  in  the 
arresting  of  said  fugitive  from  justice,  to  be  paid  by  the  treasurer 
of  the  state. 

Code,  s.  1170;  1870-1,  e.  82. 

VII.     Preliminary  Hearing. 

3190.  Waiver  of  examination.  If  any  person  arrested  shall 
desire  to  waive  cxamiuatinn  an<l  give  bail,  it  shall  be  the  duty  of 
the  officer  making  the  arrest  to  take  him  before  any  magistrate  of 
the  county  in  which  the  offense  is  charged  to  have  been  committed, 
or  before  any  judge  of  the  supreme  or  superior  court. 

Code,  ss.  1138,  11.39:  1868-9,  c.  178,  sube.  .3,  ss.  7,  8. 
Note.     For  bail,  see  s.  3207. 

3191.  Procedure,  when  justice  tias  not  final  jurisdiction.  In  all 

cases  where  a  justice  of  the  peace  shall  not  have  final  jurisdiction 
of  the  oifense,  he  shall  desist  from  any  final  determination  of  the 
action  or  complaint,  and  proceed  as  hereinafter  provided. 
Code,  s.  896;  1868-9,  e.  178,  subc.  4,  s,  7;  1879,  c.  302,  s.  2. 

3192.  Duty  of  examining  magistrate.    The  magistrate,  before 

whom  any  such  person  shall  be  brought,  shall  proceed,  as  soon  as 
maj'  be,  to  examine  the  complainant  and  the  witnesses  produced  in 
support  of  the  prosecution  on  oath,  in  the  presence  of  the  prisoner, 
in  regard  to  the  offense  charged,  and  in  regard  to  any  other  matters 
connected  with  such  charge,  which  such  magistrate  may  deem  perti- 
nent. The  defendant  shall  be  allowed  a  reasonable  time  before  the 
hearing  begins  in  which  to  send  for  and  advise  with  counsel. 

Code,  ss.  1144,  1145:  1868-9.  c.  178,  subc.  3,  s.  13. 

3193.  Testimony  reduced  to  writing;  right  to  counsel.    The 

evidence  given  by  the  several  witnesses  examined  shall  be  reduced 
to  writing  by  the  magistrate,  or  under  his  direction,  and  shall  be 
signed  by  the  witnesses  respectively.  If  desired  by  the  ])crsou 
arrested,  his  counsel  shall  be  present  during  the  examination  of 
the  complainant  and  the  witnesses  on  the  part  of  the  prosecution, 
and  during  the  examination  of  the  prisoner;  and  the  prisoner  or  his 
counsel  shall  be  allowed  to  cross-examine  the  complainant  and  the 
witnesses  for  the  prosecution. 

Code,  ss.  1146,  11.50;   1868-9,  c.  178,  subc.  3,  ss.  14.  19. 

3194.  Prisoner  examined;  advised  of  rights.    The  uuigistrate 

shall  then  proceed  to  examine  the  jirisouer  in  vchitidu  to  the  offense 
charged.     Such  examination  shall  not  be  on  (latli;  and  before  it  is 


3194        CEIMIXAL  PROCED.— TVZ.  Pre.  Hearing.        Ch.  80 

commenced,  the  j^risouer  shall  be  infoi'med  by  the  magistrate  of  the 
charge  made  against  him,  and  that  he  is  at  liberty  to  refuse  to  answer 
any  question  that  may  be  put  to  him,  and  that  his  refusal  to  answer 
shall  not  be  used  to  his  prejudice  in  any  stage  of  the  proceedings. 

Code,  ss.   1145,  1146;   1868-9,  c.   178,  siibc.  3,  ss.   14,  15. 

3195.  Witnesses  not  to  be  present  at  examination  of  prisoner. 

The  witnesses  produced  on  the  part  either  of  the  prisoner  or  of 
the  prosecution  shall  not  be  j^resent  at  the  examination  of  the  pris- 
oner; and  while  any  witness  is  under  examination  the  magistrate 
may  exclude  from  the  place  in  which  such  examination  is  had  all 
Avitnesses  who  have  not  been  examined,  and  may  cause  the  witnesses 
to  be  kept  separate  and  prevented  from  conversing  with  each  other 
until  they  shall  have  been  examined. 
Code,  s.  1149;  1868-9,  c.  178,  subc.  3,  s.  18. 

3196.  Answers  reduced  to  writing,  read  to  prisoner,  signed  by 

magistrate.  The  answer  of  the  prisoner  to  the  several  interrogato- 
ries shall  be  reduced  to  writing  by  the  magistrate,  or  imder  his  direc- 
tion. They  shall  be  read  to  the  prisoner,  who  may  correct  or  add  to 
them ;  and  when  made  conformable  to  what  he  declares  is  the  truth, 
shall  be  certified  and  signed  by  the  magistrate. 
Code,  s.  1147;  1868-9,  e.  178,  subc.  3,  s.  16. 

3197.  Witnesses  for  defendant  examined.  After  the  examina- 
tion of  the  prisoner  is  complete,  his  witnesses,  if  he  have  any,  shall 
be  sworn  and  examined,  and  he  may  have  the  assistance  of  counsel 
in  such  examination. 

Code,  s.  1148;  1868-9,  c.  178,  subc.  3,  s.  17. 

3198.  Examination  not  necessary  in  misdemeanors.  Nothing 

contained  in  the  preceding  sections  shall  be  construed  to  require  any 
magistrate,  before  whom  a  prisoner  charged  with  a  misdemeanor 
shall  be  brought,  to  take  the  examination  of  such  prisoner,  except 
where  such  magistrate  shall  deem  it  material  so  to  do,  or  where  such 
examination  shall  be  required  by  the  prisoner. 
Code,  s.  1153;  1868-9,  c.  178,  subc.  3,  s.  22. 

3199.  When  prisoner  discharged.  If,  upon  examination  of  the 

whole  matter,  it  shall  ajipear  to  the  magistrate  either  that  no  offense 
has  been  committed  by  any  person  or  that  there  is  no  i)robable  cause 
for  charging  the  prisoner  therewith,  he  shall  discharge  such  prisoner. 
Code,  s.  1151;  1868-9,  c.  178,  subc.  3,  s.  20. 

3200.  In  lynching.  Whenever  the  solicitor  of  any  judicial  dis- 
trict shall  ascertain  tliat  the  crime  of  Ivnchintf  has  been  committed  in 


3200        CRIMINAL  PROCED.— 77/.  Pre.  Hearing.         Ch.  80 

any  county  in  his  judicial  district,  it  shall  be  his  duty  to  go  to  such 
county  at  the  earliest  possible  moment,  and  at  once  institute  proceed- 
ings for  the  investigation  of  the  crime  before  the  coroner  of  the 
county,  some  judge  of  the  superior  court,  or  justice  of  the  peace, 
and  for  the  apprehension  of  the  offender.  In  the  performance  of 
this  duty  he  shall  cause  to  be  issued  subpoenas  or  other  process  to 
compel  the  attendance  of  witnesses  and  examine  such  witnesses  on 
oath  as  to  their  knowledge  or  information  touching  the  crime  being 
investigated.  In  all  cases  where,  Tipon  preliminary  investigation,  it 
appears  probable  that  any  person  is  guilty  of  the  crime  charged,  it 
shall  be  the  duty  of  the  coroner,  judge  or  justice  before  whom  the 
case  is  heard  to  bind  such  person,  with  good  security,  for  his  appear- 
ance at  the  next  ensuing  term  of  the  superior  or  criminal  court 
of  some  county  adjoining  the  county  in  which  the  crime  was  com- 
mitted for  trial,  and  in  default  of  bail  to  commit  him  to  the  jail 
of  such  adjoining  county  for  safe-keeping,  and  all  necessary  wit- 
nesses shall  be  recognized  to  appear  at  such  term  as  witnesses  for 
the  state. 

1893,  c.  461,  s.  2. 

3201.  Participants  in  lynching  must  testify.  In  all  investiga- 
tions before  a  justice  of  the  peace,  coroner,  judge,  grand  jury,  or 
courts  and  jury,  on  the  trial  of  the  cause,  as  aiathorized  by  the  preced- 
ing section  or  imder  existing  law,  no  person  shall  be  excused  from 
testifying  touching  his  knowledge  or  information  in  regard  to  the 
offense  being  investigated,  upon  the  ground  that  his  answer  might 
tend  to  subject  him  to  prosecution,  pains  or  penalties,  or  that  his 
evidence  might  tend  to  criminate  himself,  biit  no  discovery  made  by 
such  witness  upon  any  such  examination  shall  be  used  against  him 
in  any  court  or  in  any  penal  or  criminal  prosecution,  and  he  shall, 
when  so  examined  as  a  witness  for  the  state,  be  altogether  pardoned 
of  any  and  all  participation  in  any  crime  arising  under  the  provisions 
of  the  preceding  section,  or  under  existing  law,  concerning  which  he 
is  required  to  testify. 

1893,  c.  461,  s.  5. 

3202.  Prisoner  bound  over,  Wfien.    If  it  shall  appear  that  an 

offense  has  been  committed,  and  that  there  is  probable  cause  to 
believe  the  prisoner  to  be  guilty  thereof,  if  the  offense  be  bailable, 
and  the  prisoner  offer  sufficient  bail,  such  bail  shall  be  taken  and 
the  prisoner  discharged  ;  if  no  bail  be  offered,  or  the  oft'cnse  be  not 
bailable,  the  prisoner  shall  be  committed  to  prison. 
Code,  ss.  1152,  1156;  1868-9,  e.  178.  subc.  3,  ss.  21,  25. 


3203         CRIMINAL  PROCED.— T/Z.  Pre.  Hearing.         Ch.   SO 

3203.  Witnesses  against  prisoner  recognized.   The  magistrate 

sliall  liiud  l>v  reriiiiiiizaiices  the  ])rosi'cut(.ir  ami  all  the  material  wit- 
nesses against  snch  jirisoner  to  appear  and  testify  at  the  next  term 
of  the  court  having  jurisdiction  for  the  countv  in  which  the  offense 
is  alleged  to  have  been  committed. 
Code,  s.  1152;  1868-9,  c.  178,  subc.  3,  s.  21. 

3204.  Witnesses  required  to  give  security  for  appearance. 

Whenever  siieh  magistrate  shall  be  satistied  l)y  the  ])rcinf  that  there  is 
good  reason  to  believe  that  any  snch  witness  will  not  fulfill  the 
conditions  of  such  recognizance  unless  security  be  required,  he  may 
order  such  witness  to  enter  into  a  recognizance  with  such  sureties 
as  he  shall  deem  meet  for  his  appearance  at  such  court. 

Code,  s.  1154;   18G8-9,  c.  178,  subc.  3,  s.  23. 

3205.  Examinations  and  recognizances  certified  to  court.  All 

examinations  and  recognizances  taken  pursuant  to  the  provisions  of 
this  chapter  shall  be  certified  by  the  magistrate  taking  the  same 
to  the  court  at  which  the  witnesses  are  bound  to  a])i!ear,  on  the  first 
day  of  the  sitting  thereof;  and  the  examinations  taken  and  subscribed 
as  herein  prescribed  may  be  used  as  evidence  before  the  grand  jury, 
and  on  the  trial  of  the  accused,  provided  he  was  present  at  the 
taking  thereof  and  had  an  opportunity  to  hear  the  same  and  to 
cross-examine  the  deposing  witness,  if  such  witness  be  dead  or  so 
ill  as  not  to  be  able  to  travel,  or  by  procurement  or  connivance  of 
the  defendant  hath  removed  from  the  state,  or  is  of  unsound  mind. 
Code,  s.  1157;  1868-9,  c.  178,  subc.  3,  s.  26. 

3206.  Penalty  for  failing  to  return.  If  any  magistrate  shall  re- 
fuse or  neglect  to  return  to  the  proper  court  any  such  examination 
or  recognizance  by  him  taken,  he  may  be  compelled  by  rule  of  court 
forthwith  to  return  the  same,  and  in  case  of  disobedience  of  such 
rule,  may  be  proceeded  against  by  attachment  as  for  contempt  of 
court  as  provided  by  law. 

Code,  s.  1158;  1868-9,  c.  178,  subc.  3,  s.  27. 


Note.  For  lisbt  of  prisoner  to  testify  in  his  own  behalf,  see  Evidence,  ss. 
1634,  1635. 

VIII.     Bail. 

3207.  When  bail  allowed.  If  the  offense  charged  in  the  warrant 
be  not  punishable  with  death,  such  magistrate  may  take  from  the 
person  so  arrested  a  recognizance  with  sufficient  stircties  for  his 
appearance  at  the  next  term  of  the  court  having  jttrisdiction,  to  be 
held  in  the  county  where  the  offense  shall  be  alleged  to  have  been 
committed. 

Code,  s.  1139;  1868-9,  e.  178,  subc.  3,  s.  8;  1871-2.  e.  37,  s.  1. 
0.38 


3208  CRIMINAL  PROCED.— T/Z7.  Bail.  Ch.  80 

3208.  Sheriff  or  deputy  may  take;  not  to  become.   When  any 

slieritf  or  his  deputy  shall  arrest  the  body  of  any  person,  in  con- 
sequence of  the  writ  of  capias  issued  to  him  by  the  clerk  of  a  court 
of  record  on  an  indictment  found,  the  said  sheriff  or  dej^uty,  if 
the  crime  is  bailable,  shall  recognize  the  offender,  and  take  sufiicient 
bail  in  the  nature  of  a  recognizance  for  his  appearing  at  the  next 
succeeding  court  of  the  county  where  he  ought  to  answer,  which 
recognizance  shall  be  returned  with  the  capias;  and  the  sheriff  shall 
in  no  case  become  bail  himself. 

Code,  s.  1180;  E.  C,  e.  35,  s.  11;  1797,  c.  474,  s.  4. 

3209.  Who  may  take,  before  imprisonment.    Officers  before 

whom  persons  charged  with  crime,  but  who  have  not  been  committed 
to  prison  by  an  authorized  magistrate,  shall  be  brought,  shall  have 
jiower  to  take  bail  as  follows : 

1.  Any  justice  of  the  supreme  court,  or  a  judge  of  a  superior 
court,  in  all  cases. 

2.  Any  justice  of  the  peace  or  chief  magistrate  of  any  incorpo- 
rated city  or  to\^^l,  in  all  cases  of  misdemeanor,  and  in  all  cases  of 
felony  not  capital. 

Code,  s.  1160;  1868-9,  c.  178,  subc.  3,  s.  29;   1871-2,  c.  37. 

3210.  Who  may  take,  after  imprisonment.   Any  justice  of  the 

supreme  court  or  any  judge  of  a  superior  court  shall  have  power  to 
bail  persons  committed  to  prison  charged  with  crime  in  all  cases; 
any  jiistice  of  the  peace  or  chief  magistrate  of  any  incorporated  city 
or  town  shall  have  the  same  power,  in  all  cases  where  the  punish- 
ment is  not  capital. 

Code,  s.  1161;  1868-9,  c.  178,  subc.  3,  s.  30. 

3211.  Recognizance  to  be  filed  with  clerk.  Whenever  any  pris- 

cnuT  shall  be  bailed  by  any  officer  under  the  preceding  section,  such 
officer  shall  immediately  cause  the  recognizance  taken  by  him  to  be 
filed  with  the  clerk  of  the  superior  court  of  the  county  to  which  the 
]5risoner  is  recognized. 

Code,  s.  1162;  1868-9,  e.  178,  subc.  3,  s.  31. 

3212.  Duty  of  magistrate  granting  bail.  Any  magistrate  taking 

bail  shall  certify  on  the  warrant  the  fact  of  his  having  let  the 
defendant  to  bail,  and  shall  deliver  the  same,  together  with  the 
recognizance  taken  by  him,  to  the  officer  or  other  person  having 
charge  of  the  prisoner,  who  shall  deliver  the  same  without  unnec- 
essary delay  to  the  clerk  of  the  court. in  which  such  prisoner  shall 
have  been  recognized  to  appear. 

Code,  s.  1140;  1868-9,  c.  178,  subc.  3,  s.  9. 


3213  CRIMINAL  PROCED.— T7/7.  Bail  Ch.  SO 

3213.  Bail  OH  continuance  before  justice.  Upon  the  continuance 

of  any  criminal  actinn  returneil  before  any  justice  of  the  peace  for 
trial  in  which  the  said  justice  would  be  authorized  to  take  bail  on 
a  finding  of  probable  cause,  or  in  which  action  he  would  have  final 
jurisdiction,  it  shall  be  the  duty  of  said  justice  of  the  peace,  and 
he  is  hereby  authorized  and  directed,  to  take  such  bond  payable  to 
the  state  of  Xortli  Carolina,  on  the  same  being  tendered  by  the 
accused,  with  such  security  as  in  his  opinion  will  be  sufficient  to 
inspire  the  appearance  of  the  accused  before  him  for  trial  at  the  time 
and  place  (which  shall  be  mentioned  in  said  bond)  set  for  the  trial. 
1889,  c.  133,  s.  1. 

Note.     For  mortgage  in  lieu  of  personal  security,  see  ss.  266,  267. 
IX.     FoKFEiTED  Bail. 

3214.  Proceedings  on  recognizances  to  Iceep  the  peace.  Every 

person  who  shall  have  entered  into  a  recognizance  to  keep  the  peace 
shall  appear  according  to  the  obligation  thereof;  and  if  he  fail  to 
appear,  the  court  shall  forfeit  his  recognizance  and  order  it  to  be 
prosecuted,  in  the  manner  provided  by  law,  unless  reasonable  excuse 
for  his  default  be  given. 

Code,  s.  1225;  1868-9,  c.  178,  subc.  2,  s.  10. 

3215.  Recognizance,  when  deemed  broken.   No  recognizance 

taken  under  this  chapter  shall  be  deemed  to  bo  broken  except  in  the 
failure  of  the  principal  in  such  recognizance  to  appear  and  answer 
according  to  the  obligation  thereof,  unless  such  principal  be  con- 
victed of  some  offense  amounting  in  judgment  of  law  to  a  broach  of 
such  recognizance. 

Code,  s.  1227;  1868-9,  c.  178,  subc.  2,  s.  12. 

3216.  When  recognizance  prosecuted.  Whenever  evidence  of 
such  conviction  shall  be  produced  in  the  court  in  which  the  recogni- 
zance is  filed,  it  shall  be  the  duty  of  such  court  to  order  the  recogni- 
zance to  be  prosecuted,  and  the  solicitor  shall  cause  the  proper  pro- 
ceedings to  be  thereupon  taken. 

Code,  s.  1228;  1868-9,  c.  178,  subc.  2,  s.  13. 

3217.  Execution  on  judgment  nisi  not  to  issue  before  notice. 

No  execution  shall  issue  u|)on  a  forfeited  recognizance,  or  to  collect 
a  fine  impo.sed  nisi,  until  a  notice  has  issued  against  the  person  who 
has  forfeited  his  recognizance  or  upon  whom  the  fine  has  been  im- 
posed, and  his  sureties. 

Code,  s.  1208;  R.  C,  c.  35,  s.  43;  1777,  c.  115,  s.  48. 


3218         CTJIMIXAL  PROCED.— 7A'.  Forfeited  Bail         Ch.   SO 

3218.  What  notice  to  contain.  When  any  recognizance,  acknowl- 
edged bv  a  principal  and  sureties,  shall  be  forfeited  by  two  or  more 
of  the  recognizers,  the  notice  issued  thereon  shall  be  jointly  against 
them  all,  designating  which  of  them  are  principals  and  which  sure- 
ties, and  when  they  are  bound  in  different  sums,  stating  the  amount 
forfeited  by  each  one,  and  the  clerk  shall  have  no  greater  fee  on 
such  notice  than  is  due  when  it  is  issued  against  one  defendant. 

Code,  s.  1209;  R.  C,  c.  35,  s.  44;  1812,  c.  836,  s.  1. 

3219.  How  notices  executed.  All  notices  issuing  upon  forfeited 
recognizances  shall  be  executed  by  leaving  a  copy  with  each  of  the 
defendants,  or  at  his  present  place  of  abode.  And  in  case  he  can 
not  be  found,  and  has  no  known  place  of  abode,  and  the  matter  be 
returned,  then  a  notice  shall  issue,  and  on  the  like  return  the  same 
shall  be  deemed  duly  served. 

Code,  s.  1210;  K.  C,  e.  35,  s.  45;  1812,  c.  836,  s.  2. 

3220.  Judges  may  remit  forfeited  recognizances.   The  judges 

of  the  superior  courts  may  hear  and  determine  the  petition  of  all 
persons,  who  shall  conceive  they  merit  relief  on  their  recognizances 
forfeited ;  and  may  lessen,  or  absolutely  remit,  the  same,  and  do 
all  and  anything  therein  as  they  shall  deem  just  and  right  and  con- 
sistent with  the  welfare  of  the  state  and  the  persons  praying  siich 
relief,  as  well  before  as  after  final  judgment  entered  and  execution 
awarded. 

Code,  s.  120.);  R.  C,  c.  35,  s.  38;  1788.  e.  292.  s.  1. 

3221.  Clerk  to  refund,  when.  The  clerk  of  the  superior  court,  on 
the  reuiission  of  auy  forfeited  recognizance  which  has  been  paid  into 
his  office,  shall  refund  the  same,  or  so  much  thereof  as  shall  be  re- 
mitted. 

Code.  s.  1206;  R.  C,  c.  35,  s.  39;  1795,  c.  442.  s.  1. 

3222.  Treasurer  to  refund,  when.    If  the  money  has  been  paid 

to  the  county  treasurer,  he  shall  refund  it  to  the  person  entitled,  on 
his  producing  an  attested  copy  of  the  record  from  the  clerk  of  the 
court,  certifying  that  such  recognizance  hath  been  remitted  or  les- 
sened, signed  with  his  own  proper  name,  with  the  seal  of  the  court 
affixed  thereto. 

Code,  s.  1207;  R.  C,  c.  35,  s.  40;  1795,  c.  442,  s.  2. 

3223.  Upon  failure  to  appear  before  justice,  judgment  nisi;  no- 
tice to  sureties.  On  the  failure  of  the  accused  to  appear  at  the  time 
and  place  mentioned  in  any  bond  taken  by  any  justice  of  the  peace 
for  a  continuance  of  any  cause  pending  before  him,  and  answer  the 
charge,  or,   having  appeared,   shall   depart   the  coi:rt   without  leave 

Rev.  Vol.  1—57  961 


3223        CRIMINAL  PROCED.— 7X.  Forfeited  Bail.        Ch.  SO 

thereof  first  had  and  obtained,  it  shall  be  the  duty  of  the  said  justice 
of  the  peace  then  presiding  to  enter  judgment  nisi  against  the 
principal  and  his  sureties  in  said  bond  for  the  amount  mentioned 
therein :  Provided,  the  sum  does  not  exceed  the  sum  of  two  hundred 
dollars ;  and  immediately  issue  notice  to  the  principal  and  the  sure- 
ties in  said  bond,  giving  ten  days'  time,  specifying  time  and  jdace. 
to  appear  and  show  cause,  if  any  they  have,  why  the  said  judgment 
nisi  shall  not  be  made  final. 
1889,  c.  133,  s.  2. 

3224.  Judgment  final,  when  rendered.   If  the  defendant  shall 

fail  to  appear  and  show  satisfactory  reasons  for  not  complying  with 
the  provisions  of  said  bond,  it  shall  then  be  the  duty  of  the  justice 
of  the  peace  to  render  a  final  judgment  thereon  for  the  amount  of 
the  same,  and  immediately  make  and  transmit  to  the  clerk  of  the 
superior  court  a  transcript  thereof,  which  shall  be  entered  u])on  the 
judgment  docket  of  said  court,  and  the  clerk  shall  issue  execution 
on  said  final  judgment  against  the  principal  and  his  sureties  for 
the  collection  of  the  amount  thereof  as  in  other  judgments  in  behalf 
of  the  state. 
18S9,  c.  133,  s.  3. 

3225.  When  bond  exceeds  two  hundred  dollars,  procedure.  If 

the  bond  aforesaid  shall  exceed  the  sum  of  two  hundred  dollars,  and 
the  accused  shall  fail  to  appear  as  therein  provided  to  answer  the 
charge,  or,  having  aj^peared,  shall  depart  the  court  without  leave 
first  had  and  obtained,  it  shall  be  the  duty  of  the  said  justice  to 
have  the  accused  called,  and  enter  upon  the  bond  that  the  defendant 
was  called  and  failed  to  answer,  and  immediately  return  the  origi- 
nal papers  in  the  case,  together  Avitli  the  bond,  to  the  clerk  of  the 
court  having  jurisdiction  to  try  such  action,  wdio  shall  immediately 
enter  the  case  upon  the  criminal  docket  of  his  court  and  enter  judg- 
ment nisi  for  the  amount  of  the  said  bond,  and  issue  notice  to  the 
accused  and  his  sureties  to  appear  at  the  next  term  of  said  court  to 
show  cause  why  said  judg-ment  should  not  be  made  final  and  pro- 
ceeded in  as  other  cases  of  forfeited  bonds  in  behalf  of  the  state  in 
said  co\irt.  The  entry  on  said  bond  by  the  justice  of  the  peace  shall 
be  prima  facie  evidence  that  the  principal  therein  had  been  called 
and  failed  to  answer.  Nothing  in  this  section  shall  be  so  construed 
as  to  prevent  jiistices  of  the  peace  from  remitting  the  penalty  of 
the  bond  or  the  right  of  appeal  from  the  justice  of  the  peace  to  the 
superior  court  by  the  defendant  or  his  surety. 

188!),  V.  133,  s.  4. 

3226.  Bail  may  arrest  and  surrender  principal;  effect  on  lia- 
bility.  The  bail   shall   have   liberty,   at  any   time   before  execution 


3226         CRIMINAL  PEGGED.— 7Z.  Forfeited  Bail.         Gh.   80 

awarded  against  him,  to  surrender  to  the  court  from  which  the 
process  issued,  or  to  the  sheriff  having  such  process  to  return,  during 
the  session,  or  in  the  recess  of  such  court,  the  principal,  in  dis- 
charge of  himself;  and  such  bail  shall,  at  any  time  before  such  exe- 
cution awarded,  have  fiill  power  and  authority  to  arrest  the  body 
of  his  principal,  and  secure  him,  until  he  shall  have  an  opportunity 
to  surrender  him  to  the  sheriff  or  court  as  aforesaid ;  and  the  sheriff 
is  hereby  required  to  receive  such  surrender,  and  hold  the  body  of 
the  defendant  in  custody,  as  if  bail  had  never  been  given :  Provided, 
that  in  criminal  proceedings,  the  surrender  by  the  bail,  after  the 
recogTiizance  forfeited,  shall  not  have  the  effect  to  discharge  the 
bail,  but  the  forfeiture  may  be  remitted  in  the  manner  provided  for. 

Code,  s.  12.'30;  R.  C._,  c.  11,  s.  5;   1777,  c.  115,  s.  20;   1848,  e.  7. 

3227.  Person  surrendered  may  give  bail;  sheriff  Iial3le  for  re- 
lease. Any  person  surrendered  in  the  manner  specified  in  the  pre- 
ceding section,  shall  have  liberty,  at  any  time,  before  final  judgment 
against  him,  to  give  bail ;  and  in  case  of  such  surrender,  the  sheriff 
shall  take  the  bail  bond  or  recognizance  to  the  succeeding  court ;  and 
in  case  the  sheriff  shall  release  such  person  without  bail,  or  the  bail 
returned  be  held  insufiicient,  on  exception  taken  the  same  term  to 
which  such  bail  bond  shall  be  returned,  and  allowed  by  the  court, 
the  sheriff,  having  due  notice  thereof  in  criminal  cases,  shall  forfeit 
to  the  state  the  sum  of  one  hundred  dollars,  to  be  recovered  on  mo- 
tion in  like  manner  as  forfeitures  for  not  returning  process,  and 
be  subject  to  be  indicted  for  misdemeanor  in  ofiice ;  and  it  shall 
be  the  duty  of  the  prosecuting  ofiicer  to  collect  the  forfeiture ;  and, 
in  case  of  a  release,  the  sheriff'  shall  be  liable  for  an  escape,  and  may 
be  prosecuted  and  pimished  as  provided  for  in  the  chapter  entitled 
Crimes. 

Code,  s.  1231;  R.  C,  e.  11,  s.  6;  1827,  c.  40. 

3228.  Sheriff  may  take  bail  of  prisoner  in  custody.  If  any  per- 
son for  want  of  bail  shall  be  lawfully  committed  to  jail  at  any  time 
before  final  judgment,  the  sheriff,  or  other  officer  having  him  in 
custody,  may  take  sufficient  justified  bail  and  discharge  him ;  and 
the  bail  bond  shall  be  regarded,  in  every  respect,  as  other  bail  bonds, 
and  shall  be  returned  and  sued  on  in  like  manner;  and  the  oflicer 
taking  it  shall  make  special  return  thereof,  with  the  bond,  at  the 
first  court  which  is  held  after  it  is  taken. 

Code,  s.  1232;  R.  C,  c.  11,  s.  8. 

3229.  IVIay  plead  any  defense  principal  might.   Every  matter 

which  would  entitle  the  principal  to  be  discharged  from  arrest,  may 
be  pleaded  by  the  bail  in  exoneration  of  his  liability. 

Code,  s.  1233;  R.  C,  c.  11,  s.  9. 


3230  CRIMINAL  PROCED.— Z.   Commitnient.  Ch.  80 

X.     Commitment. 

3230.  Must  state  what.  Every  eoinmitment  to  prison  of  a  ]ier- 
son  charged  with  crime  shall  state : 

1.  The  name  of  the  person  charged. 

2.  The  character  of  the  oifense  with  which  he  is  charged. 

3.  The  name  and  oiSce  of  the  magistrate  committing  him. 

4.  The  manner  in  which  he  may  be  discharged ;  if  npon  giving 
recognizance  or  bail,  the  amount  of  said  recognizance,  the  condition 
on  the  performance  of  which  it  shall  be  discharged,  and  the  persons 
or  magistrate  before  Avhom  the  bail  may  justify. 

5.  The  court  before  which  the  prisoner  shall  be  sent  for  trial. 
Code,  s.  1163;  1868-9,  c.  178,  subc.  3,  s.  32. 

3231.  To  what  jail.  All  persons  committed  to  prison  before 
conviction  shall  be  committed  to  the  jail  of  the  county  in  which 
the  examination  is  had,  or  to  that  of  the  county  in  which  the 
oifense  is  charged  to  have  been  committed:  Provided,  if  the  jails  of 
these  counties  are  unsafe,  or  injurious  to  the  health  of  prisoners,  the 
committing  magistrate  may  conunit  to  the  jail  of  any  other  conven- 
ient county.  And  every  sheriff  or  jailer  to  whose  jail  any  person  shall 
be  committed  by  any  court  or  magistrate  of  competent  jurisdiction, 
shall  receive  such  prisoner  and  give  a  receipt  for  him,  and  be  bound 
for  his  safe-keeping  as  prescribed  by  law. 

Code,  s.  1164;  1868-9,  c.  178,  subc.  2,  s.  33. 

3232.  Of  witnesses.    If  any  witness  so  required  to  enter  into  a 
recognizance,   either  with  or  without  sureties,  shall  refuse  to  com- 
ply with  such  order,  it  shall  be  the  duty  of  such  magistrate  to  com-' 
mit  him   to  prison   until   he   shall   comply  with   such   order,   or  be 
otherwise  discharged  according  to  law. 

Code,  s.  1155;  1868-9,  c.  178,  subc.  3,  s.  24. 

XL     Venue. 

3233.  Lynching.   The  superior  court  of  any  county  which  adjoins 

the  county  in  which  the  crime  of  lynching  shall  be  committed  shall 
have  full  and  complete  jurisdiction  over  the  crime  and  the  offender 
to  the  same  extent  as  if  the  crime  had  been  committed  in  the  bounds 
of  such  adjoining  county;  and  whenever  the  solicitor  of  the  district 
has  information  of  the  commission  of  such  a  crime,  it  shall  be  his 
duty  to  furnish  such  information  to  the  grand  juries  of  all  adjoin- 
ing counties  to  the  one  in  which  the  crime  was  conunitted  from 
time  to  time  until  the  offenders  are  brought  to  justice. 
1893,  c.  461,  s.  4. 


3234  CKIMIlSrAL  PEGGED.— X7.   Venue.  Gh.  SO 

3234.  When  crime  committed  on  waters  dividing  counties. 

When  any  offense  shall  be  committed  on  any  water,  or  water-course, 
whether  at  high  or  low  water,  which  said  water  or  water-course,  or 
the  sides  or  shores  thereof,  shall  divide  counties,  such  offense  may 
be  dealt  with,  inquired  of,  tried  and  determined,  and  punished  at 
the  discretion  of  the  court,  in  either  of  the  two  counties  which  may 
be  nearest  to  the  place  where  the  offense  was  committed. 
Code,  s.  1193;  R.  C,  c.  35,  s.  '24. 

3235.  When  assault  in  one  county,  death  in  another.   In  all 

cases  of  felonious  homicide,  when  the  assault  shall  have  been  made 
in  one  county  within  the  state,  and  the  person  assaulted  shall  die 
in  any  other  county  thereof,  the  offender  shall  be  indicted  and  pun- 
ished for  the  crime  in  the  county  wherein  the  assault  was  made. 
Code,  s.  1196;  R.  C.  c.  35,  s.  27;  1831,  c.  22,  s.  1. 

3236.  Assault  in  this  state,  death  in  another.  In  all  cases  of 

felonious  homicide,  when  the  assault  shall  have  been  made  within 
this  state,  and  the  person  assaulted  shall  die  without  the  limits 
thereof,  the  offender  shall  be  indicted  and  punished  for  the  crime  in 
the  coimty  where  the  assault  was  made,  in  the  same  manner,  to  all 
intents  and  purposes,  as  if  the  person  assaulted  had  died  within  the 
limits  of  this  state. 

Code,  s.  1197;  R.  C,  c.  35,  s.  28;  1831,  c.  22,  s.  2. 

3237.  Person  in  this  state  injuring  one  in  another.  If  any  per- 
son, being  in  this  state,  shall  unlawfully  and  wilfully  put  in  motion 
a  force,  from  the  effect  of  which  any  person  shall  be  injured  while 
in  anotlier  state,  the  person  so  setting  such  force  in  motion  shall  be 
guilty  of  the  same  offense  in  this  state,  as  he  would  be  if  the  effect 
had  taken  place  within  this  state. 

1895,  c.  169. 

3238.  Death  in  this  state,  immaterial  where  injury  inflicted.  If 

a  mortal  wound  is  given  or  other  violence  or  injury  intlicted,  or  poi- 
son is  ailniiuistered  on  the  high  sca-<  nr  land,  eitlier  within  or  \\itli- 
out  the  limits  of  this  state,  by  means  whereof  death  ensues  in  any 
county  thereof,  said  offense  may  be  prosecuted  and  punished  in  the 
county  where  the  death  happens. 

1891,  p.  6S. 

3239.  Improper,  taken  advantage  of  by  plea  in  abatement; 
judgment  in  misdemeanors;  trial  in  felonies.  Because  the  bound- 
aries of  numy  counties  are  either  undetermined,  or  unknown,  by 
reason  wliereof  high  offenses  go  unpunished;  therefore,  for  the 
more  effectual  prosecution  of  offenses  committed  on  land  near  the 


3239  CRIMIN'AL  PEOCED.— X/.   Venue.  Ch.   SO 

boundaries  of  counties,  in  the  prosecution  of  all  offenses  it  shall 
be  deemed  and  taken  as  true  that  the  oifense  was  committed  in 
the  county  in  which  by  the  indictment  it  is  alleged  to  have  taken 
place,  unless  the  defendant  shall  deny  the  same  by  plea  in  abate- 
ment, the  truth  whereof  shall  be  duly  verified  on  oath  or  otherwise 
both  as  to  substance  and  fact,  wherein  shall  be  set  forth  the  proper 
county  in  which  the  supposed  offense,  if  any,  was  committed  ;  where- 
upon the  court  may,  on  motion  of  the  state,  commit  the  defendant, 
who  may  enter  into  recognizance,  as  in  other  cases,  to  answer  the 
offense  in  the  county  averred  by  his  plea  to  be  the  proper  county ; 
and,  on  his  prosecution  in  that  county,  it  shall  be  deemed,  conclu- 
sively, to  be  the  proper  county.  But  if  the  state,  upon  the  plea 
aforesaid,  will  join  issue,  and  the  matter  be  found  for  the  defendant, 
he  shall  be  required  to  enter  into  recognizance  as  in  other  cases  to 
answer  the  offense  in  the  county  averred  by  his  plea  to  be  the  proper 
county,  provided  the  offense  be  bailable;  and,  if  not  bailable,  he 
shall  be  committed  for  trial  in  the  county ;  and,  if  it  be  found  for 
the  state,  the  court  in  all  offenses  or  misdemeanors  shall  proceed 
to  pronounce  judgment  against  the  defendant,  as  upon  conviction ; 
and,  in  all  cases  of  felony,  the  defendant  shall  be  at  liberty  to  plead 
to  the  indictment,  and  be  tried  on  his  plea  of  not  guilty. 
Code,  s.  1194;  R.  C,  c.  35,  s.  25. 


Note.     For  venue  in  larceny  and  receiving,  see  Crimes,  s.  .3507. 
For  venue  in  beating  way  on  trains,  see  Crimes,  s.  3748. 

For  venue  in  indictments  against  railroads   for  discriminating  against  A.   & 
N.  C.  Railroad,  see  Crimes,  s.  3750. 

XII.     Presentment. 

3240.  No  person  arrested  on  presentment,  nor  tried  except  on 

indictment.  No  person  shall  be  arrested  on  a  presentment  of  the 
grand  jury,  or  put  on  trial  before  any  court,  but  on  indictment  found 
by  the  grand  jury,  iinless  otherwise  provided  by  law. 

Code,  s.  1175;  R.  C,  c.  35,  s.  6;  1797,  c.  474,  s.  3;  1879,  e.  12. 

Note.     See  Const.,  Art.  I,  ss.  11,  13,  17. 

3241.  Names  of  witnesses  indorsed  on  presentment.  \\'hen  a 

presentment  shall  be  made  of  any  offense  by  a  grand  jury,  upon 
the  knowledge  of  any  of  their  body,  or  upon  the  testimony  of  wit- 
nesses, the  names  of  such  grand  jurors  and  witnesses  shall  be  indorsed 
thereon. 

Code,  s.  1176;  R.  C,  c.  35,  s.  7;  1797,  e.  474,  s.  2. 


3242  CRIMINAL   PEOCED.— Z/7/.  Indictment.  Ch.   80 

XIII.     Indictment. 

3242.  Returned  by  foreman  except  in  capital  cases.    Grand 

juries  shall  return  all  bills  of  indictment  in  open  court  tlirinigh  their 
acting  foreman,  except  iu  capital  felonies,  when  it  shall  be  necessary 
for  the  entire  grand  jury,  or  a  majority  of  them,  to  return  their 
bills  of  indictment  in  open  court  in  a  body. 

1889,  c.  29. 

3243.  Substance  of  proceedings  only  set  forth  in.   In  every 

indictment,  information,  or  impeachment  in  which,  by  the  common 
law,  it  may  be  necessary  to  set  forth  at  length  the  judicial  proceed- 
ings had  in  any  case  then  or  formerly  pending  in  any  court,  civil 
or  military,  or  before  any  justice  of  the  peace,  it  shall  be  sufficient 
to  set  forth  the  substance  only  of  said  proceedings,  or  the  substance 
of  such  jjart  thereof  as  make,  or  help  to  make,  the  offense  prose- 
cuted. 

Code,  s.  11S4;  R.  C,  c.  35.  s.  15. 

3244.  Bill  of  particulars.  In  all  indictments  when  further  infor- 
mation not  required  to  be  set  out  therein  is  desirable  for  the  better 
defense  of  the  accused,  the  court,  upon  motion,  may,  in  its  discretion, 
require  the  solicitor  to  furnish  a  bill  of  particulars  of  such  matters. 

3245.  For  homicide.  In  indictments  for  murder  and  manslaugh- 
ter, it  shall  not  be  necessary  to  allege  matter  not  required  to  be 
proved  on  the  trial ;  but  in  the  body  of  the  indictment,  after  naming 
the  person  accused,  and  the  county  of  his  residence,  the  date  of  the 
offense,  the  averment  "with  force  and  arms,"  and  the  county  of  the 
alleged  commission  of  the  offense,  as  is  now  usual,  it  shall  be  suffi- 
cient in  describing  murder  to  allege  that  the  accused  person  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder 
(naming  the  person  killed),  and  concluding  as  is  now  required  by 
law ;  and  it  shall  be  sufficient  in  describing  manslaughter  to  allege 
that  the  accused  feloniously  and  wilfully,  did  kill  and  slay  (naming 
the  person  killed),  and  concluding  as  aforesaid;  and  any  bill  of 
indictment  containing  the  averments  and  allegations  herein  named 
shall  be  good  and  sufficient  in  law  as  an  indictment  for  murder  or 
manslaughter,  as  the  case  may  be. 

1887,  c.  58. 

3246.  For  perjury.  In  every  indictment  for  wilful  and  corrupt 
perjury,  it  shall  be  sufficient  to  set  forth  the  substance  of  the  offense 
charged  upon  the  defendant,  and  by  what  court,  or  before  Avhom,  the 
oath  was  taken  (averring  such  court  or  person  to  have  competent 
authority  to  administer  the  same),  together  with  the  proper  aver- 


3246  CEIMINAL  PROCED.— A"///.  Indictment.  Ch.   80 

merits  to  falsify  the  matter  wherein  the  perjurv  is  assigi^ecl,  without 
setting  forth  the  bill,  answer,  information,  indictment,  declaration, 
or  any  part  of  any  record  or  proceedings,  either  in  law  or  equity, 
other  than  aforesaid,  and  without  setting  forth  the  commission  or 
authority  of  the  conrt  or  person  before  whom  the  perjury  was  com- 
mitted. 

Code,  s.  ILSo;  It.  C,  c.  35,  s.  IG;   1S42,  c.  49,  s.  1. 

3247.  For  perjury,  form  of.  In  indictments  for  ])L'rjury  the  fol- 
lowing form  shall  be  sufficient,  to-wit: 

The  jurors  for  the  state,  on  their  oath,  present,  that  A.  B..  of county, 

did  unlawfully  commit  perjury  upon  the  trial  of  an  action  in   court,  in 

county,  wherein  was  plaintiff  and  was  defend- 
ant, by  falsely  asserting,  on  oath  (or  solemn  affirmation)  (here  set  out  the  state- 
ment or  statements  alleged  to  be  false),  knowing  the  said  statement,  or  state- 
ments, to  be  false,  or  being  ignorant  whether  or  not  said  statement  was  true. 

1889,  c.  S3. 

3248.  For  subornation  of  perjury.  In  every  indictment  for  sub- 
ornation of  perjury,  or  for  corrupt  bargaining  or  contracting  with 
others  to  commit  wilful  and  corrupt  j^erjury,  it  shall  be  sufficient 
to  set  forth  the  substance  of  the  offense  charged  upon  the  defend- 
ant, without  setting  forth  the  bill,  answer,  information,  indictment, 
declaration  or  any  part  of  any  record  or  proceedings,  and  without 
setting  forth  the  commission  or  authority  of  the  court  or  person 
before  Avhom  the  ])erjury  was  committed  or  was  agreorl  or  jtrnmised 
to  be  committed. 

Code,  s.  1180;  R.  C.  c.  35,  s.  17;   1842,  e.  4!1,  s.  2. 

3249.  When  greater  punishment  for  second  offense,  how  for- 
mer conviction  stated,  in  any  indictment  for  an  offense  which,  on 
the  second  conviction  thereof,  is  ptmislied  with  other  or  greater  pun- 
ishment than  on  the  first  conviction,  it  shall  be  sufficient  to  state 
that  the  offender  was,  at  a  certain  time  and  place,  convicted  thereof, 
without  otherwise  describing  the  ])revious  offense;  and  a  transcript 
of  the  record  of  the  first  conviction,  duly  certified,  sliall,  u]ion  proof 
of  the  identity'  of  the  ]ierson  of  the  offender,  be  sufficient  evidence  of 
the  first  conviction. 

Code,  s.  1187;  R.  C,  e.  35,  s.  1,8. 

3250.  Ownership  of  property  in  common;  how  stated  in.    In 

any  indictment  wherein  it  shall  be  necessary  to  state  the  ownersliip 
of  any  pro]ierty  whatsoever,  whether  real  or  jiersonal,  wliich  sliall 
belong  to,  or  be  in  the  possession  of,  more  than  one  jicrsoii,  wliether 
such  jicrsons  be  ])artiiers  in  trade,  joint  tenants  or  tenants  in  common, 
it  shall  be  sufficient  to  name  one  of  such  persons,  and  to  state  such 
property  to  belong  to  the  person  so  named,  and  another  or  others,  as 

968 


3250  CEIMINAL  PROCED.— XZ/7.  Indictment.  Ch.   SO 

the  case  may  be;  and  whenever,  in  any  such  indictment,  it  shall  be 
necessary  to  mention,  for  any  purpose  whatsoever,  any  partners, 
joint  tenants  or  tenants  in  common,  it  shall  be  sufficient  to  describe 
them  in  the  manner  aforesaid ;  and  this  provision  shall  extend  to 
all  joint  stock  companies  and  trustees. 
Code,  s.  1188;  R.  C,  c.  35,  s.  19. 

3251.  How  money,  bank  notes,  etc.,  described  in.    In  every 

indictment  in  which  it  shall  lie  necessary  to  make  any  averment  as 
to  the  larceny  of  any  money,  or  United  States  treasury  note,  or  any 
note  of  any  bank  whatsoever,  it  shall  be  sufficient  to  describe  such 
money,  or  treasury  note,  or  bank  note,  simply  as  money,  without 
specifying  any  particular  coin,  or  treasury  note,  or  bank  note ;  and 
such  allegation,  so  far  as  regards  the  description  of  the  property, 
shall  be  sustained  by  proof  of  any  amount  of  coin,  or  treasury  note, 
or  bank  note,  although  the  particular  species  of  coin,  of  which  such 
amount  was  composed,  or  the  particular  nature  of  the  treasury  note, 
or  bank  note,  shall  not  be  proven. 
Code,  s.  1190;  1876-7,  c.  68. 

3252.  For  embezzlement.  In  indictments  for  embezzlement,  ex- 
cept when  the  offense  shall  relate  to  a  chattel,  it  shall  be  sufficient 
to  allege  the  embezzlement  to  be  of  money,  without  specifying  any 
particular  coin  or  valuable  security ;  and  such  allegation,  so  far  as 
regards  the  description  of  the  property,  shall  be  sustained  if  the 
offender  shall  be  proved  to  have  embezzled  any  amount,  although 
the  particular  species  of  coin  or  valuable  security  of  which  such 
amount  was  composed  shall  not  be  proved. 

Code,  s.  1020;   1871-2,  c.  145,  s.  2. 

3253.  Intent  to  defraud;  larceny  and  receiving.   In  any  case 

where  an  intent  to  defraud  is  required  to  constitute  the  offense  of 
forgery,  or  any  other  offense  whatever,  it  shall  be  sufficient  to  allege 
in  the  indictment  an  intent  to  defraud,  without  naming  therein  the 
particular  person  or  body  corporate  intended  to  be  defrauded ;  and 
on  the  trial  of  such  indictment,  it  shall  be  sufficient,  and  shall  not 
be  deemed  a  variance,  if  there  appear  to  be  an  intent  to  defraud  the 
United  States,  or  any  state,  county,  city,  town,  or  parish,  or  body 
corporate,  or  any  public  officer,  in  his  official  capacity,  or  any  copart- 
nership or  member  thereof,  or  any  particular  person.  The  defend- 
ant may  be  charged  in  the  same  indictment  in  several  counts  witli 
the  separate  offenses  of  receiving  stolen  goods,  knowing  them  to  be 
stolen,  and  larceny. 

Code,  s.  1191;  R.  C.  c.  35,  ss.  21,  23;  1852,  c.  87,  s.  2;  1874-5,  c.  62. 


325i  CRIMINAL  PROCED.— A7//.  Indictment.  Ch.  SO 

3254.  Not  quashed  for  informality.  Every  criminal  proceeding 
by  warrant,  iiulictiiR'ut,  inforniatiiai,  (ir  iinpeachnient,  shall  be  suffi- 
cient in  form  for  all  intents  and  ])nr]ioses,  if  it  express  the  charge 
against  the  defendant  in  a  plain,  intelligible,  and  explicit  manner; 
and  the  same  shall  not  be  quashed,  nor  the  judgment  thereon  stayed, 
by  reason  of  any  informality  or  refinement,  if  in  the  bill  or  ])ro- 
ceeding,  sufficient  matter  appears  to  enable  the  court  to  proceed  to 
judgment. 

Code,  s.  11S3;  R.  C,  c.  35,  s.  14;  37  Ilin.  Vlll.,  c.  8:  1784,  c.  210,  s.  2;  1811, 
c.  800. 

3255.  Defects  Wllioh  do  not  vitiate.  Xo  judgment  upon  any 
indictment  for  felony  or  misdemeanor,  whether  after  verdict,  or  by 
confession,  or  otherwise,  shall  be  stayed,  or  reversed  for  the  want 
of  the  averment  of  any  matter  unnecessary  to  be  proved,  nor  for 
omission  of  the  words  "as  appears  by  the  record,"  or  of  the  words 
"with  force  and  arms,"  nor  for  the  insertion  of  the  words  "against 
the  form  of  the  statutes"  instead  of  the  words  "against  the  form  of 
the  statute,"  or  vice  versa ;  nor  for  omission  of  the  words  "against 
the  form  of  the  statute"  or  "against  the  form  of  the  statutes,"  nor  for 
omitting  to  state  the  time  at  which  the  offense  was  committed,  in  any 
case  where  time  is  not  of  the  essence  of  the  offense,  nor  for  stating 
the  time  imperfectly,  nor  for  stating  the  offense  to  have  been  com- 
mitted on  a  day  subsequent  to  the  finding  of  the  indictment,  or  on 
an  impossible  day,  or  on  a  day  that  never  happened ;  nor  for  want 
of  a  proper  and  perfect  venue,  when  the  court  shall  appear  by  the 
indictment  to  have  had  jurisdiction  of  the  offense. 

Code,  s.  1189;  R.  C,  c.  35,  s.  20;  7  Hen.  VIII..  c.  8. 


Note.     For  procedure  in  indictments  for  libel,  see  ss.  2014,  3267. 
XIV.     Trial  Before  Justice. 

3256.  To  hear  and  determine  case,  when.  When  the  justice  shall 

be  satisfied  that  he  has  jurisdicti<Mi,  if  no  jury  shall  be  asked  for, 
he  shall  proceed  to  determine  the  ease,  and  shall  either  acquit  the 
accused  or  find  him  giiilty,  and  sentence  him  to  such  p\inishment  as 
the  case  may  require,  not  to  exceed  in  any  case  a  fine  of  fifty  dollars, 
or  imprisonment  in  the  county  jail  for  thirty  days. 

Code,  s.  807;   ISGS-O,  c.   178,  subc.  4,  s.  8. 

3257.  Trial  by  jury,  if  demanded,  if  either  the  complainant  or 
the  accused  shall  ask  for  it,  the  justice  shall  allow  a  trial  by  jury, 
as  is  provided  in  civil  actions  before  justices  of  the  peace. 

Code,  8.  898;   1808-9,  c.  178,  subc.  4,  s.  9. 
070 


3258        CRIMINAL  PEOCED.— .Y/F.  Trial,  Justice.        Ch.  80 

3258.  What  submitted  to  jury.  In  case  a  trial  by  jury  shall  be 
had,  the  justice  shall  submit  to  the  jury  in  each  case  simply  the 
question  of  the  guilt  or  innocence  of  the  accused  of  the  offense 
charged,  and  shall  enter  the  verdict  on  his  docket,  and  adjudge 
accordingly. 

Code,  s.  809;   1868-9,  c.  178,  subc.  4,  s.  10. 

3259.  Commitment  after  judgment.    The  commitment  to  the 

county  prison  shall  set  forth — 

1.  The  name  of  the  guilty  person. 

2.  The  nature  of  the  offense  of  which  he  is  convicted  and  the 
date  of  the  trial. 

3.  The  period  of  his  imprisonment. 

4.  It  shall  be  directed  to  the  sheriff  of  the  county,  or  to  the  keeper 
of  the  coimty  jail,  and  shall  direct  him  to  keep  the  prisoner  for  the 
time  stated,  or  until  discharged  by  law. 

5.  The  name  of  the  constable  or  other  officer  required  to  exe- 
cute it. 

6.  It  shall  be  signed  by  the  jiistice  and  be  dated. 
Code,  s.  1238;  1868-9,  c.  178,  subc.  4,  s.  17. 

3260.  Parties  entitled  to  copy  of  papers;  bar  to  indictment.  lie 

sliall  give  to  either  party  on  request,  and  on  jiayment  of  liis  lawful 
fee,  a  copy  of  the  complaint  and  of  his  finding  and  sentence.  Such 
finding  and  sentence  may  be  pleaded  in  bar  of  any  indictment  sub- 
sequently found  for  the  same  offense. 

Code,  ss.  902,  903;   1868-9,  c.  178,  subc.  4,  ss.  13,  14. 

3261.  Justice  to  make  report  of  all  criminal  actions  of  which 

he  has  assumed  final  jurisdiction.  It  shall  be  the  duty  of  each  jus- 
tice of  the  peace  on  or  before  Monday  of  every  term  of  the  superior 
court  of  his  county,  to  furnish  the  clerk  of  said  court  with  a  list 
of  the  names  and  offenses  of  all  parties  tried  and  finally  dis^^osed 
of  by  such  justice  of  the  peace,  together  with  the  papers  in  each 
case,  in  all  criminal  actions,  since  tlie  last  term  of  tlie  superior  court. 
The  clerk  of  the  court  shall  hand  a  copy  of  such  list  to  the  solicitor 
and  to  the  grand  jury  at  each  term  of  coiirt ;  and  no  indictment  shall 
be  found  against  any  party  whose  case  has  been  so  finally  disposed  of 
by  any  justice  of  the  jieace :  Provided,  that  this  section  shall  not  be 
deemed  to  extend  or  enlarge  or  otherwise  affect  the  jurisdiction  of 
justices  of  the  peace,  except  as  provided  by  law. 
Code,  s.  906;  1869-70,  c.  110. 


3262  CRIMINAL  PROCED.— ZF.  Trial,  etc.  Ch.  80 

XV.     Trial,  Superior  Court. 

3262.  Prisoner  mute,  plea  "not  guilty"  entered,  if  auy  person, 

being  arraigned  upon  or  charged  in  any  indictment  for  any  crime, 
sball  stand  miite  of  malice  or  will  not  answer  directly  to  the  indict- 
ment, the  court  shall  order  the  plea  of  "not  guilty"  to  be  entered  on 
behalf  of  such  person ;  and  the  plea  so  entered  shall  have  the  same 
force  and  effect  as  if  such  person  had  pleaded  the  same. 
Code,  s.  1198;  R.  C,  c.  35,  s.  29;  R.  S.,  c.  35,  s.  16. 

3263.  Peremptory   challenges   by   defendant;   judge   decides 

competency.  Every  person  on  joint  or  several  trial  for  his  life  may 
make  a  peremptory  challenge  of  twenty-three  jurors  and  no  more ; 
and  in  all  joint  or  several  trials  for  crimes  and  misdemeanors,  other 
than  cajjital,  every  person  on  trial  shall  have  the  right  of  challenging 
peremjjtorily  and  without  showing  cause,  four  jurors  and  no  more. 
And  to  enable  defendants  to  exercise  this  right,  the  clerk  in  all  such 
trials  shall  read  over  the  names  of  the  jurors  on  the  panel,  in  the 
presence  and  hearing  of  the  defendants  and  their  counsel  before  tbe 
jury  shall  be  impaneled  to  try  the  issue ;  and  the  judge  or  other  pre- 
siding officer  of  the  court  shall  decide  all  questions  as  to  the  compe- 
tency of  jurors. 

Code,  s.  1199;  1887,  c.  53;  R.  C,  c.  35,  s.  32;  1871-2,  c.  39;  R.  S.,  c.  35,  ss.  19, 
21;  1777,  c.  115,  s.  85;  1812,  c.  833;  1801,  c.  592,  s.  1;  1826,  c.  9;  22  Hen.  VIII., 
c.  14.  s.  6. 

3264.  Peremptory  challenges  by  state,  in  all  capital  cases,  the 

prosecuting  ctticer  on  behalf  of  the  state  shall  ha\'e  the  right  of  chal- 
lenging peremptorily  four  jurors  for  each  defendant.  Said  chal- 
lenge must  be  made  before  the  juror  is  tendered  to  the  prisoner; 
and  if  he  will  challenge  more  than  four  jnrnrs  lie  shall  assign  for  his 
challenge  a  cause  certain ;  and  in  all  other  cases  of  a  criminal  na- 
ture, a  challenge  of  two  jnrors  shall  be  allowed  in  behalf  of  the 
state,  and  challenges  also  for  a  cause  certain,  and  in  all  cases  of 
cliallenge  for  cause  certain  the  same  shall  be  inquired  of  according 
to  the  custom  of  the  court. 

Code,  s.  1200;  1887,  c.  53;  R.  C,  c.  35,  i5.  33;  33  Edw.  I.,  c.  4;  1827,  c.  10. 

3265.  Jurors  on  special  venire  subject  to  challenge  as  tales 

jurors.  In  the  trial  of  all  criminal  cases,  where  a  special  venire  shall 
be  ordered,  the  same  causes  of  challenge  to  the  jurors  summoned  on 
the  special  venire  shall  be  allowed  as  exist  to  tales  jurors. 

1SS7.  e.  53. 

3266.  Term  expiring  during  trial,  court  continued;  civil  actions. 

In  case  the  term  of  a  court  shall  expire  while  a  trial  f(u-  felony  sliall 

972 


3266  CEIMINAL  PEOCED.— A'T'.  Trial,  etc.  Ch.   80 

be  in  progress,  and  before  judgment  shall  be  given  therein,  the  judge 
shall  continue  the  term  as  long  as  in  his  opinion  it  shall  be  necessary 
for  the  purposes  of  the  case ;  and  he  may  in  his  discretion  exercise 
the  same  power  in  the  trial  of  any  other  caiise  under  the  same  circum- 
stances, except  civil  actions  begun  after  Thursday  of  the  last  week. 
Code,  s.  1229;  18P3,  c.  22G;  C.  C.  P.,  s.  307;  E.  C,  c.  31,  s.  16;  1830,  c.  22. 

3267.  Libel,  defense  to.  Every  defendant  who  shall  be  charged 
by  indictment  with  the  publication  of  a  libel  may  prove  ou  the  trial 
for  the  same  the  truth  of  the  facts  alleged  in  the  indictment;  and 
if  it  shall  appear  to  the  satisfaction  of  the  jury  that  the  facts  are 
true,  the  defendant  shall  be  acquitted  of  the  charge. 

Code,  s.  1195:  E.  C,  c.  35,  s.  26. 

3268.  Defendant  convicted  of  assault;  when  included  in  charge. 

On  the  trial  of  any  person  for  rape,  or  any  felony  whatsoever,  when 
the  crime  charged  shall  include  an  assault  against  the  person,  it 
shall  be  lawful  for  the  jury  to  acquit  of  the  felony  and  to  find  a  ver- 
dict of  guilty  of  assault  against  the  person  indicted,  if  the  evidence 
shall  warrant  such  finding;  and  when  such  verdict  shall  be  found 
the  court  shall  have  power  to  imprison  the  person  so  found  guilty 
of  an  assault,  for  any  term  now  allowed  by  law  in  cases  of  conviction 
when  the  indictment  was  originally  for  the  assault  of  a  like  charac- 
ter. 

1SS5,  c.  68. 

3269.  Conviction  may  be  for  a  less  degree  or  an  attempt. 

Upon  the  trial  of  any  indictment  the  prisoner  may  be  convicted  of 
the  crime  charged  therein  or  of  a  less  degree  of  the  same  crime,  or 
of  an  attempt  to  commit  tlie  crime  so  charged,  or  of  an  attempt  to 
commit  a  less  degree  of  the  same  crime. 
1891,  c.  205,  s.  2. 

3270.  Burglary  in  first  degree  charged,  verdict  may  be  for 

second.  ^Mien  the  crime  charged  in  the  bill  of  indictment  is  bur- 
glary in  the  first  degree,  the  jury  may  render  a  verdict  of  guilty  of 
burglary  in  the  second  degree  if  they  deem  it  proper  so  to  do. 
1889,  c.  434,  s.  3. 

3271.  Verdict  for  murder  in  the  second  degree  on  bill  for  first. 

Nothing  contained  in  the  statute  law  dividing  nuirder  into  degrees 
shall  be  construed  to  require  any  alteration  or  modification  of  the 
existing  form  of  indictment  for  murder,  b^it  the  jury  before  whom 
the  offender  is  tried  shall  determine  in  their  verdict  whether  the 
crime  is  murder  in  the  first  or  second  degree. 
1893,  c.  85,  s.  3. 

073 


3272  CRIMINAL  PROCED.— XT'.  Trial,  etc.  Cli.   SO 

3272.  New  trial  to  defendant.  The  courts  may  grant  new  trials 
in  criminal  cases  when  the  defendant  is  found  guilty,  under  the 
same  rules  and  regulations  as  in  civil  cases. 

Code,  s.  1202;  R.  C,  e.  35,  s.  35;  1815,  c.  895. 

3273.  IMol.  pros,  after  two  terms;  when  capias  and  subpoenas 

to  issue.  A  nolle  prosetiui  "with  leave"  shall  Ik-  ciitered  in  all  crimi- 
nal actions  in  which  the  indictment  has  been  pending  for  two  terms  of 
court  and  the  defendant  has  not  been  apprehended  and  in  which  a 
nolle  prosequi  has  not  been  entered,  unless  the  judge  for  good  cause 
shown  shall  order  otherwise.  The  clerk  of  the  superior  court  shall 
issue  a  capias  for  the  arrest  of  any  defendant  named  in  any  criminal 
action  in  which  a  nolle  prosequi  has  been  entered  when  he  has  rea- 
sonable gTOund  for  believing  that  such  defendant  may  be  arrested  or 
upon  the  application  of  the  solicitor  of  the  district.  When  any  de- 
fendant shall  be  arrested  it  shall  be  the  duty  of  the  clerk  to  issue  a 
subpcena  for  the  witnesses  for  the  state  endorsed  on  the  indictment. 

1905,  c.  360,  ss.  1,  3,  4. 

Note.     For  clerk's  nol.  pros,  docket,  see  s.  914. 

XVI.     Appe.\l. 

3274.  Defendant  may  appeal;  trial  de  novo.  The  accused  may 

appeal  from  the  sentence  of  the  justice  to  the  superior  court  of  the 
county.  On  such  appeal  being  prayed,  the  justice  shall  recogiiize 
both  the  prosecutor  and  the  accused,  and  all  the  material  witnesses, 
to  appear  at  the  next  term  of  the  court,  in  such  sums  as  he  shall  think 
proper ;  and  he  may  require  the  accused  to  give  sureties  for  his  ap- 
pearance as  aforesaid.  In  all  cases  of  appeal,  the  trial  shall  be 
anew,  without  prejudice  from  the  former  proceedings. 
Code,  s.  900;   1868-9,  c.  ITS,  subc.  4,  s.  11:   1879,  c.  92.  s.  10. 

3275.  Papers  sent  to  appellate  court;  return  what  to  contain. 

In  every  case  in  which  an  appeal  shall  be  prayed  the  justice  shall 
forthwith  transmit  to  the  clerk  of  the  superior  court  of  the  county  all 
papers  in  the  case,  together  with  a  copy  of  the  verdict,  if  any,  of 
his  determination  of  the  facts  if  there  shall  have  been  no  trial  by 
jury,  and  of  the  sentence,  in  which  shall  be  set  forth  all  the  facts 
found  by  him,  as  well  as  his  tinding  of  those  which  were  alleged  in 
the  complaint,  and  which  were  found  by  him  not  to  be  proved. 

Code,  s.  901;   1808-9,  c.  178,  subc.  4,  s.  12. 

3276.  When  state  may  appeal.   An  appeal  to  the  supreme  court 

may   be  taken   by   the   state   in    the   following  cases,   and   no   other. 
Where  judgment  has  been  given  for  the  defendant — 
1.     Upon  a  special  verdict. 

974 


3276  CRIMINAL  PROCED.— XT7.     Appeal.  Cli.  80 

2.  Upon  a  demurrer. 

3.  Upon  a  motion  to  quash. 

4.  Upon  arrest  of  judgment. 
Code,  s.  1237. 

3277.  When  defendant  may  appeal,  in  all  cases  of  conviction  in 

the  superior  court  for  any  criminal  offense,  the  defendant  shall  have 
the  right  to  appeal,  on  giving  adequate  security  to  abide  the  sentence, 
judgment  or  decree  of  the  supreme  court;  and  the  appeal  shall  be 
perfected  and  the  case  for  the  supreme  court  settled,  as  provided  in 
civil  actions. 

Code,  s.  1234;  R.  C,  c.  4.  s.  21;  1818.  c.  9G2,  s.  4. 

3278.  Defendant  may  appeal  without  security  for  costs.  In  all 

such  cases  of  conviction  in  the  said  courts,  the  defendant  shall  have 
the  right  to  appeal  without  giving  security  for  costs,  upon  filing  an 
affidavit  that  he  is  wholly  unable  to  give  security  for  the  costs,  and  is 
advised  by  counsel  that  he  has  reasonable  cause  for  the  appeal 
prayed,  and  that  the  application  is  in  good  faith. 

Code,  s.  1235;   1809-70,  c.  190,  s.  1. 

3279.  Appeal  granted,  bail  allowed  defendant.  It  shall  be  the 

duty  of  the  judge  on  filing  the  afiidavit  required  in  the  preceding 
section,  to  grant  the  appeal  without  security  for  costs ;  and  for  any 
bailable  offense  shall  require  the  defendant  to  enter  into  recognizance 
in  a  reasonable  sum  to  make  his  appearance  at  the  first  term  of  the 
superior  court  to  be  held  in  the  county  and  to  further  answer  the 
charge  preferred. 

Code,  s.  1230;   1809-70.  c.  190,  s.  2. 

3280.  Bail  pending  appeal.  When  any  person  convicted  of  a  mis- 
demeanor, and  sentenced  by  the  court,  sliall  appeal,  the  court  shall 
allow  such  person  to  give  bail  pending  appeal. 

Code,  s.  1181;  R.  C,  c.  3,5,  s.  12;   1850-1,  c.  2. 

3281.  Appeal  not  to  vacate  judgment;  stays  execution.    In 

criminal  cases  an  appeal  to  the  supreme  court  shall  not  have  the 
effect  of  vacating  the  judgment  appealed  from,  but  upon  perfecting 
the  appeal  as  now  required  by  law,  cither  by  giving  bond  or  in  forma 
pauperis,  there  shall  be  a  stay  of  execution  during  the  pendency  of 
the  appeal. 

1887,  c.   191,  s.  1;   1887,  c.  192,  s.  4. 

3282.  Judgment  for  fines  docketed;  lien  as  other  judgments; 

execution  issued.  When  the  sentence  in  whole  or  in  part  directs  the 
payment  of  a  fine,  the  judgment  shall  be  docketed  by  the  clerk  and 


3282  CRIMINAL  PEOCED.— Z17.  Appeal.  Cb.  SO 

be  a  lien  on  tbe  real  estate  of  tbe  defendant  in  tbe  same  manner  as 
judgments  in  civil  actions,  and  executions  tbereon  shall  only  be 
stayed,  npon  an  appeal  taken,  by  secnrity  being  given  in  like  man- 
ner as  is  required  in  civil  cases.  Should  tbe  judgment  be  affirmed, 
upon  appeal  to  the  supreme  court,  tbe  clerk  of  the  superior  court,  on 
receipt  of  tbe  certificate  from  the  supreme  court,  shall  issue  execu- 
tion on  such  judgment. 
1887,  c.  191,  s.  3. 

3283.  Upon  receipt  of  certificate  of  opinion  of  supreme  court, 

what  to  be  done.  The  clerk  of  the  superior  court,  in  all  cases  where 
the  judgment  has  been  affirmed  (except  where  the  conviction  is  a 
capital  felony),  shall  forthwith  on  receipt  of  the  certificate  of  the 
opinion  of  tbe  siipreme  court  notify  tbe  sheriff,  who  shall  proceed  to 
execute  tbe  sentence  which  was  appealed  fi-om.  In  criminal  cases 
where  tbe  judgment  is  not  affirmed  tbe  cases  shall  be  placed  upon 
tbe  docket  for  trial  at  the  first  ensuing  term  of  the  court  after  tbe 
receipt  of  such  certificate. 
1887,  c.  192,  s.  3. 

XVII.     Execution. 

3284.  Governor  to  issue  warrant  for  execution  of  death  pen- 
alty. In  all  cases  of  affirmance  of  a  sentence  for  a  capital  felony 
the  clerk  of  tbe  supreme  court,  at  tbe  same  time  that  tbe  decision 
of  tbe  supreme  court  is  certified  down  to  tbe  superior  court,  shall 
send  a  duplicate  thereof  to  the  governor,  who  shall  immediately 
issue  his  warrant  under  tbe  great  seal  of  the  state  to  tbe  sheriff  of 
the  county  in  Avhich  the  appellant  was  sentenced,  directing  him  to 
execute  tbe  death  penalty  on  a  day  specified  in  said  warrant,  not  less 
than  thirty  days  from  tbe  date  of  said  warrant;  but  this  shall  not 
deprive  the  governor  of  the  power  to  pardon  or  reprieve  the  defend- 
ant or  to  commute  tbe  sentence. 

1887,  c.  192,  s.  3. 

3285.  Capital  executions  private.  As  the  ends  of  justice,  public 

morals  and  tbe  ])rescrvation  of  order  demand  that  tbe  execution  of 
all  capital  offenders  should  be  made  private  and  invested  with  tbe 
solemnity  appropriate  to  the  final  act  of  penal  law,  any  sheriff  on 
whom  shall  devolve  tbe  execution  of  a  sentence  of  death  on  a  public 
offender  shall  be  required  to  provide  for  the  execution  of  such  crimi- 
nal within  the  jailyard  inclosurc,  and  as  much  removed  from  public 
view  as  tbe  means  within  his  control  will  allow. 

Coilo,  s.  1243;   inOl,  c.  215;   1868-9,  c.  21,  ss.  1,  2;   1879.  c.  221. 

3286.  Witnesses  and  necessary  assistants  to  be  present  at 

execution.  The  sheriff,  after  having  provided  for  tlio  ]irivate  execu- 


3286  CRIMINAL  PEOCED.— ZF77.  Execution.  Cli.   SO 

tion  of  the  criminal,  may  admit  by  ticket,  in  addition  to  the  required 
guard,  two  physicians  and  necessary  assistants,  not  more  than  thirty- 
six  nor  less  than  eighteen  respectable  citizens,  to  witness  for  tlie 
state  the  due  observance  of  the  law.  The  board  of  commissioners  of 
Cumberland  coTinty  shall  have  the  power,  in  their  discretion,  to  pre- 
scribe the  place  within  said  county  for  the  execution  of  criminals  in 
capital  cases :  Provided,  that  no  such  execution  shall  be  public. 
Code,  s.  1244;  1868-9,  c.  21,  s.  3;  1905,  c.  450. 

Note.     For  incendiary  fires,  procedure  for  investigating,  see  Insurance. 

For  procedure  in  mayor's  court,  see  Towns  and  Cities. 

For  outlawing  by  justices,  see  s.  3183. 

When  defendant  imprisoned  for  nonpayment  of  fine  and  costs,  see  Costs,  s.  1292. 


Rev.  Vol.  I— .58 


3287 


CRIMES — /.   General  Provisions. 


Ch.   81 


CHAPTER  81. 
CRIMES. 


Sections. 

I. 

General  provisions, 

3287—3293 

11. 

Animals, 

3294—3323 

III. 

Banks, 

3324—3326 

IV. 

Building  and  loan  associations, 

3327—3329 

V. 

Burglary, 

3330—3334 

VI. 

Burnings, 

3335—3347 

VII. 

Chastity, 

3348—3354 

VIII. 

Domestic  relations, 

3355—3374 

IX. 

Drainage, 

3375—3383 

X. 

Elections, 

3384—3402 

XI. 

Embezzlement, 

3403—3410 

XII. 

Fences, 

3411—3413 

XIIL 

Fishing, 

3414—3418 

XIV. 

Forgery, 

3419—3427 

XV. 

Frauds, 

3428—3436 

XVI. 

Government, 

3437—3439 

XVII. 

Health, 

3440—3458 

XVIII. 

Hunting, 

3459—3481 

XIX. 

Insurance, 

3482-3407 

XX. 

Larceny, 

3498—3511 

XXI. 

Liquors, 

3512—3535 

XXII. 

National  guard. 

3536—3.542 

XXIII. 

Navigation, 

3543—3564 

XXIV. 

Officers. 

3565— 3G10 

XXV. 

Perjury, 

3611—3617 

XXVI. 

Persons, 

3618— .3640 

XXVII. 

Professions, 

3641—36.56 

XXVIII. 

Prisoners  and  convicts, 

3657—3662 

XXIX. 

Property, 

3663—3689 

XXX. 

Public  justice. 

3690—3702 

XXXI. 

Public  pcice. 

3703—3708 

XXXII. 

Public  police. 

3709—3740 

XXXIII. 

Public  property, 

3741—3746 

XXXIV. 

Railroads, 

3747—3768 

XXXV. 

Roads  and  liridges. 

3769—3785 

XXXVI. 

Revenue, 

3786—3792 

XXXVII. 

Safety, 

379.3—3802 

XXXVIII. 

Sales, 

3803—3832 

XXXIX. 

Schools, 

383.3—3840 

XL. 

Sunday, 

3841—3844 

XLI. 

Telegraph  and  telephone. 

3845—3840 

XTJI. 

Trademarks, 

3850—3856 

XLTII. 

Watersheds. 

3857— .3862 

I.     Gkxeh.vl  Provisions. 


3287.  Accessories  to  felonies  before  the  fact;  when,  where,  and 

how  tried  and  punished.  If  any  person  shall  connsel,  procure  or 
CMininiimil  any  citlicr  ))crson  to  coniiiiit  any  felony,  wlicthcr  the  same 
be  a  felony  at  connnon  law  nr  li\-  \-irtne  of  any  statute,  the  person 

!)78 


I 


3287  CRIMES— 7.   General  Provisions.  Ch.   81 

so  counseling,  procuring,  or  commanding,  shall  be  guilty  of  felony, 
and  may  be  indicted  and  convicted,  either  as  an  accessory  before  the 
fact  to  the  principal  felony,  together  with  the  principal  felon,  or 
after  the  conviction  of  the  principal  felon;  or  may  be  indicted  and 
convicted  of  a  substantive  felony,  whether  the  principal  felon  shall 
or  shall  not  have  been  previously  convicted,  or  shall  or  shall  not  be 
amenable  to  justice,  and  may  be  punished  in  the  same  manner  as 
any  accessory  before  the  fact  to  the  same  felony,  if  convicted  as  an 
accessory,  may  be  punished;  and  the  offense  of  the  person  so  coun- 
seling, procuring,  or  commanding,  howsoever  indicted,  may  be  in- 
quired of,  tried,  determined  and  ]iunished  by  any  court  which  shall 
have  jurisdiction  to  try  the  priucijial  felon,  in  the  same  manner  as 
if  such  offense  had  been  committed  at  the  same  place  as  the  prin- 
cipal felony  or  where  the  principal  felony  is  triable,  although  such 
offense  may  have  been  committed  at  any  place  within  or  without  the 
limits  of  the  state;  and  in  case  the  jirincipal  felony  shall  have  been 
committed  within  the  body  of  any  county,  and  the  offense  of  coun- 
seling, procuring  or  commanding  shall  have  been  committed  within 
the  body  of  any  other  county,  the  last-mentioned  offense  may  be 
inquired  of,  tried,  determined,  and  punished  in  either  of  such  coun- 
ties: Provided,  that  no  person  who  shall  be  once  duly  tried  for  any 
such  offense,  whether  as  an  accessory  before  the  fact,  or  as  for  a 
substantive  felony,  shall  be  liable  to  be  again  indicted  or  tried  for 
the  same  offense. 

Code,  s.  977;  R.  C,  c.  34,  s.  53;  1797,  c.  485,  s.  1;  1852,  c.  58. 

3288.  Accessories  punished,  principal  not  tried.  In  order  that 

accessories  may  be  convicted  and  punished  in  all  cases,  if  any  prin- 
cipal offender  shall  be  in  anywise  convicted,  it  shall  be  lawful  to  pro- 
ceed against  an  accessory,  either  before  or  after  the  fact,  in  the  same 
manner  as  if  the  principal  felon  shall  die  or  be  pardoned  or  other- 
wise delivered  before  or  after  sentence  or  punishment,  and  every 
such  accessory  shall  suffer  the  same  punishment,  if  he  be  in  anywise 
convicted,  as  he  should  have  suffered  if  the  principal  had  been  sen- 
tenced or  punished. 

Code,  s.  979;  E.  C,  c.  34,  s.  55. 

3289.  Accessories  to  felonies  after  the  fact;  when,  where,  and 

how  tried  and  punished.  If  any  person  shall  become  an  accessory 
after  the  fact  to  any  felony,  whether  the  same  be  a  felony  at  common 
law  or  by  virtue  of  any  statute  made,  or  to  be  made,  such  person 
shall  be  guilty  of  a  felony,  and  may  be  indicted  and  convicted  to- 
gether with  the  principal  felon,  or  after  the  conviction  of  the 
principal  felon,  or  may  be  indicted  and  convicted  for  such  felony, 
whether  the  principal  felon  shall  or  shall  not  have  been  previously 


3289  CRIMES—/.   Ge7icral  Provisio7is.  Ch.  81 

convicted,  or  shall  or  shall  not  be  amenable  to  justice,  and  shall  be 
punished  by  inii>risoiiuient  in  the  state's  ])rison  or  county  jail  for 
not  less  than  four  months  uor  more  than  ten  years ;  and  may  also 
be  fined  in  the  discretion  of  the  court.  And  the  offense  of  such  per- 
son may  be  inquired  of,  tried,  determined  and  punished  by  any  court 
which  shall  have  jurisdiction  of  the  principal  felon,  in  the  same  man- 
ner as  if  the  act,  by  reason  whereof  such  person  shall  have  become 
an  accessory,  had  been  conunitted  at  the  same  place  as  the  principal 
felony,  althoiigh  such  act  may  have  been  committed  without  the 
limits  of  the  state ;  and  in  case  the  principal  felony  shall  have  been 
committed  within  the  body  of  any  county,  and  the  act  by  reason 
whereof  any  person  shall  have  become  accessory  shall  have  been 
committed  within  the  body  of  any  other  county,  the  offense  of  such 
person  guilty  of  a  felony  as  aforesaid  may  be  inquired  of,  tried, 
determined,  and  punished  in  either  of  said  comities:  Provided,  that 
no  person,  who  shall  be  once  duly  tried  for  such  felony,  shall  be 
again  indicted  or  tried  for  the  same  offense. 

Code.  s.  978;  K.  C,  c.  34  s.  54;   1797,  c.  485,  s.  1;   1852,  c.  58. 

3290.  Accessories  before  the  fact,  how  punished.  Any  person 

who  shall  be  convicted  as  an  accessory  before  the  fact  in  either  of 
the  crimes  of  murder,  arson,  burglary  or  rape,  shall  be  imprisoned 
for  life  in  the  state's  prison.  An  accessor}'  before  the  fact  to  the 
stealing  of  any  horse,  mare,  gelding  or  mule,  on  being  duly  con- 
victed thereof,  shall  be  imprisoned  in  the  state's  prison  for  not  less 
than  five  nor  more  than  twenty  years,  in  the  discretion  of  the  court. 
Every  accessory  before  the  fact,  in  any  other  felony,  shall  be  pun- 
ished by  imprisonment  in  the  state's  prison  or  county  jail  for  not 
more  than  ten  years,  or  may  be  fined,  in  the  discretion  of  the  court. 
Code,  s.  980;  1868-9,  c.  31,  s.  2;  1874-5,  c.  212. 

3291.  Felonies  and  misdemeanors  defined.  A  felony  is  a  crime 

which  is  or  may  be  ]iiinislinble  by  either  death  or  imju'isonment  in 
the  state's  prison.     Any  other  crime  is  a  misdemeanor. 
1891,  c.  205,  s.  1. 

3292.  Felonies,  punishment  of.  Every  person  who  shall  be  con- 
victed of  any  felony  for  which  no  specific  punishment  is  prescribed 
by  statute,  shall  be  imprisoned  in  the  connty  jail  or  state's  j)rison 
not  exceeding  two  years,  or  be  fined,  in  tiie  discretion  of  the  court, 
or  if  the  offense  bo  infamous,  the  person  offending  shall  be  im- 
])risoned  in  the  county  jail  or  state's  prison  not  loss  than  four 
months  nor  more  than  ten  years,  or  be  fined. 

Code,  s.  1096;  R.  C,  c.  34,  s.  27. 


3293  CRIMES—/.  General  Provisions.  Cli.   81 

3293.  Misdemeanors,  punishment  of.  All  misdemeanors,  where 
a  specific  jjuiiisliiiicnt  is  not  prescribed,  shall  be  punished  as  misde- 
meanors at  common  law;  but  if  the  offense  be  infamous,  or  done  in 
secrecy  and  malice,  or  with  deceit  and  intent  to  defraud,  the  offender 
shall  be  punished  by  imprisonment  in  the  county  jail,  not  less  than 
four  months  nor  more  than  ten  years,  or  be  fined. 

Code,  s.   1097;  R.  C,  c.  34,  s.  120. 

II.     Animals. 

3294.  Contagious  diseases;  rules  for  prevention  of.   if  any 

person  shall  wilfully  violate  any  regulation  nuule  by  the  board  of 
agriculture  for  the  quarantine  of  infected  animals  or  for  the  trans- 
portation of  stock  into  this  state,  or  for  transporting  stock  from  one 
section  of  the  state  to  another  section,  or  for  the  establishment  and 
maintenance,  in  co-operation  with  the  department  of  agriculture  of 
the  United  States,  of  cattle  districts  or  quarantine  lines  to  prevent 
the  infection  of  cattle  from  splenic  or  Spanish  fever,  Texas  fever  or 
other  infectious  or  contagious  diseases,  he  shall  be  guilty  of  a  mis- 
demeanor. 

1901,  c.  479,  s.  4,  b3. 

3295.  Contagious  disease,  having,  sold,   if  any  person  shall 

sell,  or  offer  for  sale,  or  shall  use,  or  expose,  or  cause  or  procure  to 
be  sold  or  offered  for  sale,  or  to  be  used  or  exposed,  any  horse  or 
other  animal  having  the  disease  known  as  glanders  or  farcy,  or  any 
other  contagious  or  infectious  disease  known  by  such  person  to  be 
dangerous  to  life,  or  which  shall  be  diseased  past  recovery,  he  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined  not 
more  than  fifty  dollars  or  imprisoned  not  more  than  thirty  days. 

Code,  s.  2488;  1891,  c.  65;  1881,  c.  368,  s.  7. 

3296.  Contagious  diseases;  having  glanders  or  farcy  to  be 

killed.  If  the  owner  of  any  animal  having  the  glanders  or  farcy 
shall  omit  or  refuse,  upon  discovery  or  knowledge  of  its  condition, 
to  deprive  the  same  of  life  at  once  he  shall  be  guilty  of  a  misdemeanor 
and  upon  conviction  shall  be  fined  not  more  than  fifty  dollars  or  im- 
prisoned not  more  than  thirty  days. 

Code.  s.  2489;  1891.  c.  65;  1881,  c.  368,  s.  8. 

3297.  Contagious  diseases;  hogs  not  to  run  at  large,   if  any 

person  having  swine  affected  with  the  disease  known  as  hog  cholera, 
or  any  other  infectious  or  contagious  disease,  and  discovering  the 
same,  or  to  whom  notice  of  the  fact  shall  be  gi\-en,  shall  fail  or 
neglect  for  five  days  to  secure  the  diseased  swine  from  the  approach 


3297  CRIMES— 77.  Animals.  Ch.  81 

or  contact  with  other  hogs  not  so  aifected,  by  penning  or  otherwise 
securing  and  effectually  isolating  them,  so  that  they  shall  not  have 
access  to  any  ditch,  canal,  branch,  creek,  river  or  other  water-course 
which  passes  beyond  the  premises  of  the  owners  of  such  swine,  he 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined 
not  exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty  days^ 

1S89,  c.  173,  s.  1;  1891,  c.  67,  ss.  1,  3;  1903,  c.  100;  1899,  c.  47. 

3298.  Contagious  diseases;  hogs  dying  with,  buried  or  burned. 

If  any  hog  or  other  animal  shall  die  with  the  hog  cholera  or  other 
infectious  disease,  and  the  owner  thereof  shall  fail  to  burn  or  to 
so  bury  the  same  as  to  secure  it  from  the  reach  or  contact  with  other 
hogs  or  other  domestic  animals  of  value,  or  if  he  shall  throw  or 
place  such  hog  or  other  animal  in  any  ditch,  canal,  branch,  creek, 
river  or  Other  water-courses  passing  beyond  his  own  premises,  he 
shall  be  guilty  of  a  misdemeanor  and  upon  conviction  shall  be  fined 
not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty  days. 
1889,  c.  173,  s.  2;  1891,  c.  67,  ss.  2,  3;  1903,  c.  106;  1899,  c.  47. 

3299.  Cruelty  to;  construed  how.  If  any  person  shall  wilfully 
overdrive,  overload,  wound,  injure,  torture,  torment,  deprive  of  nec- 
essary sustenance,  (ir  cruelly  beat,  or  needlessly  mutilate,  or  kill 
or  cause  or  procure  to  be  overdriven,  overloaded,  wounded,  injured, 
tortured,  tormented,  or  deprived  of  necessary  sustenance,  or  to  be 
cruelly  beaten,  needlessly  mutilated,  or  killed  as  aforesaid,  any  iise- 
ful  beast,  fowl  or  animal,  every  such  offender  shall  for  e\'ery  such 
offense  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be 
fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty 
days.  In  this  section,  and  in  every  law  which  may  be  enacted, 
relating  to  animals,  the  words  "animal"  and  "dumb  animal"  shall  be 
held  to  include  every  living  creature ;  the  words  "torture,"  "torment" 
or  "cruelty"  shall  be  held  to  include  every  act,  omission  or  neglect, 
whereby  unjustifiable  physical  pain,  suffering  or  death  is  caused  or 
permitted ;  but  such  terms  shall  not  be  construed  to  prohibit  lawful 
shooting  of  birds,  deer  and  other  game  for  human  food. 

Code,  ss.  2482,  2490;  1891,  c.  65;  1S81,  c.  34,  s.  1;  1881,  c.  .•?68.  ss.  1,  15. 

3300.  Cruelty  to,  instigating  or  promoting.  If  any  person  shall 

wilfully  set  on  foot,  or  instigate,  or  move  to  carry  on,  or  promote, 
or  engage  in,  or  do  any  act  towards  the  furtherance  of  any  act  of 
cruelty  to  any  animal,  he  shall  be  guilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  fined  not  more  than  fifty  dollars  or  imprisoned 
not  more  than  thirty  ilays. 

Code,  s.  2487;  1891,  c.  65;  1881,  c.  368,  s.  6. 


3301  CEIMES— 7/.  Animals.  Ch.   81 

3301.  Cruelty  to,  by  bear-baiting  and  cock-fighting.  If  any  per- 
son shall  keep,  or  use,  or  in  any  way  be  connected  with,  or  interested 
in  the  management  of,  or  shall  receive  money  for  the  admission  of 
any  person  to,  any  place  kept  or  used  for  the  purpose  of  fighting, 
or  baiting  any  bull,  bear,  dog,  cock,  or  other  animal ;  or  if  any  person 
shall  encourage,  aid  or  assist  therein,  or  shall  permit  or  suffer  any 
place  to  be  so  kept  or  used,  he  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  be  fined  not  more  than  fifty  dollars  or  impris- 
oned not  more  than  thirty  days. 

Code,  s.  2483;   1891,  c.  65;  1881,  c.  368,  s.  2. 

3302.  Conveying  in  cruel  manner.  If  any  person  shall  carry  or 
cause  to  be  carried  in  or  upon  any  vehicle,  or  other  conveyance,  any 
animal  in  a  cruel  or  inhuman  manner,  he  shall  be  guilty  of  a  mis- 
demeanor, and  upon  conviction  shall  be  fined  not  more  than  fifty 
dollars  or  imprisoned  not  more  than  thirty  days ;  and  whenever  he 
shall  be  taken  into  custody  therefor  by  any  officer,  such  officer  may 
take  charge  of  such  vehicle  or  other  conveyance  and  its  contents,  and 
deposit  the  same  in  some  safe  place  of  custody;  and  the  necessary 
expenses  which  may  be  incurred  for  taking  charge  of  and  keeping 
and  sustaining  the  same  shall  be  a  lien  thereon,  to  be  paid  before 
the  same  can  be  lawfully  reclaimed;  or  the  said  expenses,  or  any 
part  thereof  remaining  unpaid,  may  be  recovered  by  the  person 
incurring  the  same  of  the  owner  of  said  animal  in  an  action  therefor. 

Code,  s.  2486;  1891,  c.  65;  1881,  c.  368,  s.  5. 

3303.  Dogs,  female,  running  at  large.  If  any  person  owning  or 

having  any  bitch  shall  knowingly  permit  her  to  run  at  large  during 
the  erotic  stage  or  copulation  he  shall  be  guilty  of  a  misdemeanor 
and  fined  not  exceeding  fifty  dollars  or  imprisoned  not  exceeding 

thirty  days. 

Code,  s.  2501;   1862-3,  c.  41,  s.  2. 

3304.  Dogs,  sheep-killing,  to  be  killed.  If  any  person  owning  or 
having  any  dog  that  kills  sheep  or  other  domestic  animal,  upon  sat- 
isfactory evidence  of  the  same  being  made  before  any  justice  of  the 
peace  of  the  county,  and  the  owner  duly  notified  thereof,  shall  refuse 
to  kill  it,  and  shall  permit  such  dog  to  go  at  liberty,  he  shall  be 
guilty  of  a  misdemeanor,  and  fined  not  more  than  iifty  dollars  or 
imprisoned  not  more  than  thirty  days,  and  the  dog  may  be  killed  by 
any  one  if  found  going  at  large. 

Code,  s.  2500;  1862-3,  c.  41,  s.  1;  1874-5,  c.  108,  s.  2. 

3305.  Dogs,  failing  to  kill  when  mad.  If  the  o\raer  of  any  dog 

shall  know,  or  have  good  reason  to  believe,  that  his  dog,  or  any  dog 
belonging  to   any  person   under  his   control,   has  been   bitten   by   a 


3305  CRIMES—//.  Animals.  Ch.  81 

mad  dog,  and  shall  neglect  or  refuse  immediately  to  kill  the  same, 
lie  shall  forfeit  and  pay  the  sum  of  fifty  dollars  to  him  who  will 
sue  therefor ;  and  the  oifender  shall  be  liable  to  pay  all  damages 
which  may  be  sustained  by  any  one,  in  his  property  or  person,  by 
the  bite  of  any  such  dog,  and  shall  be  guilty  of  a  misdemeanor,  and 
fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty 
days. 

Code,  s.  24'J9;  R.  C.  c.  67. 

3306.  Failure  to  comply  with  law  as  to  strays.  If  any  person 

shall  fail  to  C(.)Uiply  with  any  vi  the  re(iuirL'nieuts  of  law  as  to  strays, 
he  shall  be  guilty  of  a  misdemeanor  and  upon  conviction  be  fined  not 
exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty  days. 
Note.     For  duties  as  to  strays,  see  chapter  Strays. 

3307.  False  representation  of  pedigree.   If  any  person  shall, 

with  intent  to  defraud  or  cheat,  knowingly  represent  any  animal  for 
breeding  purjioses  as  being  of  greater  degree  of  any  particular  strain 
of  blood  than  such  animal  actually  possesses,  and  by  such  representa- 
tion obtains  from  any  other  person  money  or  other  thing  of  value, 
he  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  for  each  offense  be  punished  by  a  fine  of  not  less  than  sixty 
dollars  nor  more  than  three  hundi'ed  dollars  or  by  imprisonment  for 
a  term  not  exceeding  six  months. 

1891,  c.  94,  s.  -2. 

3308.  Fraudulent  registration.  If  any  person  shall,  by  any  false 
representation  or  pretense,  with  intent  to  defraud  or  cheat,  obtain 
fi-om  any  club,  association,  society  or  company  for  the  improvement 
of  the  breed  of  cattle,  horses,  shecji,  swine,  fowls  or  other  domestic 
animals  or  birds,  a  certificate  of  registration  of  any  animal  in  the 
herd  register  of  any  such  association,  society  or  company,  or  a  trans- 
fer of  any  such  registration,  upon  conviction  thereof  he  shall  be  pun- 
ished by  imprisonment  for  a  term  not  exceeding  three  months  or  a 
fine  not  exceeding  one  hundred  dollars,  or  by  both  such  fine  and 
imprisonment. 

1891,  c.  94,  s.  1. 

3309.  Impounding  unlawfully.  If  any  person  shall  wilfully  and 
unlawfully  tole,  drixe,  ur  in  any  way  move  any  other  ])erson's  horse, 
mule,  ass,  neat  cattle,  sheep,  hog,  goat  or  dog,  from  the  range  or 
elsewhere,  into  any  stock  law  district,  or  into  the  limits  of  any 
city  or  town,  having  the  right  to  impound  or  destroy  the  same, 
with  intent  to  secure  the  poundage  or  other  penalty,  or  with  intent 
to  injure  the  owner  of  such  animal,  or  to  ro(]uire  him  to  jiay  any 


;i;J09  CKIMES— //.  Animals.  Ch.   SI 

poundage  or  ])cualty  mi  account  of  such  animal,  or  for  liire  or 
reward,  he  shall  be  guilty  of  a  misdemeanor.  If  any  person  shall 
unlawfully  and  wilfully  remove  any  animal  above  named  from  any 
lawful  enclosure,  with  intent  to  injure  the  owner,  he  shall  be  guilty 
of  a  misdemeanor. 

1895,  c.   141,  s.   1. 

3310.  Impounded,  releasing  or  receiving.  If  any  person  unlaw- 
fully receives  or  releases  any  impounded  stock,  or  unlawfully  at- 
tempts to  do  so,  he  shall  be  guilty  of  a  misdemeanor,  and  shall  be 
fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty 
days. 

Code,  s.  2819;  1889.  u.  504. 

3311.  Impounded,  to  be  fed  and  watered,   if  any  person  shall 

impound,  or  cause  to  be  impounded  in  any  pound  or  other  place,  any 
animal,  and  shall  fail  to  sxipply  to  the  same  during  such  confinement 
a  sufficient  quantity  of  good  and  wholesome  food  and  water,  he  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined  not 
more  than  fifty  dollars  or  imprisoned  not  more  than  thirty  days. 

Code,  s.  2484;  1891,  e.  65;  1881.  c.  368.  s.  3. 

3312.  Impounder  misappropriating  money.   If  any  impounder 

wilfully  misappropriates  money  that  he  may  receive  from  sale  of 
stock  impounded,  or  in  any  manner  wilfully  violates  any  provisions 
of  the  law  in  regard  thereto,  he  shall  be  guilty  of  a  misdemeanor, 
and  on  conviction  shall  be  fined  not  more  than  fifty  dollars  or  impris- 
oned not  more  than  thirty  days. 

Code,  s.  2818;    1889,  c.  .504. 

3313.  Injuries  to,  in  inclosure  without  lawful  fence.  If  any  per- 
son shall  wilfully  and  unlawfully  kill  or  abuee  any  horse,  mule,  hog, 
sheep  or  other  cattle,  the  property  of  another,  in  any  inclosure  not 
surrounded  by  a  lawful  fence,  such  person  shall  be  g'liilty  of  a  mis- 
demeanor, and  fined  or  imprisoned,  at  the  discretion  of  the  court. 

Code,  s.   1003;   1868-9,  c.  253. 

3314.  Injury  of,  in  range.  If  any  person  shall  unlawfully  and 
on  purpose  drive  any  live  ■  stock,  lawfully  running  at  large  in  the 
range,  from  said  range,  or  shall  kill,  maim,  or  injure  any  live  stock, 
lawfully  running  at  large  in  the  range  or  in  the  field  or  pasture  of 
the  owner,  whether  done  with  the  actual  intent  to  injure  the  owner, 
or  to  drive  the  stock  from  the  range,  or  any  other  unlawful  intent, 
every  such  person,  his  counselors,  aiders,  and  abettors,  shall  be  guilty 
of  a  misdemeanor.  In  the  counties  of  Graham,  Swain,  Haywood, 
Jackson  and  Transylvania  he  shall  be  guilty  of  a  felony  and  pun- 


3314  CEIMES— 77.  Animals.  CL.  81 

ished  as  if  convicted  of  larceny :  Provided,  that  nothing  herein  con- 
tained shall  prohibit  any  person  from  driving  ont"  of  the  range  any 
stock  unlawfully  brought  from  other  states  or  places.  In  any  indict- 
ment under  this  section  it  shall  not  be  necessary  to  name  in  the  bill 
or  prove  on  the  trial  the  owner  of  the  stock  maimed,  killed  or 
injured. 

Code,  s.  1002;  1885,  c.  38:5;  1887,  c.  3G8;  189.),  o.  190;  R,  C.  c.  34.  s.  104;  1850, 
c.  94,  ss.  1,  2. 

3315.  Killing  cattle  and  failing  to  show  iiide  and  ears.  If  any 

person  shall  kill  any  neat  cattle,  sheep  or  hog  in  tlie  woods  or  range, 
and  shall  for  two  days  fail  to  show  the  hide  and  ears  to  the  nearest 
justice  or  two  freeholders,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  2318;  R.  C,  c.  17,  s.  2;   1901,  c.  546. 

3316.  Killing  unmarl<ed  cattle  in  Haywood  and  Hyde  counties. 

If  any  person  not  being  the  owner  of  any  unmarked  neat  cattle,  sheep 
or  hogs,  shall  kill  any  unmarked  neat  cattle,  sheep  or  hogs  in  the 
range,  such  person  shall,  if  the  act  be  done  with  felonious  intent, 
be  guilty  of  larceny  and  punished  as  for  that  offense,  and  if  not  done 
with  such  intent  shall  be  guilty  of  a  misdemeanor:  Provided,  this 
section  shall  only  apply  to  the  countieb  of  Haywood  and  Hyde. 

1891,  c.  258;   1895,  c.  8. 

3317.  IVIisniarl<ing.  If  any  person  shall  knowingly  alter  or  de- 
face the  mark  or  brand  of  any  other  person's  horse,  mule  or  ass,  neat 
cattle,  sheep,  goat,  or  hog,  or  shall  knowingly  mismark  or  brand 
any  such  beast  that  may  be  unbranded  or  unmarked,  not  properly 
his  own,  with  intent  to  defraud  any  other  person,  the  person  so 
offending  shall  be  guilty  of  a  felony,  and  jninished  as  if  convicted 
of  larceny. 

Code,  s.  1001 ;  R.  C,  c.  34,  s.  57;  1797,  c.  48.5,  s.  2. 

3318.  Poisoning  with  shrubs.  If  any  person  shall  throw  into  or 
leave  exposed  in  any  public  square,  street,  lane,  alley,  or  open  lot 
in  any  city,  town  or  village,  or  in  any  public  road,  any  mockorange 
or  other  poisonous  shrub,  plant,  tree  or  vegetable,  he  shall  be  liable 
in  damages  to  any  person  injured  thereby  and  shall  also  be  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  be  fined  or  impriscuicd, 
at  the  discretion  of  the  court. 

1887,  e.   338. 

3319.  Stocl<  law  territory;  not  to  run  at  large  in.  If  any  jierson 

shall  allow  his  live  stock  to  run  at  large  within  the  limits  of  any 
county,  township  or  district,  in  which  a  stock  law  prevails  (U-  shall 
prevail  pursuant  to  law,  he  shall  be  guilty  of  a  misdeuicauor,  and 

980 


3319  CHIMES— 77.  Animals.  Ch.   81 

fined  not  exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty- 
days. 

Code,  s.  2811;   1889,  c.  504. 

3320.  Stock  law  territory;  wilful  driving  on  lands  of.  If  any  per- 
son, in  any  stock  law  territory,  shall  wilfully,  and  not  as  the  resiilt 
of  an  accident,  ride  any  horse  or  mule,  or  drive  any  horse  or  mule, 
either  loose  or  to  any  vehicle  or  wagon,  over  the  cultivated  or 
enclosed  lands  of  another,  he  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  be  fined  not  exceeding  ten  dollars. 

Code,  s.  2829;  1885,  c.  100;  1883,  c.  391,  ss.  1,  3. 

3321.  Stock  law  territory;  riding  or  driving  in.  If  any  person, 

by  riding  or  driving  upon  the  lands  of  another  without  permission, 
or  while  driving  live  stock  along  any  roadway,  public  or  private, 
shall  wilfully,  deliberately  or  recklessly  do  or  permit  to  be  done 
any  actual  injury  to  said  land,  or  to  the  crops  or  other  property 
growing  or  being  thereon,  he  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  be  fined  not  more  than  fifty  dollars  or  im- 
prisoned not  more  than  thirty  days.  But  no  such  offender  shall 
be  proceeded  against,  unless  the  party  injured,  or  some  one  in  his 
behalf,  shall  cause  a  warrant  to  be  issued,  or  an  indictment  to  be 
found  against  the  party  offending,  within  fifteen  days  after  the 
commission  of  the  offense. 
Code,  s.  2828;  1889,  c.  118. 

3322.  Stock  law  territory;  owner  in,  turning  outside.  If  any  per- 
son having  stock  within  the  limits  of  a  stock  law  territory,  shall  allow 
the  same  to  run  at  large  beyond  the  boundaries  of  said  territory,  he 
shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall 
be  fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than 
thirty  days:  Provided,  that  a  person  o^vning  or  renting  land  outside 
of  the  stock  law  territory  may  turn  his  stock  upon  the  said  land 
outside  of  the  stock  law  district. 

Code.  s.  2827;  1889,  c.  260;  1885,  e.  371. 

3323.  Stone-horse  running  at  large.  If  any  person  shall  let  any 

stone-horse  or  stone-nuile  of  two  years  old  or  upwards  run  at  large, 
he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  exceeding  fifty 
dollars  or  imprisoned  not  exceeding  thirty  days. 

Code,  s.  2325;  R.  C,  c.  17.  s.  6. 

III.     Banks. 

3324.  Examiner  making  false  report.   If  any  bank  examiner 

shall  knowingly  and  willingly  make  any  false  or  fraudulent  report 


332-t  .      CHi:\[ES— ///.  Banls.  Ch.   81 

of  the  condition  of  any  bank  which  shall  have  been  examined  by 
hira,  with  the  intent  to  aid  or  abet  the  officers,  owners  or  agents  of 
such  bank,  in  continuing  to  operate  an  insolvent  bank;  or  if  any 
such  examiner  shall  receive  or  accept  any  bribe  or  gratuity,  given 
for  the  purpose  of  inducing  him  not  to  file  any  report  of  an  exami- 
nation of  any  bank  made  by  him,  or  shall  neglect  to  make  an  exami- 
nation of  any  bank  by  reason  of  having  received  or  accepted  any 
bribe  or  gratuity,  he  shall  be  guilty  of  a  felony,  and  on  conviction 
thereof  shall  be  imprisoned  in  the  state's  jirison  for  not  less  than 
four  months  nor  more  than  ten  years. 

1903.  c.  275,  s.  24. 

3325.  Officers  and  agents,  malfeasance  of.  if  any  president, 

director,  cashier,  teller,  clerk  or  agent  of  any  bank  or  other  corpora- 
tion shall  embezzle,  abstract  or  wilfully  misapply  any  of  the  moneys, 
funds  or  credits  of  the  bank,  or  shall,  without  authority  from  the  di- 
rectors, issue  or  put  forth  anj'  certificate  of  deposit,  draw  any  order 
or  bill  of  exchange,  make  any  acceptance,  assign  any  note,  bond,  draft, 
bill  of  exchange,  mortgage,  judgment  or  decree,  or  make  any  false  en- 
try in  any  book,  report  or  statement  of  the  bank  with  the  intent  in 
either  case  to  injure  or  defraud  or  to  deceive  any  officer  of  the  banlv, 
or  if  any  person  shall  aid  and  abet  in  the  doing  of  any  of  these  things, 
he  shall  be  guilty  of  a  felony,  and  upon  conviction  shall  be  imprisoned 
ill  the  state's  prison  for  not  less  than  four  months  nor  more  than  fif- 
teen years,  and  likewise  fined,  at  the  discretion  of  the  court. 

190.3,  c.  27.5,  s.  1.3. 

3326.  Statements,  making  false.  If  any  person  shall  wilfully 

and  knowingly  subscribe  to,  or  make,  or  cause  to  be  made,  any  false 
statement  or  false  entry  in  the  books  of  any  bank,  corporation,  ])art- 
nerslii]),  firm  or  individual  transacting  a  banking  business,  or  shall 
knowingly  subscribe  to  or  exhibit  false  papers,  with  the  intent  to 
deceive  any  person  authorized  to  examine  into  the  affairs  of  said 
bank,  corporation,  partnership,  firm  or  individual,  or  shall  wilfully 
and  knowingly  make,  state  or  publish  any  false  statement  of  the 
amount  of  the  assets  or  liabilities  of  any  such  corporation,  partner- 
ship, firm  or  individual,  he  shall  be  giiilty  of  a  felony,  and  upon 
conviction  thereof  shall  be  imprisoned  in  the  state's  prison  not  less 
than  four  months  nor  more  than  ten  years. 
190.3,  c.  27.'),  s.  27. 

TV.      P)T'iT.r)iNr,    ,\Nn   L(i.\N    Associations. 

3327.  Agent  acting  without  license.  If  any  per.son  shall  solicit 

business  or  act  as  auciit  for  an\-  forciiiii  biiildinc;  or  loan  association 


3327        CRIMES — IV.  Building  and  Loan  Associations.        Ch.    81 

or  company  in  this  state  without  having'  procured  from  the  insurance 
commissioner  a  certificate  that  such  association  or  company  for  which 
he  offers  to  act  is  duly  licensed  by  the  state  to  do  business  for  the 
current  year  in  which  such  person  solicits  business  or  offers  to  act  as 
agent,  he  shall  be  guilty  of  a  misdemeanor. 
1895,  c.  444,  s.  3;  1905,  c.  435,  s.  18. 

3328.  Collecting  for,  not  listing  stock  for  taxes.  If  any  building 

and  loan  association  or  officer  of  such  association  doing  business  in 
this  state,  or  any  local  officer  or  person  shall  collect  dues,  assess- 
ments, premiums,  fines  or  interest  from  any  citizen  of  this  state  for 
any  such  association  which  has  failed  or  refused  to  list  for  taxation 
the  stock  held  by  citizens  of  this  state,  he  shall  be  giiilty  of  a  misde- 
meanor and  subject  to  fine  or  imprisonment,  or  both,  in  the  discre- 
tion of  the  court. 
1905,  c.  435,  s.  25. 

3329.  Failure  to  exhibit  books;  false  statement,  if  any  per- 
son having  in  his  possession  or  control  any  books,  accounts  or  papers 
of  any  building  and  loan  association  licensed  by  law,  shall  refuse  to 
exhibit  the  same  to  the  insurance  commissioner,  or  his  agents  on 
demand,  or  shall  knowingly  or  wilfully  make  any  false  statement  in 
regard  to  the  same,  he  shall  be  guilty  of  a  misdemeanor,  and  fined 
and  imprisoned,  at  the  discretion  of  the  court. 

1893,  e.  434;   1899,  c.  164. 

y.       BuECiLAEY. 

3330.  Burglary,  how  punished.  Any  person  convicted,  accord- 
ing to  due  course  of  law,  of  the  crime  of  burglary  in  the  first  degree 
shall  suffer  death,  and  any  one  so  convicted  of  burglary  in  the  sec- 
ond degree  shall  suffer  imprisonment  in  the  state's  prison  for  life,  or 
for  a  term  of  years,  in  the  discretion  of  the  coTirt. 

Code,  s.  994;  1889,  c.  434,  s.  2;  1870-1,  e.  222. 

3331.  Burglary  in  first  and  second  degrees.  There  shall  be  two 

degrees  in  the  crime  of  burglary  as  defined  at  the  common  law. 
If  the  crime  be  committed  in  a  dwelling-house,  or  in  a  room  used  as 
a  sleeping  apartment  in  any  building,  and  any  person  is  in  the 
actual  occupation  of  any  part  of  said  dwelling-hoTise  or  sleeping 
apartment  at  the  time  of  the  commission  of  said  crime,  it  shall  be 
burglary  in  the  first  degree.  If  the  said  crime  be  committed  in 
a  dwelling-house  or  sleeping  apartment  not  actually  occupied  by 
any  one  at  the  tinio  of  the  commission  of  the  crime,  or  if  it  be 
committed  in  any  house  within  the  curtilage  of  a  dwelling-house 
or  in  any  building  not   a   dwelling-house,  but  in  wliich  is   a  room 


3331  CRIMES— T.  Burglary.  Ch.   81 

used  as  a  sleeping  apartment  and  not  actually  occupied  as  such  at 
the  time  of  the  comniission  of  said  crime,  it  shall  be  burglary  in  the 
second  degree. 

1889,  c.  434,  s.  1. 

3332.  Burglary,  breaking  out  of  dwelling-house.  If  any  person 

shall  enter  the  d\i  elling-house  of  another  with  intent  to  commit 
any  felony  or  other  infamous  crime  therein,  or  being  in  such  dwell- 
ing-house, shall  commit  any  felony  or  other  infamous  crime  therein, 
and  shall,  in  either  case,  break  out  of  the  said  dwelling-house  in 
the  night  time,  such  person  shall  be  giiilty  of  burglary. 

Code,  s.  995;  R.  C,  c.  34,  s.  8;  12  Anno,  e.  7,  s.  3;  7  and  8  Geo.  IV.,  c.  29.  s.  11; 
24  and  25  Vic,  e.  96,  s.  51. 

3333.  Breal<ing  into  houses  otherwise  than  burglariously.   If 

any  jierson  shall  break  or  enter  a  dwelliug-honsc  nf  anotlii'r  other- 
wise than  by  a  burglarious  breaking;  or  shall  break  and  enter  a 
store-house,  shop,  warehouse,  banking-house,  counting-house,  or  other 
building,  where  any  merchandise,  chattel,  money,  valuable  security, 
or  other  personal  property  shall  be ;  or  shall  break  and  enter  any 
uninhabited  house,  with  intent  to  commit  a  felony  or  other  infa- 
mous crime  therein ;  every  svich  person  shall  be  guilty  of  a  felony, 
and  imprisoned  in  the  state's  prison  or  county  jail  not  less  than 
four  months,  nor  more  than  ten  years. 
Code,  s.  996;  1874-5,  c.  lUG;  1879,  c.  323. 

3334.  Burglary,  intent  to  commit.  If  any  person  shall  be  found 
by  night,  ai-med  with  any  dangerous  or  offensive  weapon,  with  the 
intent  to  break  or  enter  a  dwelling,  or  other  building  whatsoever, 
and  to  commit  a  felony  or  other  infamous  crime  therein ;  or  shall 
be  found  by  night,  having  in  his  jiossession,  without  lawful  excuse, 
any  pick-lock,  key,  bit  or  other  implement  of  house-breaking;  or 
shall  be  found  by  night  in  any  such  building,  with  intent  to  com- 
mit a  felony  or  other  infamous  crime  therein,  such  person  shall  be 
guilty  of  a  felony  and  pimished  by  fine  or  imprisonment  in  the 
state's  prison,  or  both,  in  the  discretion  of  the  court. 

Code,  s.  997 ;  24  and  25  Vic,  c  96,  s.  58. 

VI.     Burnings. 

3335.  Arson.    Any  per-son  convicted  according  to  due  course  of 

law  of  the  crime  of  arson  shall  suffer  death. 

Code,  985;  K.  C,  c  34,  s.  2;  1870-1.  c  222. 

3336.  Attempts.  If  any  iiersou  .shall  wilfully  attempt  to  burn 
any   dwelling-house,    uninliabited   house,   barn,    stable,   or   outhouse, 


3336  CEIMES— F7.  Burnings.  Ch.  81 

or  mill,  manufacturing  house,  cotton  gin,  tobacco  barn,  gTanary  or 
turpentine  distillery,  the  property  of  another,  he  shall  be  guilty  of 
a  felony,   and   punished   by   imprisonment   in  the  state's   prison  or 
county  jail,  and  may  also  be  fined,  in  the  discretion  of  the  court. 
Code,  s.  9S5,  subsec.  7;  1876-7,  e.  13. 

3337.  Bridges  and  buildings.  If  any  person,  with  intent  to  de- 
stroy the  same,  shall  wilfully  and  maliciously  set  fire  to  and  burn 
any  public  bridge,  or  private  toll  bridge,  or  the  bridge  of  any  incor- 
porated comiaany,  or  any  fire-engine  house,  or  any  house  belong- 
ing to  any  county  or  incorporated  town,  \ised  for  public  purposes 
other  than  the  keeping  of  archives,  documents  and  public  papers, 
or  any  house  belonging  to  an  incorporated  company  and  used  in 
the  business  of  such  company;  or  if  any  person  shall  wilfully 
and  maliciously  attempt  to  burn  any  of  the  said  houses  or  bridges, 
or  any  of  the  houses  or  buildings  mentioned  in  this  chapter,  the 
person  so  offending  shall  be  guilty  of  a  felony  and  punished  by 
imprisonment  in  the  state's  prison  or  county  jail,  for  not  less  than 
four  months  nor  more  than  ten  years. 

Code,  s.  985,  subsce.  4;  R.  C.  c.  34,  s.  30;  1825,  c.  1278. 

3338.  Churches  and  other  buildings.  If  any  person  shall  wan- 
tonly and  wilfully  set  fire  to  any  church,  chapel  or  meeting-house, 
or  to  any  stable,  coach  house,  outhouse,  warehouse,  office,  shop,  mill, 
barn  or  granary,  or  to  any  building  or  erection  used  in  carrying  on 
any  trade  or  manufacture,  or  any  branch  thereof,  whether  the  same 
or  any  of  them  respectively  shall  then  be  in  the  possession  oi  the 
offender,  or  in  the  possession  of  any  other  person,  he  shall  be  guilty 
of  felony,  and  imprisoned  in  the  state's  prison  for  not  less  than  two 
nor  more  than  forty  years. 

1885,  c.  66;  1903,  c.  665,  s.  2;  1874-5,  c.  228;  7  and  8  Geo.  IV..  c.  30,  s.  2;  Code, 
s.  985,  subsec.  6. 

3339.  Crops  in  field,  if  any  person  shall  wilfully  burn  or  de- 
stroy any  other  person's  corn,  cotton,  wheat,  barley,  rye,  oats,  buck- 
wheat, rice,  tobacco,  hay,  straw,  fodder,  sluicks  or  other  provender 
in  a  stack,  hill,  rick  or  pen,  or  secured  in  any  other  way  out  of 
doors,  or  grass  or  sedge  standing  on  the  land,  he  shall  be  guilty  of  a 
felony,  and  piraished  by  imprisonment  in  the  county  jail  or  state's 
prison  for  not  less  than  four  months  nor  more  than  five  years. 

1885,  c.  42;   1874-5,  c.  133;  Code,  s.  985,  subsec.  2. 

3340.  Dwelling-houses  for  fraudulent  purposes,  if  any  person 

being  the  occupant  of  any  building  used  as  a  dwelling-house,  whether 
such  person  he  the  owner  thereof  or  not,  or,  being  the  owner  of  any 
unoccupied  building  designed  or  intended  as  a  dwelling-house,  shall 


3340  CRIMES— 17.   Burnings.  Ch.   Si 

wilfully  and  wantonly  or  for  a  fraudulent  jjurpose  set  fire  to  siieli 
building,  he  shall  be  guilty  of  a  felony,  and  shall  be  punished  by 
imprisonment  in  the  state's  prison  or  county  jail,  and  may  also  be 
fined,  in  the  discretion  of  the  court. 

Code,  s.  985;  1903,  e.  665,  i?.  3. 

3341.  Gin-house,  tobacco  house  or  stable.  Every  person  con- 
victed of  anj'  wilful  burning  of  any  gin-house  or  tobacco  house,  or 
any  part  thereof,  or,  in  the  night  time,  of  any  stable  containing  a 
horse  or  a  mule,  or  cattle,  slmll  be  imprisoned  in  the  state's  prison 
not  less  than  two  nor  more  than  ten  years. 

1863,  c.  17;  18G8  9,  c.  167,  s.  5;  1903,  c.  665,  s.  1  ;  Code,  s.  985,  subsec.  2. 

3342.  Incendiary  fires,  duty  of  city  officers.   If  any  town  or 

city  officer  shall  fail,  neglect  or  refuse  to  comply  with  any  of  the 
requirements  of  the  law  in  regard  to  investigation  of  incendiary  fires, 
he  shall  be  guilty  of  a  misdemeanor  antl  may  be  fined  not  less  than 
twenty-five  nor  more  than  two  hundred  dollars. 
1899,  e.  58,  s.  5. 

3343.  Incendiary  fires,  duty  of  owner  of  premises.    If  the 

owner  or  occupant  of  any  building  or  premises  shall  fail  to  comply 
with  the  orders  of  the  chief  of  the  fire  department,  or  of  the  insur- 
ance commissioner,  he  shall  be  guilty  of  a  misdemeanor,  and  fined 
not  less  than  ten  nor  more  than  fifty  dollars  for  each  day's  neglect. 

1899,  c.  58,  s.  4, 

3344.  Public  buildings.  If  any  person  shall  wilfully  and  ma- 
liciously burn  the  state-house,  or  any  of  the  public  offices  of  the 
state,  or  any  courthouse,  jail,  arsenal,  clerk's  office,  register's  office, 
or  any  house  belonging  to  any  county  or  incorjiorated  town  in  the 
state,  or  to  any  incorporated  com])any  whatever,  in  which  are  kept 
the  archives,  documents,  or  public  papers  of  such  county,  town,  or 
corporation,  he  shall,  on  conviction,  be  imprisoned  in  the  state's 
prison  for  not  less  than  five  nor  more  than  ten  years. 

Code,  s.  985,  subsec,  3;  R.  C,  c.  34,  s.  7;  1830,  c.  41,  s.  1;  18G8-9,  o.  167,  s,  5. 

3345.  School-house.  If  any  person  shall  wilfully  set  fire  to 
any  school-house,  or  procure  the  same  to  be  done,  he  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  bo  ]uinished  by  impris- 
onment in  the  state's  prison  or  the  county  jail,  and  may  also  be  fined, 
in  the  discretion  of  the  court. 

1901,  c.  4,  s.  28. 

3346.  Woods.  If  any  jierson  .shall  set  fire  to  any  woods,  except 
it  be  his  own  property,  or,  in  that  case,  wdtbout  first  giving  notice  in 


;5346  CEIMEvS— T7.   Burnings.  Cli.   81 

writing  to  all  ])ersoiis  owning  lands  adjoining  to  the  woodlands 
intended  to  be  tired,  at  least  two  days  before  the  time  of  tiring 
such  woods,  and  also  taking  effectual  care  to  extiugnish  such  fire 
before  it  shall  reach  any  vacant  or  patented  lands  near  to  or  adjoin- 
ing the  lands  so  fired,  he  shall,  for  every  such  offense,  forfeit  and 
pay  to  any  person  who  shall  sue  for  the  same  fifty  dollars,  and  be 
liable  to  any  one  injured  in  an  action,  and  shall  moreover  be  guilty 
of  a  misdemeanor. 

Code,  ss.  52,  ri.T  ;  P,.  ('.,  c.  10,  ss.  1,  2:   1777,  c.  123.  ss.  1,  2. 

3347.  Woods,  from  camp  fires.  If  any  wagoner  or  other  person 
encamping  in  the  open  air  shall  leave  his  camp  without  totally  extin- 
guishing the  camp  fires,  he  shall  be  guilty  of  a  misdemeanor,  and 
ujion  conviction  thereof  shall  be  fined  not  exceeding  fifty  dollars,  or 
imprisoned  not  exceeding  thirty  days. 

Code,  s.  54;   1885,  e.  12G. 

VII.     Chastity. 

3348.  Carnal  knowledge  of  virtuous  girls  between  ten  and  four- 
teen years  of  age.  If  any  person  shall  unlawfully  carnally  know 
or  abuse  any  female  child  over  ten  and  under  fourteen  years  of  age, 
who  has  never  before  had  sexual  intercourse  with  any  person,  he 
shall  be  guiltj'  of  a  felony  and  fined  or  imr)risoned  in  the  state's 
prison,  in  the  discretion  of  the  court. 

1895,  c.  205. 

3349.  Crime  against  nature.  If  any  person  shall  couunit  the 
abominable  and  detestable  crime  against  nature,  with  mankind  or 
beast,  he  shall  be  imprisoned  in  the  state's  prison  not  less  than  five 
nor  more  than  sixty  years. 

Code.  s.  1010;  R.  C,  c.  34.  s.  0:  1868-9,  c.  107.  s.  6;  5  Eliz.,  e.  17;  25  Hen.  VIII., 


3350.  Fornication  and  adultery,  if  any  num  and  Avoman,  not 
being  married  to  each  other,  shall  lewdly  and  lasciviously  associate, 
bed  and  cohabit  together,  they  shall  be  guilty  of  a  misdemeanor: 
Provided,  that  the  admissions  or  confessions  of  one  shall  not  he 
received  in  evidence  against  the  other. 

Code,  s.  1041;  R.  C,  e.  34,  s.  45;   1805,  c.  684. 

3351.  Incest  between  certain  near  relatives.  In  all  cases  of  car- 
nal interc<iurs('  lu't-vccn  graudparcut  and  grandchild,  parent  and 
child,  and  brother  and  sister,  of  the  half  or  whole -blood,  the  parties 
shall  be  guilty  of  a  felony,  and  punished  for  every  such  offense  by 

Rev.  Vol.  1—50  9^*3 


3351  CRIMES— F/Z.  Chastity.  Ch.  81 

imprisonment  in  the  state's  prison  for  a  term  not  exceeding  five  years, 
in  the  discretion  of  the  conrt. 

Code,  s.  1060;   1879,  e.  16,  s.  1. 

3352.  Incest  between  uncle  and  niece,  etc.  In  all  cases  of  car- 
nal intercourse  between  nncle  and  niece,  and  nephew  and  aunt,  the 
parties  shall  be  guilty  of  a  misdemeanor,  and  punished  by  fine  or 
imprisonment,  in  the  discretion  of  the  coiirt. 

Code,  s.  1061;   1S79,  c.  16,  s.  2. 

3353.  Lewd  women  within  three  miles  of  college.  If  any  loose 

woman  or  woman  uf  ill-fame  shall  commit  any  act  of  lewdness  with 
or  in  the  presence  of  any  student,  who  is  under  twenty-one  years 
old,  of  any  boarding-school  or  college,  within  three  miles  of  such 
school  or  college,  she  shall  be  guilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  fined  not  exceeding  fifty  dollars  or  imprisoned 
not  exceeding  thirty  days.  Upon  the  trial  of  any  such  case  stu- 
dents may  be  competent  but  not  compellable  to  give  evidence.  But 
no  prosecution  shall  be  had  in  such  cases  after  the  lapse  of  six 
months. 

1880,  c.  5-23. 

3354.  Seduction.  If  any  man  shall  seduce  an  innocent  and  vir- 
tuous woman  under  promise  of  marriage  he  shall  be  guilty  of  a  fel- 
ony, and  upon  conviction  shall  be  fined  or  imprisoned  at  the  discre- 
tion of  the  court,  and  may  be  imprisoned  in  the  state's  prison  not 
exceeding  the  term  of  five  years:  Pi'ovided,  the  unsupported  testi- 
mony of  the  woman  shall  not  be  sufficient  to  convict:  Provided  fur- 
ther, that  marriage  between  the  parties  shall  be  a  bar  to  further  pros- 
ecution hereunder. 

1885.  c.  248. 


Note.     See  Crimes,  subchapter  Person. 

VIII.     Domestic  Relations. 

3355.  Abandonment  of  family  by  husband.   If  any  husband 

.shall  wilfully  abandon  his  wife  without  providing  adequate  support 
for  such  wife,  and  the  children  which  he  may  have  begotten  upon 
her,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  970;  1808  9,  c.  209,  s.  1;  1873-4,  c.  170,  s.  10;  1879,  c.  92. 

3356.  Abandonment,  evidence  of.  If  the  fact  of  abandonment 

and  failure  to  ]U-o\ide  ade(]uate  support  of  wife  and  cliildrcn  sliall  be 
proved,  or,  while  being  with  such  wife,  neglect  by  the  husband  to 
provide  for  the  adequate  support  of  such  wife  or  children,  shall  he 

994 


3356  CHIMES— TT7/.  Domestic  Relations.  Ch.   81 

proved,  then  the  fact  that  such  husband  neglects  applying  himself 
to  some  honest  calling  for  the  support  of  himself  and  family,  but 
is  found  sauntering  about,  endeavoring  to  maintain  himself  by  gam- 
ing or  other  undue  means,  or  is  a  common  frequenter  of  drinking 
houses,  or  is  a  knoAvn  common  drunkard,  shall  be  presumptive  evi- 
dence that  such  abandonment  and  neglect  is  wilful. 
Code,  s.  971;  1868-9,  c.  209,  s.  3. 

3357.  Abandonment,  failing  to  support  family.  If  any  husband, 

while  living  with  his  wife  shall  wilfully  neglect  to  provide  adequate 
support  for  such  wife  or  the  children  which  he  has  begotten  upon 
her,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  972;  1868-9,  c.  209,  s.  2;  1873-4,  c.  176,  3.  11;  1879,  c.  92. 

3358.  Abduction  of  children.  If  any  one  shall  abduct,  or  by  any 
means  induce  any  child  under  the  age  of  fourteen  years,  who  shall 
reside  with  the  father,  mother,  uncle,  aunt,  brother  or  elder  sister,  or 
shall  reside  at  a  school,  or  be  an  orphan  and  reside  with  a  guardian, 
to  leave  such  person  or  school,  he  shall  be  guilty  of  a  felony,  and 
on  conviction  shall  be  fined  or  imprisoned  in  the  state's  prison  for 
a  period  not  exceeding  fifteen  years. 

Code,  3.  973;  1879,  c.  81. 

3359.  Abduction,  conspiracy  for.  If  any  one  shall  conspire  to 
abduct,  or  by  any  means  shall  induce  any  child  under  the  age  of 
fourteen  years,  who  shall  reside  with  any  of  the  persons  designated 
in  the  preceding  section,  or  at  school,  to  leave  the  persons  afore- 
said or  the  school,  he  shall  be  guilty  of  a  like  offense,  and  on  con- 
viction shall  be  punished  as  prescribed  in  the  preceding  section: 
Provided,  that  no  one  who  may  be  a  nearer  blood  relation  to  the 
child  than  the  persons  named  in  said  section  shall  be  indicted  for 
either  of  said  offenses. 

Code,  s.  974;  1879,  e.  81,  s.  2. 

3360.  Abduction  of  married  women.  If  any  male  person  shall 
abduct  or  elope  with  the  wife  of  another  be  shall  be  guilty  of  a 
felony,  and  upon  conviction  shall  be  imprisoned  not  less  than  one 
year  nor  more  than  ten  years :  Provided,  that  the  Avonian,  since  her 
marriage,  has  been  an  innocent  and  virtuous  woman:  Provided,  that 
no  conviction  shall  be  had  upon  the  unsupported  testimony  of  any 
such  married  woman. 

1903,  c.  362. 

3361.  Bigamy.  If  any  person,  being  married,  shall  marry  any 
other  person,  during  the  life  of  the  former  husband  or  wife,  whether 
the  second  marriage  shall  have  taken  place  in  the  state  of  North 


3;J(Jl  CKkMlvS — VIII.  Domestic  lidalions.  Cli.   SI 

Carolina,  or  elsewhere,  every  such  offender,  and  every  person  coun- 
seling, aidinii'  or  abettinii-  such  offender,  shall  be  fiuilty  of  felony, 
and  imprisoned  in  the  state's  prison  or  county  jail,  for  any  term 
not  less  than  four  mimtlis  nor  more  than  ten  years;  und  an\-  such 
offense  may  be  dealt  with,  tried,  determined  and  punished  in  the 
county  where  the  offender  shall  be  apprehended,  or  be  in  custody, 
as  if  the  offense  had  been  actually  committed  in  that  county:  Pro- 
vided, that  nothing  herein  shall  extend  to  any  person  marrying  a 
second  time,  whose  husband  or  wife  shall  have  been  continually 
absent  from  such  person  for  the  space  of  seven  years  then  last 
past,  and  shall  not  have  been  -known  by  such  person  to  have  been 
living  within  that  time,  nor  shall  extend  to  any  person  who  at  the 
time  of  such  second  marriage  shall  have  been  lawfully  <livorced  from 
the  bond  of  the  first  marriage,  nor  to  any  person  whose  former  mar- 
riage shall  have  lieen  declared  void  by  the  sentence  of  any  court  of 
competent  jurisdiction. 

Code,  s.  988;  9  Geo.  IV.,  c.  31,  s.  22;  R.  C,  c.  34,  s.  15;  1790,  c.  323;  1809, 
c.  783;  1829,  c.  9. 

3362.  Children  under  twelve  not  worked  in  factories.   If  any 

mill  owner,  superintendent  or  other  person  acting  in  behalf  of  a 
factory  or  mauufact\u-ing  establishment  shall  knowingly  and  wil- 
fully employ  any  child  under  twelve  years  of  age  to  work  in  any 
factory  or  manufacturing  establishment,  except  in  oyster  canning 
and  packing  manufactories  where  said  canning  and  packing  manu- 
factories pay  for  opening  or  shucking  oysters  by  the  gallon  or  bushel, 
he  shall  be  guilty  of  a  misdemeanor. 
1903,  c.  47:i. 

3363.  Children  under  eighteen,  hours  of  labor  regulated.    If 

any  mill  owner,  suiierintcudcnt,  or  ntlicr  ])crsiiu  acting  in  behalf  of 
a  factory  or  manufactviring  establishment  shall  knowingly  and  wil- 
fully require  any  person  under  eighteen  years  of  age,  except  cngi- 

^  neers,  firemen,  machinists,  superintendents,  overseers,  section  and 
yard  hands,  office  men,  watchmen  or  rejiairers  of  break-downs,  to 
work  in  such  factories  or  establishments  a  longer  period  than  sixty- 

f  six  hours  in  one  week,  he  shall  be  guilty  of  a  misdemeaiKu-. 

1903,  e.  473,  s.  2. 

3364.  Children;  parents  misstating  age  of.    if  any  parent  or 

]ierson  stantling  in  relation  of  jiarent,  u|i<iu  hiring  his  children  to 
any  factory  or  manufacturing  establishment,  shall  fail  to  furnish 
such  establi.shment  a  written  statement  of  the  age  of  such  child  or 
children  being  so  hired,  and  if  any  such  ])arent,  or  jierson  standing 
in  the  relation  of  ])arent  to  such  child  or  cliildren  shall,  in  such  writ- 
ten  statement  misstate   the   age  of  sucli   cliild   or  chililrcu   licing  so 

99(j 


3364  CRIMES— 77/7.  Domestic  Rclaiions.  Ch.  81 

employed  he  shall  be  guilty  of  a  misdenieauor,  and  upon  conviction 
shall  be  punished  at  the  discretion  of  the  court. 

1903,  c.  473,  s.  3. 

Note.     For  exposing  children  to  contagious  diseases,  see  s.  3441. 

3365.  Enticing  servant  to  leave  master.   If  any  person  shall 

entice,  persuade  and  procure  any  servant  l)y  indenture,  or  any  ser- 
vant who  shall  have  contracted  in  -writing  or  orallv  to  serve  his  em- 
ployer, to  unlawfully  leave  the  service  of  his  master  or  emjiloyer ; 
or  if  any  person  shall  knowingly  and  imlawfully  harbor  and  detain, 
in  his  own  service  and  from  the  service  of  his  master,  or  employer, 
any  servant  who  shall  unlawfully  leave  the  service  of  such  master,  or 
employer,  then,  in  either  case,  such  person  and  servant  shall  be 
guilty  of  a  misdemeanor  and  fined  not  exceeding  one  hundred  dol- 
lars or  imprisoned  not  exceeding  six  months. 

Code,  ss.  3119,  3120;  1866,  e.  58;  1866-7,  c.  124;  1881,  c.  303. 

3366.  Landlords  and  tenants  violating  contracts,  certain  coun- 
ties. If  anv  tenant  or  cropper  shall  jirocure  advances  from  his  land- 
lord to  enable  him  to  make  a  cro]>  on  the  land  rented  by  him,  and 
then  wilfully  abandon  the  same  without  good  cause  and  before  paying 
for  such  advances ;  or  if  any  laaidlord  shall  contract  with  a  tenant  or 
cropper  by  agreeing  to  furnish  him  advances  to  enable  him  to  make 
a  crop,  and  shall  wilfully  fail  or  refuse  to  furnish  said  advances 
according  to  his  agreement  without  good  cause,  he  shall  be  giiilty  of  a 
misdemeanor  and  fined  not  exceeding  fifty  dollars  or  imprisoned  not 
exceeding  thirty  days ;  and  any  person  who  employs  a  tenant  or  crop- 
per who  has  violated  the  provisions  of  this  section,  with  knowledge 
of  such  violation,  shall  be  liable  to  the  landlord  furnishing  such  ad- 
vances for  the  amount  thereof,  and  shall  also  lie  giiilty  of  a  misde- 
meanor, and  fined  not  exceeding  fifty  dollars  or  imprisoned  not  ex- 
ceeding thirty  days.  This  section  shall  apply  to  the  following  coun- 
ties only :  AVayne,  Lenoir,  Greene,  Johnston,  Jones,  Onslow,  Craven, 
Cleveland,  Sampson,  Pitt,  Duplin,  Gates,  Cumberland,  Perquimans, 
Chowan,  Robeson,  Bladen,  Xash,  Harnett,  Edgecombe,  Hertford, 
Wilson,  Rockingham,  Pender,  Currituck,  Gaston,  IN^orthamjiton, 
Beaufort,  Chatham,  Tyrrell,  Mecklenburg,  Halifax,  Caswell,  Cam- 
den, Cabarrus,  Columbus,  Martin,  ilontgomerv  and  Washington. 

1905,  cc.  297.  .383,  44.5,  820. 

3367.  Landlords  and  tenants  violating  contracts  in  certain 

other  counties,  if  any  tenant  or  cropper  shall  procure  advances  from 
his  landlord  to  enable  him  to  make  a  crop  on  the  land  rented  by  him 
and  then  wilfully  refuse  to  cultivate  such  crops  or  wilfully  abandon 
the  same  without  good  cause  and  before  ])aying  for  such  advances;  or 
if  any  landlord  who  induces  another  to  become  tenant  or  cropper  by 


3367  CRIMES— TV//.  Domestic  Relations.  Cli.   81 

agreeing  to  furnish  him  advances  to  enable  him  to  make  a  crop,  shall 
wilfully  fail  or  refuse  to  furnish  such  advances  according  to  his  agree- 
ment without  good  cause;  or  if  any  person  shall  entice,  persuade  or 
procure  any  tenant,  lessee  or  cropjier,  who  has  made  a  contract  agree- 
ing to  cultivate  the  land  of  another,  to  abandon,  or  to  refuse  or  fail  to 
cultivate,  such  land,  or  after  notice  shall  harbor  or  detain  on  his 
own  premises,  or  on  the  premises  of  another,  any  such  tenant,  lessee 
or  cropper,  he  shall  be  guilty  of  a  misdemeanor  and  fined  not  more 
than  fifty  dollars  or  imprisoned  not  more  than  thirty  days.  Any 
person  who  employs  a  tenant  or  cropper  who  has  violated  the  provis- 
ions of  this  section  with  knowledge  of  such  violation  shall  be  liable 
to  the  landlord  furnishing  such  advances  for  the  amount  thereof. 
This  section  shall  only  apply  to  the  following  counties:  Wake,  Hyde, 
Anson,  Hertford,  Sampson,  Franklin  and  Union. 
1905,  c.  299,  ss.  1-7. 

3368.  Marriage  with  female  under  fourteen.    If  any  person 

shall  marry  a  female  under  the  age  of  fourteen  years,  he  shall  be 
guilty  of  a  misdemeanor.  • 

Code,  s.  1083;  R.  C,  e.  34,  s.  40;  1820,  c.  1041,  ss.  1,  2, 

3369.  IVIiSCegenation.  All  marriages  between  a  white  person 
and  a  negro,  or  between  a  white  person  and  a  person  of  negro  de- 
scent to  the  third  generation  inclusive,  are  forever  prohibiteu,  and 
shall  be  void.  And  any  person  violating  this  section  shall  be  guilty 
of  an  infamous  crime,  and  punished  by  imprisonment  in  the  county 
jail  or  state's  prison  not  less  than  four  months  nor  more  than  ten 
years,  and  may  also  be  fined,  in  the  discretion  of  the  court. 

Code,  s.  1084;  Const.,  Art.  XIV,  s.  8;  R.  C,  c.  C8,  s.  7;  1834,  c.  24;  1838-9,  c.  24. 

3370.  Miscegenation;  register  of  deeds;  minister;  justice.  If 

any  register  of  deeds  shall  knowingly  issue  any  license  for  mar- 
riage between  any  person  of  color  and  a  white  person ;  or  if  any 
clergjTuan,  minister  of  the  gospel,  or  justice  of  the  peace  shall 
knowingly  marry  any  such  person  of  color  to  a  white  person,  the 
person  so  offending  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  1085;  R.  C,  c.  34,  s.  80;  1830,  c.  4,  s.  2. 

3371.  Marriage  license;  obtaining,  by  false  representation.  If 

any  person  shall  obtain  a  marriage  license  for  the  uiarringe  of  per- 
sons under  the  age  of  eighteen  years  by  misrepresentation  or  false 
pretenses,  he  shall  be  guilty  of  a  misdemeanor,  and  upon  convic- 
tion shall  for  each  offense  be  fined  not  exceeding  fifty  dollars,  or 
imprisoned  not  exceeding  thirty  days-,  or  both,  at  the  discretion  of 
the  court. 
1885,  c.  340. 


3372  CHIMES— nil.  Domestic  Relations.  Ch.   81 

3372.  Marriage  ceremony;  performing,  witliout  license.  If  any 

minister  or  officer  shall  marry  any  couple  without  a  license  being 
first  delivered  to  him,  as  required  by  law,  or  after  the  expiration  of 
such  license,  or  shall  fail  to  return  such  license  to  the  register  of 
deeds  within  two  months  after  any  marriage  celebrated  by  virtue 
thereof,  with  the  certificate  appended  thereto  duly  filled  up  and 
signed,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  1817;   1S71-2,  c.  193,  s.  8 ;   E.  C,  c.  G8,  a.  5. 

3373.  Procuring  possession  of  child  unlawfully.  If  any  parent 

who  has  forfeited  his  rights  to  the  care  and  custody  of  any  child  by 
abandonment,  as  provided  by  section  one  hundred  and  eighty,  shall 
procure  the  possession  and  custodj'  of  such  child,  with  respect  to 
whom  his  or  her  rights  and  privileges  are  forfeited,  otherwise  than  as 
by  law  provided,  he  shall  be  guilty  of  the  crime  of  abduction  and  shall 
be  punished  as  for  abduction. 

1885,  c.  120,  s.  4. 

3374.  Servant,  hiring  another's.  If  any  person  shall  knowingly 
hire,  employ,  harbor  or  detain  in  his  own  service  any  servant,  em- 
ployee, or  wage  hand  of  any  other  person,  who  shall  have  contracted 
iu  writing,  or  orally,  for  a  fixed  period  of  time  to  serve  his  employer, 
and  who  shall  have  left  the  service  of  his  employer,  in  violation  of 
his  contract,  he  shall  be  guilty  of  a  misdemeanor,  and  shall  be  civilly 
liable  in  damages  to  the  party  so  aggrieved.  This  section  shall  apply 
to  the  following  counties:  Beaufort,  Edgecombe,  Person,  Pitt, 
Washington,  Warren,  Vance,  Pender,  Halifax,  Guilford,  Granville, 
Hertford,  Wayne  and  Caswell. 

1901,  c.  682;  1903,  c.  365. 

IX.     Drainagk. 

3375.  Canal  dug  under  parol  agreement,  unlawful  to  obstruct 

same.  Where  two  or  more  j^ersons  have  dug  a  canal  or  ditch  along 
any  natural  drain  or  waterway  under  parol  agreement,  or  other- 
wise, M'herein  all  the  parties  shall  have  contributed  to  the  digging 
thereof,  if  any  servient  or  lower  owner  shall  fill  up  or  obstruct  said 
canal  or  ditch  without  the  consent  of  the  higher  owners  and  without 
providing  other  drainage  for  the  higher  lands,  he  shall  be  guilty  of  a 
misdemeanor  and  be  fined  not  exceeding  fifty  dollars  or  imprisoned 
not  more  than  thirty  days. 

1899,  c.  255. 

3376.  Drain  cut  by  consent,  obstructing.   If  any  jierson  shall 

stop  or  in  any  way  obstruct  the  passage  of  the  water  in  any  ditch  or 
canal  having  been  cut  through  lands  of  any  person  by  consent  of 


3:J7fi  CRIMES— /A'.   Dniinmic  Cli.  81 

owner  of  said  land,  until  after  giving  the  interested  parties  reason- 
able time  to  comply  with  the  mode  of  proceedings  provided  for  the 
drainage  of  lowlands,  he  shall  be  gnilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  fined  not  exceeding  fifty  dollars  or  imprisoned 
not  exceeding  thirty  days. 

1891,  c.  434. 

3377.  Draining  creeks,  refusal  to  comply  with  order  of  board. 

If  any  person  shall  refuse  \n  ciiuiply  with  any  rc'i|nireHR'nls  of  a 
board  dialy  appointed  by  the  board  of  county  connnissioners  to  pro- 
vide for  the  drainage  of  any  creek,  swamp,  or  branch,  he  shall  be 
guilty  of  a  misdemeanor  and  fined  not  exceeding  two  hundred  dol- 
lars, or  imprisoned  not  exceeding  two  years. 
1887.  c.  267,  s.  7. 

3378.  Drainage  districts,  failure  to  comply  with  law;  obstruct- 
ing streams  in.  If  any  person  shall  violate  any  of  the  jirovisions  of 
law  in  reft'renee  to  drainage  districts  as  jirovided  in  chapter  eighty- 
eight,  subchapter  Drainage  Districts,  or  shall  leave  any  log,  brush, 
trash  or  other  thing  where  it  is  liable  to  wash  into  an  adjacent  stream 
and  obstruct  the  flow  of  water  or  cut  any  tree  so  as  to  fall  in  a 
stream  or  place  any  other  obstniction  in  a  stream  in  a  drainage  dis- 
trict, he  shall  be  fined  not  more  than  fifty  dollars  or  imprisoned  not 
more  than  thirty  days. 

1905,  c.  541,  ss.  7,  9. 

3379.  Draining  lowlands,  refusal  to  act  as  commissioner.   If 

any  person  having  been  duly  suuiuioued  by  the  county  surveyor  to 
act  as  a  commissioner  for  the  drainage  of  any  creek,  swamj),  branch, 
or  lowlands,  shall  refuse  to  serve,  be  shall  be  gnilty  of  a  misde- 
meanor and  fined  not  exceeding  Hfty  dollars  or  iui]iri<oneil  not 
exceeding  thi:'ty  days. 

1887,  c.  2G7,  s.  0. 

3380.  Drains,  obstructing,  when  necessary  for  mining.   If  any 

person  .shall  obstruct  any  drain  or  ditch  constructed  under  the  pro- 
visions of  the  law  in  regard  to  mines,  he  shall  be  guilty  of  a  mis- 
demeanor. 

Code,  s.  H.-iOl  ;  1871-2,  c.  158.  s.  12. 

3381.  Drains,  ditches,  dams;  obstructing  or  injuring,    ii  any 

|)erson  shall  obstruct  any  drain  or  ditch,  oi-  injure  any  ihun  (-(in- 
structed by  virtue  of  any  sj)eeial  procwdings,  as  provided  in  the 
chapter  on  JMills,  he  shall  be  guilty  of  a  niisdemeauor. 

1905,  c.  5:!4,  s.  1.  1. 

3382.  Drainways,  protection  of,  in  certain  counties,  if  any  per- 

Sfin  shall   fell   anv   tree   in   anv  ditch,   canal   or  natural   drainwav  of 


3382  CRIMES— /A'.  Drninaijr.  Ch.   81 

any  farm,  uiiloss  he  shall  remove  the  same  and  jint  such  ditch,  canal 
or  natural  drainway  in  as  good  condition  as  it  was  before  such  tree 
was  so  felled ;  or  if  any  person  shall  stop  up  or  fill  in  such  ditch,  canal 
or  drainway  and  thereby  obstruct  the  free  passage  of  water  along  the 
said  ditch,  canal  or  drainway,  unless  the  said  person  shall  first  secure 
the  written  consent  of  the  land  owner,  and  those  damaged  by  such  ob- 
struction in  said  ditch,  canal  and  drainway,  or  unless  such  person,  so 
filling  in  and  stopping  up  siich  ditch,  canal  or  drainway  shall,  upon 
the  demand  of  the  person  so  damaged,  clean  out  and  jjut  the  said 
ditch,  canal  or  drainway  in  as  good  condition  as  the  same  was  before 
such  filling  in  and  stopping  up  of  the  said  ditcli,  canal  or  drainway 
happened,  be  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
shall  be  fined  not  less  than  ten  nor  more  than  fifty  dollars,  or  impris- 
oned not  less  than  ten  nor  more  than  thirty  days. 
1901,  c.  478. 

3382a.  Sawdust  in  streams.  If  any  i)erson  shall  throw  saw- 
dust into  any  stream,  he  shall  be  guilty  of  a  misdemeanor  and  fined 
not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty  days. 
This  section  shall  apply  to  the  following  streams  only :  All  streams 
in  Pandico  county;  Drowning  creek  and  its  tributaries  in  Mont- 
gomery, iloorc,  Richmond,  (Cumberland  and  Robeson  counties;  Ban- 
ners Elk  in  Watauga  county ;  Little  river  and  its  tributaries  in  Mont- 
gomery county ;  all  streams  containing  mountain  or  brook  trout  in 
Watauga,  Cherokee,  Clay,  Macon  and  Haywood  counties;  all 
streams  in  Henderson,  Transylvania  and  Madison  counties ;  Rock 
creek  in  B\irke  county ;  all  streams  in  Yancey  county ;  McLellan's 
creek  in  Upper  Little  River  township  in  Harnett  county ;  North  and 
South  Muddy  creeks  in  McDowell  county ;  Black  river  and  its  tribu- 
taries in  Black  River  township  in  Harnett  county ;  all  streams  in 
Graham  county  except  Tennessee  river ;  and  all  creeks  and  rivers  in 
Cherokee  county;  any  stream  in  Davidson  county  (not  to  apply  to 
mills  erected  prior  to  the  eighth  day  of  February,  nineteen  hundred 
and  .five)  ;  Brushy  creek  in  Cleveland  county;  any  stream  in  Anson, 
Macon,  Swain  and  Warren ;  Wolf  Island  creek  and  its  tributaries 
above  Chandler's  mill  in  Rockingham  county ;  Clark's  creek  in 
Mount  Gilead  township  in  Montgomery  county ;  any  stream  in  Gra- 
ham, Lincoln  and  Catawba  counties ;  South  Fork  river  and  its  tribu- 
taries in  Burke  county ;  any  stream  in  Guilford  county ;  North  Fork 
of  New  river  and  its  tributaries  in  Ashe  ci unity;  Clenimons  branch 
and  Griffith's  creek  in  Forsyth  county ;  any  stream  in  ilitchcU 
county  which  now  contains  mountain  trout,  or  may  hereafter  be 
stocked  by  the  government  with  any  fish  whatever. 

1889,  c.  52;  1895  (Pr.),  c.  .327:  1897,  cc.  1,30,  285;  1899,  oc.  285,  45.3,  656;  1901, 
e.  1.58:  1903,  ec.  243,  245,  627,  711.  721,  741,  760;  1905.  cc.  139,  191,  206,  214,  238, 
247,  474,  578,  775,  776. 


3383  CRU\ES—LY.  Drainage.  Ch.  81 

3383.  Streams;  failure  of  owner  of  dam  to  keep  gates,  etc.  If 

any  OAvner  ov  kfcjier  (if  a  mill,  wlmsr  ilani  is  ai-ross  any  struani,  shall 
fail   to  build   a  gate  and  slope  therein,   or  thereafter  to  keep   and 
maintain  the  same  as  required  by  commissioners  to  lay  off  rivers 
and  creeks,  he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  3715;  1858-9,  c.  2G,  s.  4. 

X.     Elections. 

3384.  Betting  on.  If  any  person  shall  bet  or  wager  any  money 
or  other  thing  of  value  upon  any  election  held  in  this  state  he  shall 
be  guilty  of  a  misdemeanor. 

1901,  c.  89,  s.  55. 

3385.  Breaking  up;  disturbing  officers.  If  any  person  by  force 

and  violence  shall  break  up  or  stay  any  election,  by  assaulting  the 
officers  thereof,  or  depriving  them  of  the  ballot-boxes,  or  by  any 
other  means,  he  and  his  aiders  and  abettors  shall  be  guilty  of  a  mis- 
demeanor and  imprisoned  not  more  than  three  months,  and  shall  pay 
such  fine  as  the  court  shall  adjiidge,  not  exceeding  one  hundred  dol- 
lars. If  any  person  shall  interrupt  or  disturb  the  registrar  while 
actually  engaged  in  the  registration  of  voters,  or  the  registrar  or 
judges  of  election  while  engaged  in  holding  the  election,  or  in  count- 
ing and  adding  up  the  result  thereof;  or  the  board  of  county  can- 
vassers, or  the  state  board  of  canvassers,  while  engaged  in  the  dis- 
charge of  their  offidial  duties,  or  behave  in  a  disorderly  or  boisterous 
manner  in  the  presence  of  said  officers  while  so  engaged  in  the  dis- 
charge of  their  official  duties,  or  obstruct  such  officers  in  the  legal 
discharge  of  the  duties  of  their  several  positions,  he  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  be  fined  not  more  than 
fifty  dollars  or  imprisoned  not  more  than  thirty  days. 
1901,  c.  89,  s.  51. 

3386.  Bribery  of  voters.  If  any  person  shall  at  any  time  before 
or  after  an  election,  gi\e  or  promise  to  give  any  money,  property,  or 
reward  to  any  elector  in  order  to  secure  his  vote,  lie  shall  be  guilty 
of  a  misdemeanor;  and  any  person  who  shall  receive  or  agree  to 
receive  any  such  bribe  shall  also  be  guilty  of  a  misdemeanor. 

1901,  e.  89,  s.  .54. 

3387.  Discharging  employee  on  account  of  vote,  if  any  person 

shall  discharge  from  emiiloyment,  or  otherwise  injure,  threaten,  op- 
press or  attempt  to  intimidate  any  qualified  voter  of  this  state  because 
of  the  vote  such  voter  may  or  may  not  have  cast  in  any  election,  he 
shall  be  guilty  of  a  misdemeanor. 
1901,  c.  89,  s.  53. 

1002 


3388  CKIilES— Z.  Electioiu.  Ch.  81 

3388.  Felon  voting.  If  any  person  be  challenged  as  being  con- 
victed of  any  crime  which  excludes  him  from  the  right  of  suffrage, 
he  shall  be  required  to  answer  any  question  in  relation  to  such 
alleged  conviction;  but  his  answer  to  such  questions  shall  not  be 
used  against  him  in  any  criminal  prosecution,  but  if  any  person  so 
convicted  shall  vote  at  the  election,  w^ithout  having  been  restored 
to  the  right  of  citizenship,  he  shall  be  guilty  of  a  felony  and  pun- 
ished by  a  fine  not  exceeding  one  thousand  dollars,  or  imprisoned  in 
the  state's  prison  not  exceeding  two  years,  or  both. 

1901,  c.  89,  s.  71. 

3389.  Liquor,  giving  away  or  selling  at.   If  any  person  shall 

give  away  or  shall  sell  any  intoxicating  liquor,  except  for  medical 
purposes  and  upon  the  prescription  of  a  practicing  physician,  at 
any  place  within  five  miles  of  the  polling  place,  at  any  time  within 
twelve  hours  next  preceding  or  svicceeding  any  public  election, 
whether  general,  local  or  municipal,  or  during  the  holding  thereof, 
he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than  one  hun- 
dred nor  more  than  one  thousand  dollars. 
1901,  c.  89,  s.  76;   1905.  c.  531. 

3390.  Oath,  corruptly  taking.  If  any  person  shall  corruptly  take 
the  oath  prescribed  for  voters,  he  shall  be  gaiilty  of  perjury,  and  be 
fined  not  less  than  five  hundred  dollars  nor  more  than  one  thousand 
dollars,  and  be  imprisoned  in  the  state's  prison  not  less  than  two 
nor  more  than  five  years. 

1901,  c.  89,  s.  49. 

3391.  Officer  failing  to  discharge  duty,  if  any  chairman  of  the 

county  board  of  elections,  or  other  returning  ofiicer  whatever,  shall 
wilfully,  or  of  malice,  neglect  to  i)erforni  any  duty,  act,  matter  or 
thing  required  or  directed  in  the  time,  manner  and  form  in  which 
such  duty,  act,  manner  or  thing  is  required  to  be  performed  in  rela- 
tion to  the  election,  and  returns  thereof,  of  the  governor,  representa- 
tives in  Congress,  of  justices  of  the  supreme  court,  of  judges  of  the 
superior  court,  of  solicitors,  or  of  electors  for  president  and  vice- 
president  of  the  United  States,  or  other  officers,  the  person  so  offend- 
ing shall  be  guilty  of  a  felony,  and  fined  not  less  than  one  thousand 
nor  more  than  five  thoiisand  dollars,  and  be  imprisoned  not  less 
than  one  nor  more  than  three  years. 
1901,  c.  89,  s.  47. 

3392.  Permanent  registration;  taking  false  oath.  If  any  per- 
son shall  knowingly  register  under  the  permanent  registration  law 
who  is  not  qualified  within  the  meaning  of  said  law,  and  article  six, 
section  four,  of  the  constitution,  or  if  any  person  shall  knowingly 


3392  CRIMES— A'.  Electioi^s.  Ch.   81 

take  any  false  oath  in  registering  under  the  same,  he  shall  be  guilty 
of  a  misdemeanor,  and  ujion  conviction  shall  l)e  fined  not  more  than 
one  thousand  dollars  or  imprisoned  not  more  than  five  years. 
1901,  c.  550,  s.  12. 

3393.  Permanent  registration,  officer  failing  to  discharge  duty. 

If  any  officer  charged  with  any  duty  under  tiie  permanent  registra- 
tion law  wilfully  fails  and  neglects  to  perform  the  same,  he  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  forfeit  his 
office  and  be  fined  not  more  than  one  thousand  dollars  or  imprisoned 
not  more  than  five  years. 

1901,  c.  550,  s.  11. 

3394.  Registering  or  voting  at  more  than  one  box.  if  any  per- 
son shall,  with  intent  to  commit  a  fraud,  register  or  vote  at  more 
than  one  box  or  more  than  one  time,  or  shall  induce  another  to  do 
so,  or  if  any  person  shall  illegally  vote  at  any  election,  he  shall  be 
guilty  of  a  felony  and  be  imprisoned  in  the  state's  prison  not  less 
than  six  nor  more  than  tweh'e  months,  or  fined  not  less  than  one 
hundred  nor  more  than  five  hundred  dollars,  at  the  discretion  of 
the  court,  and  if  any  registrar  of  voters,  or  any  clerk  or  copyist, 
shall  make  any  entry  or  copy  with  intent  to  commit  a  fraud,  he 
shall  be  guilty  of  a  like  offense. 

1901,  e.  89,  s.  48. 

3395.  Registering  unlawfully.    If  any  person  shall  cause  or  pro- 
"cure  his  name  to  be  registered  in  more  than  one  election  ward  or 

precinct,  or  shall  cause  or  procure  his  name,  or  that  oi  any  other 
person,  to  be  registered,  who  is  not  entitled  to  vdic  in  the  ward  or 
election  precinct  wherein  such  registration  is  made,  or  shall  falsely 
personate  any  registered  voter,  he  shall  be  guilty  of  a  felom',  and 
shall  be  punished  for  every  such  offense  by  a  fine  not  exceeding  one 
thousand  dollars,  or  imprisoned  in  the  state's  prison  not  exceeding 
tW'O  years,  or  both,  in  the  discretion  of  the  court. 
1901,  c.  89,  s.  70. 

3396.  Returns,  failure  to  make.  If  any  registrar  or  judge  of 
election,  or  any  county  canvasser  or  commissioner,  register  of  deeds, 
clerk  or  chairman  of  county  board  of  elections  shall  fail  to  make  the 
returns  and  perform  the  duties  required  of  him,  he  shall  be  fined 
not  less  than  five  hundred  dollars,  or  imjirisoned  not  more  than  six 
months  nor  less  than  two  months,  at  the  discretion  of  the  court. 

1901,  c.  89,  s.  40. 

3397.  Returns,  making  false.  If  any  ])ers,,ii  siiali  make.  <ir  cer- 
tif\',   iir  deliver,   or   ti'ansmit   a   false   return   of  an   election   held    in 


3397  CRIMES— Z.  Elections.  Ch.   81 

this  state,  nr  make  any  erasure  or  alteration  in  the  poll  Itooks,  lie 
shall  be  guilty  of  a  felony  and  imprisoned  in  the  state's  prison  not 
less. than  one  year,  and  shall,  in  addition,  forfeit  and  pay  five  hun- 
di'ed  dollars,  one-half  to  the  use  of  the  person  who  shall  sue  for  the 
same,  and  the  other  half  to  the  use  of  the  state. 
1901,  e.  89,  s.  83. 

3398.  Returns,  copy  of;  refusal.  If  any  register  of  deeds  or 
clerk  of  the  suijerior  court  shall  refuse  to  make  and  give  to  any  per- 
son a  duly  certified  copy  of  the  returns  of  any  election,  or  of  a  tabu- 
lated statement  of  any  election,  the  returns  of  which  are  by  law 
deposited  in  his  office,  upon  the  tender  of  the  fees  therefor,  he  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  dismissed  from 
office  and  imprisoned  for  one  year. 

1901,  c.  89,  s.  83. 

3399.  Removal,  officer  acting  after.    If  any  member  of  the 

county  board  of  elections,  or  any  registrar  or  judge  of  election,  after 
having  been  removed  as  provided  by  law,  and  notified  thereof,  shall 
continue  to  exercise  the  duties  of  the  ])Osition  from  which  he  has 
been  removed,  he  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction shall  be  fined  or  imprisoned  at  the  discretion  of  the  court. 
1901,  c.  89,  s.  10. 

3400.  Taxes,  sheriff  to  furnish  list  of.  if  any  sherifi^  or  tax  col- 
lector shall  fail,  between  the  first  day  of  ]\Iay  and  the  tenth  day  of 
May  of  any  year  in  which  a  general  election  occurs,  to  certify  to  the 
clerk  of  the  superior  court  of  his  county  a  list  of  all  persons  who 
have  paid  their  poll  tax  for  the  previous  year,  he  shall  be  guilty  of  a 
misdemeanor. 

1901,  c.  89,  s.  13. 

3401.  Taxation,  false  certificate  of  exemption  from.   If  any 

person  shall  wilfully  and  kmiwinnly  jireseut  t<i  any  election  officer 
any  false  certificate  of  exem])tion  from  taxatiun  he  shall  be  guilty 
of  forgery. 

1901,  c.  89,  s.  13. 

3402.  Tax  receipt  given  without  payment.  If  any  tax  collectdr 

or  sheriff  shall  wilfully  fail  to  give  a  tax  receipt  to  any  person  pay- 
ing his  ])oll  tax,  or  shall  falsely  date  any  tax  receipt  or  duplicate 
thereof,  he  shall  be  guilty  of  a  misdemeanor,  and  pimishcd  in   tlie 
discretion  of  the  court. 
1901,  c.  89,  s.  13. 


3403  CRIMES— Z7.  Embezzlement.  Ch.  81 

XL     Embezzlement. 

3403.  By  railroad  officers.  If  any  president,  secretary,  treas- 
urer, director,  engineer,  agent  or  other  officer  of  any  railroad  com- 
pany shall  embezzle  any  moneys,  bonds,  or  other  valuable  funds 
or  securities,  with  which  such  president,  secretary,  treasurer,  direc- 
tor, engineer,  agent,  or  other  officer  shall  be  charged  by  virtue  of 
his  office  or  agency,  or  shall  in  any  way,  directly  or  indirectly,  apply 
or  appropriate  the  same,  for  the  use  or  benefit  of  himself,  or  any 
other  person,  state,  or  corporation,  other  than  the  company  of  which 
he  is  president,  secretary,  treasurer,  director,  engineer,  agent  or 
other  officer,  for  every  such  offense  the  person  so  offending  shall 
be  guilty  of  a  felony,  and  on  conviction  in  the  superior  or  criminal 
court  of  any  county  through  which  the  railroad  of  such  company 
shall  pass,  shall  be  imprisoned  in  the  state's  prison  not  less  than 
three  nor  more  than  ten  years,  and  fined  not  less  than  one  thousand 
nor  more  than  ten  thousand  dollars. 

Code,  s.  1018;  1870-1,  e.  103,  s.  1. 

3404.  Conspiracy  for.  If  any  person  shall  agi-ee,  combine,  col- 
lude, or  conspire  with  the  president,  secretai'y,  treasurer,  director, 
engineer  or  agent  of  any  railroad  company,  to  commit  any  offense 
specified  in  the  preceding  section,  such  person  so  offending  shall  be 
guilty  of  felony,  and  on  conviction  in  the  superior  or  criminal  court 
of  a  county  through  which  the  railroad  of  any  company  against 
which  such  offense  may  be  perpetrated  passes,  shall  be  imprisoned 
in  the  state's  prison  for  not  less  than  three  nor  more  than  ten  years, 
and  fined  not  less  than  one  thousand  nor  more  than  ten  thousand 
dollars. 

Code,  s.  1019;  1870-1,  c.  103,  a.  2. 

3405.  Partner,  surviving,  converting  assets.  If  any  surviving 

partner  shall  wilfully  and  intentionally  convert  any  of  the  property, 
money  or  effects  belonging  to  the  partnership  to  his  own  use,  and 
refuse  to  account  for  the  same  on  settlement,  he  shall  be  guilty  of  a 
felony,  and  upon  conviction  shall  bo  punished  by  fine  or  imprison- 
ment in  the  state's  prison  in  the  discretion  of  the  court. 

1901,  e.  640,  g.  9. 

3406.  Property  in  possession  by  virtue  of  office  or  employ- 
ment. If  any  person  exercising  a  ]uiblic  trust  or  holding  a  piiblic 
office,  or  any  guardian,  administrator,  or  executor,  or  any  officer  or 
agent  of  a  corporation,  or  any  agent,  consignee,  clerk  or  servant 
(except  apprentices,  and  other  persons  under  the  age  of  sixteen 
years)   of  any  person,  shall  embezzle  or  fraudulently  or  knowingly 


3406  CRIMES— Z/.  Embezzlevient.  Ch.   SI 

and  wilfully  misapply  or  convert  to  his  own  use,  or  shall  take,  make 
way  with  or  secrete,  with  intent  to  embezzle  or  fraudulently  or  know- 
ingly and  wilfully  misapply  or  convert  to  his  own  use  any  money, 
goods  or  other  chattels,  bank  note,  check  or  order  for  the  payment 
of  money  issued  by  or  drawn  on  any  bank  or  other  corporation,  or 
any  treasury  warrant,  treasury  note,  bond  or  obligation  for  the  pay- 
ment of  money  issued  by  the  United  States  or  by  any  state,  or  any 
other  valuable  security  whatsoever  belonging  to  any  other  person 
or  corporation,  which  shall  have  come  into  his  possession  or  under 
his  care,  he  shall  be  giiilty  of  felony,  and  punished  as  in  cases  of 
larceny. 

Code,  9.  1014;  1889,  c.  226;  1891,  o.  188;  1897,  c.  31;  1871-2,  c.  145,  s.  2; 
21  Hen.  VII.,  e.  7 ;  39  Geo.  III.,  c.  85 ;  7  and  8  Geo.  IV.,  c.  39,  s.  47 ;  24  and  25 
Vic,  c.  96,  s.  68. 

3407.  State's  bonds  and  securities  by  officer.  If  any  officer, 

agent  or  employee  of  the  state,  or  other  person  having  or  holding  in 
trust  for  the  same  any  bonds  issued  by  said  state,  or  any  security,  or 
other  property  and  effects  of  the  same,  shall  embezzle  or  knowingly 
and  wilfully  misapply  or  convert  the  same  to  his  own  use,  or  other- 
wise wilfully  or  corruptly  abuse  the  said  trust,  such  offender  and  all 
persons  aiding  and  abetting,  or  otherwise  assisting  therein,  shall  be 
guilty  of  a  felony,  and  fined  not  less  than  ten  thousand  dollars,  or 
imprisoned  in  the  state's  prison  not  less  than  twenty  years,  or  both, 
at  the  discretion  of  the  court. 
Code,  s.  1015;  1874-5,  o.  52. 

3408.  Trust  funds  by  officers.  If  any  officer,  agent,  or  em]3loyee 
of  any  city,  county,  or  incorporated  town,  or  of  any  penal,  charita- 
ble, religious  or  educational  institution ;  or  if  any  person  having 
01-  holding  any  moneys  or  property  in  trust  for  any  city,  county, 
incorporated  town,  penal,  charitable,  religious  or  educational  insti- 
tution, shall  embezzle  or  otherwise  wilfully  and  corruptly  use  or 
misapply  the  same  for  any  purpose  other  tlian  that  for  which  such 
moneys  or  property  is  held,  such  person  shall  be  guilty  of  felony, 
and  fined  and  imprisoned  in  the  state's  prison  in  the  discretion  of 
the  court.  If  any  clerk  of  the  superior  court,  any  sheriil,  treas- 
urer, register  of  deeds  or  other  public  officer  of  any  county  or 
town  of  the  state  shall  embezzle  or  wrongfully  convert  to  his  OAvn 
use,  or  corruptly  use,  or  shall  misapply  for  any  purpose  other 
than  that  for  which  the  same  are  held,  or  shall  fail  to  pay  ovCr 
and  deliver  to  the  proper  persons  entitled  to  receive  the  same 
when  lawfully  required  so  to  do,  any  moneys,  funds,  securities  or 
other  property  which  such  officer  shall  have  received  by  virtue  or 
color  of  his  office  in  trust  for  any  person  or  corporation,  s.uch  officer 
shall  be  guilty  of  a  felony.     The  provisions  of  this  section  shall 


3408  CRIMES— A7.  Embezzlement.  Cli.  81 

apply  to  all  persons  who  shall  go  out  of  office  and  fail  or  neglect 
to  account  to  or  deliver  over  to  their  successor  in  office  or  otiier 
persons  lawfully  entitled  to  receive  the  same  all  such  moneys,  funds 
and  securities  or  property  aforesaid.  The  punishment  shall  be 
imprisonment  in  the  state's  prison  or  county  jail,  or  line,  in  the  dis- 
cretion of  the  court. 

Code.  s.  1010;   1891,  c.  241:   1870-7,  c.  47. 

3409.  Treasurer  of  benevolent  society.    If  any  treasurer  or 

other  iinaucial  officer  of  auy  benevolent  or  religious  institution, 
society  or  congregation  shall  lend  any  of  the  moneys  coming  into 
his  hands  to  any  other  person  or  association  without  the  consent  of 
the  institution,  association  or  congregation,  to  whom  such  mf)nevs 
belong ;  or,  if  he  shall  fail  to  account  for  such  moneys  when  called 
on,  he  shall  be  guilty  of  a  misdemeanor,  and  punished  by  fine  or 
imprisonment,  or  both,  in  the  discretion  of  the  court. 
Code,  s.  1017;  1879,  c.  105. 

3410.  Taxes.  If  any  officer  appropriates  to  his  own  use  the 
state,  county,  .school,  city  or  town  taxes,  he  .shall  be  guilty  of  embez- 
zlement, and  may  be  punished  not  exceeding  five  years  in  the  state's 
prison,  at  the  discretion  of  the  court. 

Code.  s.  3705;   1883,  e.  130,  s.  49. 

XII.     Fences. 

341 1.  In  stock  law  territory.  If  any  person,  wilfully  tears  down, 
or  in  any  mauucr  breaks  a  fence  or  gate,  or  leaves  open  a  gate  erected 
around  a  stock  law  territory,  or  Avilfully  breaks  any  enclosure  within 
any  township,  district  or  county  A\'here  a  stock  law  is  in  force,  and 
wherein  any  stock  is  confined,  so  that  the  same  may  esca])e  there- 
from, he  shall  be  guilty  of  a  misdemeanor,  and  shall  be  fined  not 
more  than  fifty  dollars  or  imprisoned  not  more  than  thirty  days. 

Code,  s.  2820;  1889,  c.  504. 

3412.  Removal  of  common,  if  any  person  owning,  occupying. 
ciiltivating  or  lieing  in  ]iiissessiou  uf  any  lands  under  a  common 
fence  protecting  the  lands,  crops  or  property  of  others,  .shall  remove 
such  fence  or  any  part  thereof  during  the  time  in  which  any  crops 
are  growing  or  being  actually  cultivated  thereon,  or  property  is  pro- 
tected by  Hucli  fence,  and  before  such  crops  are  harvested,  without 
the  consent  and  permission  of  such  person  or  persons  whose  crop 
oi-  projierty  is  protected  by  such  common  fence,  he  shall  he  guilty  of 
a  misdemeanor  and  upon  conviction  shall  be  fined  not  exceeding 
fifty   dollars   or    imprisoned    not   exceeding    (iiirty    days:    Provided, 


3412  CEIMES— Z7/.  Fences.  Ch.  81 

that  the  provisions  of  this  section  shall  not  apply  when  ninety  days' 
notice  of  such  removal  shall  have  been  given  to  all  persons  owning, 
cultivating  or  in  possession  of  lands  surrounded  by  such  common 
fence,  or  having  property  protected  thereby,  and  when  thereafter 
such  fence  shall  be  removed  between  the  first  day  of  January  and 
the  first  day  of  March  following  such  notice  of  intended  removal. 
Code,  s.  2820;  1903,  c.  20. 

3413.  Wire,  destroying.  If  any  person  shall  wilfully  destroy, 
cut  or  injure  any  ])art  of  a  wire  fence  or  a  fence  composed  partly 
of  wire  and  partly  of  wood  situated  on  the  land  of  another,  he  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  impris- 
oned not  exceeding  thirty  days  or  fined  not  exceeding  fifty  dollars. 

1889,  c.  516. 


Note.     For  other  offenses  relating  to  stock  law,  see  infra,  siibfliapter  Animals. 
XIII.      Fishing. 

3414.  Fisheries,  injury  to.  If  any  person  shall  wilfully  destroy 
or  injure  any  platform  or  structure  on  any  land  covered  by  naviga- 
ble waters,  which  land  has  been  duly  entered  and  granted  and  over 
which  the  owner  has,  according  to  law,  acquired  a  prior  right  of 
fishery,  or  shall  interfere  with  or  molest  the  owner  in  the  use  thereof 
or  of  said  prior  right  of  fishery,  he  shall  be  guilty  of  a  misde- 
meanoi'. 

Code,  s.  2753;  1874-5,  c.  183,  ss.  2-4. 

3415.  Injuring  platforms  erected  for.  If  any  person  shall  wil- 
fully destroy  or  injure  any  platform  or  structure  erected  in  any 
navigable  water  by  the  owner  of  the  adjoining  land  for  the  purpose 
of  drawing  or  hauling  nets  or  seines  thereon,  or  shall  interfere  with 
or  molest  the  owner  in  the  use  of  any  such  lands,  he  shall  be  guilty 
of  a  misdemeanor. 

Code,  s.  2753;  1874-5,  ss.  2-4. 

3416.  In  Cape  Fear  by  nonresidents.  If  any  person  who  is  a 

nonresident  of  the  state  shall  catch  fish,   for  marketable  purposes, 
in  the  waters  of  the  Cape  Fear  river,  or  any  of  its  tributaries,  he 
shall   be   guilty   of   a   misdemeanor,    and    upon   conviction   shall   be 
fined  or  imprisoned  at  the  discretion  of  the  court. 
1895,  c.  230. 

3417.  Poisoning  streams  to  kill  fish.  If  any  person  shall  put 

any   poisonous   substance   for   the   purpose  of  catching,    killing  or 
Rev.  Vol.  1—60  1009 


3417  CRIMES— A77/.  Fishing.  Ch.  81 

driving  off  any  fisli  in  any  of  the  waters  of  a  creek  or  river,  he  shall 

be  guilty  of  a  misdemeanor. 

Code,  s.  1094;  18S3,  c.  290. 

3418.   Trout;  catching,  with  seines;  shooting,   if  any  person 

shall  catch  mountain  trout  by  seining  at  any  time,  or  shall  take 
them  by  shooting  or  otherwise  between  the  fifteenth  day  of  October 
and  the  thirtieth  day  of  December,  he  shall  be  guilty  of  a  misde- 
meanor. 

Code,  s.  1122;  1809-70,  c.  142. 


Note.     For  other  crimes  relating  to  fishing,  see  chapter  03'sters  and  Fish. 
XIY.     Forgery. 

3419.  Bank-note,  Checl<,  etc.  if  any  ]ierson  shall  falsely  make, 
forge  or  counterfeit,  or  cause  or  ]irncure  tlie  same  to  Ix?  done,  or  will- 
ingly aid  or  assist  therein,  any  bill  or  note  in  imitation  of,  or  ])ur- 
porting  to  be,  a  bill  or  note  of  any  incorporated  bank  in  this  state, 
or  in  any  of  the  Ignited  States,  or  in  any  of  the  territories  of  tlie 
United  States;  or  any  order  or  check  on  any  such  bank  or  cor])o- 
ration,  or  on  the  cashier  thereof ;  or  any  of  the  securities  purport- 
ing to  be  issued  by  or  on  behalf  of  the  state,  or  by  or  on  behalf  of 
any  corporation,  with  intent  to  injure  or  defraud  any  person,  bank 
or  corporation,  or  the  state,  the  person  so  offending  shall  be  guilty 
of  felony  and  punished  by  imprisonment  in  the  state's  prison  or 
county  jail  not  less  than  four  months  nor  more  than  ten  years,  or 
fined  in  the  discretion  of  the  court. 

Code,  s.  1030;  R.  C,  c.  34,  s.  60;  1819,  c.  994,  s.  1. 

3420.  Banl<-notes,  connecting  different  parts  of.  If  any  per- 
son sluill  frau<lu]cnt]y  connect  together  different  parts  of  two  or 
more  bank-notes,  or  other  genuine  instruments,  in  such  a  manner  as 
to  produce  another  note  or  instrument,  with  intent  to  pass  all  of 
them  as  genuine,  the  same  shall  be  deemed  a  forgery,  and  the  instru- 
ment so  produced  a  forged  note,  or  forged  instrument,  in  like  man- 
ner as  if  each  of  them  had  been  falsely  made  or  forgecl. 

Code,  s.  1037;  R.  C,  c.  34,  s.  66. 

3421.  Certificates  of  stock  by  officer  of  corporation.   If  any 

officer  or  agent  of  a  corporation  shall,  falsely  and  with  a  fraudu- 
lent purpose,  make,  with  the  intent  that  the  same  shall  be  issiied 
and  delivered  to  any  other  person  by  name  or  as  holder  or  bearer 
thereof,  any  certificate  or  other  writing,  whereby  it  is  certified  or 
declared  that  such  person,  or  holder,  or  bearer,  is  entitled  to  or 
has  interest  in  the  stock  of  such  cor]ioration,  when  in  fact  such  per- 


3421  CEIMES— X77.  Forgery.  Ch.   «1 

son,  holder,  or  bearer,  is  not  so  entitled,  or  is  not  entitled  to  the 
amount  of  stock  in  such  certificate  or  writing  specified;  or  if  any 
officer  or  agent  of  such  corporation,  or  other  person,  knowing  such 
certificate  or  other  writing  to  be  false  or  untrue,  shall  transfer,  as- 
sign, or  deliver  the  same  to  another  person,  for  the  sake  of  gain, 
or  Avith  the  intent  to  defraud  the  corporation,  or  any  member  thereof, 
or  such  person  to  whom  the  same  shall  be  transferred,  assigned  or  de- 
livered, the  person  so  ofl:'ending  shall  be  imprisoned  in  the  coimty 
jail  or  state's  prison  not  less  than  four  months  nor  more  than  ten 
years. 

^Code,  s.  1032;  R.  C,  c.  34,  s.  62. 

.  3422.  Counterfeiting  coin.  If  any  person  shall  falsely  make, 
forge,  or  counterfeit,  or  cause  or  procure  to  be  falsely  made,  forged, 
or  counterfeited,  or  willingly  aid  or  assist  in  falsely  making,  forg- 
ing, or  counterfeiting  the  resemblance  or  similitude  or  likeness  of 
a  Spanish  milled  dollar,  or  any  coin  of  gold  or  silver,  which  is  in 
common  use  and  received  in  the  discharge  of  contracts  by  the  citi- 
zens of  the  state ;  or  shall  pass,  utter,  publish,  or  sell,  or  attempt  to 
pass,  utter,  publish,  or  sell,  or  bring  into  the  state  from  any  other 
place,  with  intent  to  pass,  utter,  publish,  or  sell  as  true,  any  such 
false,  forged,  or  counterfeited  coin,  knowing  the  same  to  be  false, 
forged  or  counterfeited,  with  intent  to  defraud  any  person  what- 
soever, every  person  so  offending  shall  be  guilty  of  a  felony,  and 
punished  by  imprisonment  in  the  state's  prison  or  county  Jail  for 
not  less  than  four  months  noT  more  than  ten  years. 
Code,  s.  1035;  R.  C,  c.  34,  s.  64;  1811,  c.  814,  s.  3. 

3423.  Counterfeiting,  possession  of  tools  for.   If  any  person 

sliall  have  in  his  possession  any  instrument  for  the  purpose  of  mak- 
ing any  coTinterfeit  similitude  or  likeness  of  a  Spanish  milled  dol- 
lar, or  other  coin  made  of  gold  or  silver,  which  is  in  common  use 
and  received  in  discharge  of  contracts  by  the  citizens  of  the  state 
and  shall  be  duly  convicted  thereof,  the  person  so  offending  shall  be 
imprisoned  in  the  state's  prison  or  county  jail  not  less  than  four 
mouths  nor  more  than  ten  years,  or  be  fined  not  more  than  five  hun- 
dred dollars. 

Code,  s.  1036;  R.  C,  c.  34,  s.  65;  1811,  e.  814.  s.  4. 

3424,  Deeds  and  other  papers.    If  any  person,  of  his  own  head 

and  imagiuatiiiu,  or  by  fal^'e  conspiracy  or  fraud  with  others,  shall 
wittingly  and  falsely  forge  and  make,  or  shall  cause  or  wittingly 
assent  to  be  forged  or  made,  or  shall  show  forth  in  evidence,  know- 
ing the  same  to  be  forged,  any  deed,  lease  or  will,  or  any  bond, 
\vriting    obligatory,    bill    of    exchange,    promissory    note,    endorse- 


3424  CRIMES— X/F.  Forgery.  Ch.   81 

ment  or  assignment  thereof;  or  any  acquittance,  or  receipt  for 
money  or  goods ;  or  any  receipt,  or  release  for  any  bond,  note, 
bill,  or  any  other  security  for  the  pajTnent  of  money ;  or  any 
order  for  the  payment  of  money  or  delivery  of  goods,  with  intent, 
in  any  of  said  instances,  to  defraud  any  person  or  corporation, 
and  thereof  shall  be  duly  convicted,  the  person  so  ofFending  shall 
be  punished  by  imprisonment  in  the  state's  prison  or  county  jail 
not  less  than  four  months  nor  more  than  ten  years,  or  fined  in  the 
discretion  of  the  court. 

Code,  s.  1029;  R.  C,  c.  34,  s.  59;  1801,  c.  572;  5  Eliz.,  c.  14,  ss.  2.  3;  21  James 
I.,  c.  26   (A.  D.  1623). 

3425.  Judgments,  securities,  etc.,  selling  same,  if  any  person 

shall  sell,  by  delivery,  indorsement,  or  otherwise,  to  any  other  per- 
son, any  judgment  for  the  recovery  of  money  purporting  to  have 
been  rendered  by  a  justice  of  the  peace,  or  any  bond,  promissory 
note,  bill  of  exchange,  order,  draft,  or  liquidated  account  jnirport- 
ing  to  be  signed  by  the  debtor  (knowing  the  same  to  be  forged), 
the  person  so  offending  shall  be  punished  by  imprisonment  in  the 
state's  prison  or  county  jail  for  not  less  than  four  months  nor  more 
than  ten  years. 

Code,  s.  1033;  R.  C,  c.  34,  s.  63. 

3426.  Names  to  petitions;  using  such  petitions.  If  any  person 

shall  wilfully  sign,  or  cause  to  be  signed,  or  wilfully  assents  to  the 
signing  of  the  name  of  any  person  without  his  consent,  or  of  any 
deceased  or  fictitious  person  to  any  petition  or  recommendation 
with  the  intent  of  procuring  any  commutation  of  sentence,  pardon, 
or  reprieve  of  any  person  convicted  of  any  crime  or  offense,  or  for 
the  purpose  of  procuring  such  pardon,  reprieve  or  comm\itation,  to 
be  refused  or  delayed  by  any  public  officer,  or  with  the  intent  of 
procuring  from  any  person  whatsoever,  either  for  himself  or  another. 
any  appointment  to  office,  or  to  any  position  of  honor  or  trust,  or 
with  the  intent  to  influence  the  official  action  of  any  public  otiicer 
in  the  management,  conduct  or  decision  of  any  matter  affecting  the 
public,  he  shall  be  guilty  of  a  felony,  and  fined  not  exceeding  one 
thousand  dollars,  or  imprisoned  in  the  county  jail  or  state's  prison 
not  exceeding  five  years,  or  both,  at  the  discretion  of  the  court; 
and  if  any  person  shall  wilfully  use  any  such  paper  for  any  of  the 
purposes  or  intents  above  recited,  knowing  that  any  part  of  the  sig- 
natures to  such  petition  or  recommendation  has  been  signed  thereto 
without  the  consent  of  the  alleged  signers,  or  that  names  of  any  dead 
or  fictitious  persons  are  signed  thereto,  he  shall  be  guilty  of  a  felony, 
and  punished  in  like  manner. 
Code,  s.  1034;  1883,  c.  275. 


3427  CEIMES— Z/F.  Forgery.  Ch.  81 

3427.  Uttering  forged  paper.  If  any  person,  directly  or  indi- 
rectly, whether  for  the  sake  of  gain  or  with  intent  to  defraud  or 
injure  any  other  person,  shall  utter  or  publish  any  such  false,  forged 
or  counterfeited  bill,  note,  order,  check,  or  security,  as  is  mentioned 
in  the  preceding  section ;  or  shall  pass,  or  deliver,  or  attempt  to  pass, 
or  deliver  any  of  them  to  another  person  (knowing  the  same  to  be 
falsely  forged  or  counterfeited),  the  person  so  offending  shall  be 
punished  by  imprisonment  in  the  county  jail  or  state's  prison,  not 
less  than  four  months  nor  more  than  ten  years. 

Code,  s.  1031;  R.  C,  e.  34,  s.  61;   1819,  e.  994,  s.  2. 


Note.     Presentation  of  false  certificate  of  exemption  from  taxes,  see  s.  3401. 
XV.     Fkauds. 

3428.  Blackmailing.  If  any  person  shall  knowingly  send  or  de- 
liver any  letter  or  writing  demanding  of  any  person,  with  menaces, 
and  without  any  reasonable  or  probable  cause,  any  chattel,  money, 
or  valuable  security ;  or  if  any  person  shall  accuse,  or  threaten  to 
accuse,  or  shall  knowingly  send  or  deliver  any  letter  or  writing, 
accusing  or  threatening  to  accuse  any  person  of  any  crime  punish- 
able by  law  with  death,  or  imprisonment  in  the  state's  prison,  with 
a  view  or  intent  to  extort  or  gain  from  such  person  any  chattel, 
money,  or  valuable  security,  every  such  offender  shall  be  guilty  of  a 
misdemeanor. 

Code,  s.  989;  K.  C,  c.  34,  s.  110. 

3428a.  Cheating  minors.  Whenever  any  person  having  a  contract 
with  any  corporation,  company  or  person  fer  the  manufacture  or 
change  of  any  raw  material  by  the  piece  or  pound  shall  hire  and 
employ  any  minor  to  assist  in  said  work  upon  the  faith  of  and  by 
color  of  said  contract  and  with  intent  to  cheat  and  defraud  said 
minor,  and  shall  secure  the  contract  price  and  shall  wilfully  fail  to 
pay  said  minor  when  he  shall  have  performed  his  part  of  said  con- 
tract work,  whether  done  by  the  day  or  by  the  job,  the  person  so 
offending  shall  be  guilty  of  a  misdemeanor,  and  \ipon  conviction  shall 
be  fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than 
thirty  days. 

1893,  c.  309. 

3429.  Fairs,  fraudulent  entry  of  horses  at.  If  any  person  shall 

knowingly  enter  or  cause  to  be  entered  f(.>r  competition  or  to  compete 
for  any  purse,  prize,  premium,  stake  or  sweep-stake  offered  or  given 
by  any  agi'icultviral  or  other  society,  association  or  person  in  this 
state  any  horse,  mare,  gelding,  colt  or  filly  under  an  assumed  name  or 
out  of  its  proper  class,  he  shall  be  punished  by  fine  of  not  less  than 


3429  CEIMES— XF.   Frauds.  Ch.   81 

one  hundred  nor  more  than  one  thousand  dollars,  or  imprisonment  in 
the  state's  prison  for  not  less  than  one  nor  more  than  five  years,  or 
both  fine  and  imprisonment,  at  the  discretion  of  the  court. 

1893,  c.  387. 

Note.     See  s.  3668. 

3430.  False  lights  on  seashore.  If  any  person  shall  make  or 
display,  or  cause  to  be  made  or  displaj'ed,  any  false  light  or  beacon 
on  or  near  the  seacoast,  for  the  JJ^^'P"*®  ^^  deceiving  and  mislead- 
ing nuisters  of  vessels,  and  thereby  put  them  in  danger  of  shipwreck, 
he  shall  be  guilty  of  a  felony,  and  imprisoned  in  the  state's  prison 
for  not  less  than  four  mouths  nor  more  than   ten  years. 

Code,  s.  1024;  R.  C,  c.  34,  s.  58;   1831,  c.  42. 

3431.  False  pretense;  obtaining  advances  under  promise  to 

work.  If  any  person,  with  intent  to  cheat  or  defraud  another,  shall 
obtain  any  advances  in  money,  j^rovisions,  goods,  wares  or  mer- 
chandise of  any  description,  from  any  other  person  or  corporation 
upon  and  by  color  of  any  promise  or  agreement  that  the  person  mak- 
ing the  same  will  begin  any  work  or  labor  of  any  description  for 
said  person  or  corporation  from  whom  said  advances  are  obtained, 
and  said  person  so  making  said  ju'omise  or  agreement  shall  unlaw- 
fully and  wilfully  fail  to  commence  or  complete  said  work  according 
to  contract  without  a  lawfid  excuse,  he  shall  be  guilty  of  a  misde- 
meanor, and  wpon  conviction  shall  be  fined  not  exceeding  fifty  dol- 
lars or  imprisoned  not  exceeding  thirty  days.  And  evidence  of  such 
promise  or  agreement  to  work,  the  obtaining  of  such  advaiaces  thereon 
and  the  failure  to  comply  with  such  promise  or  agreement  shall  be 
presiuuptive  evidence  of  the  intent  to  cheat  and  defraud  at  the  time 
of  obtaining  such  advances  and  making  such  promise  or  agTcement. 
subject  to  be  rebutted  by  other  testimony  which  may  be  introduced 
by  the  defendant, 

1889,  c.  444;  1891,  c.  106;   1905,  c.  411. 

3432.  False  pretense;  cheating  by.  If  any  person  shall  know- 
ingly and  designedly,  by  means  tif  any  forged  or  counterfeited  paper, 
in  writing  or  in  print,  or  by  any  false  token,  or  other  false  pretense 
whatsoever,  obtain  from  any  person  or  corporation  within  the  state 
any  money,  goods,  property,  or  other  thing  of  value,  or  any  bank- 
note, check,  or  order  for  the  ]iayment  of  money,  issued  by,  or  drawn 
on,  any  bank  or  other  society  or  corporation  witliin  this  state,  or 
any  of  the  United  States,  or  on  any  treasury  warrant,  del)entnre, 
certificate  of  stock,  or  public  security,  or  any  order,  bill  of  exchange, 
bond,  promissory  note,  or  other  obligation,  either  for  the  payment 
of  money  or  for  the  delivery  of  si)ecific  articles,  witii  intent  to  (heat 
or  defraud  any  person  or  corporation  of  the  same,  such  person  shall 


3432  CEIMES— ZT^  Frauds.  Ch.  81 

be  guilty  of  a  felony,  and  imprisoned  in  the  state's  prison  not  less 
than  four  months  nor  more  than  ten  years,  or  fined,  in  the  dis- 
cretion of  the  court:  Provided,  that  if,  on  trial  of  any  one  indicted 
for  such  crime,  it  shall  be  proved  that  he  obtained  the  property 
in  such  manner  as  to  amount  to  larceny,  he  shall  not,  by  reason 
thereof,  be  entitled  to  be  acquitted  of  the  felony ;  and  no  person  tried 
for  such  felony  shall  be  liable  to  be  afterwards  prosecuted  for  lar- 
ceny uj^on  the  same  facts :  Provided  further,  that  it  shall  be  sufii- 
cient  in  any  indictment  for  obtaining  or  attempting  to  obtain  any 
such  property  by  false  pretenses,  to  allege  that  the  party  accused 
did  the  act  with  intent  to  defraud,  without  alleging  an  intent  to 
defraud  any  particular  person,  and  without  alleging  any  owner- 
ship of  the  chattel,  money  or  valuable  security ;  and,  on  the  trial  of 
any  such  indictment,  it  shall  not  be  necessary  to  prove  an  intent  to 
defraud  any  particular  person,  but  it  shall  be  sufficient  to  prove  that 
the  party  accused  did  the  act  charged  with  an  intent  to  defraud. 

Code,  s.  1025;  E.  C,  c.  34,  s.  67;  1811,  c.  814,  s.  2;  24  and  25  Vic,  c.  96,  s.  88; 
33  Hen.  VIII.,  c.  1,  ss.  1,  2;  30  Geo.  II.,  c.  24,  s.  1;  52  Geo.  III.,  c.  64,  s.  1 ;  7  and 
8  Geo.  IV.,  c.  29,  s.  53. 

3433.  False  pretense;  obtaining  signature  by.  If  any  person, 

with  intent  to  defraud  or  cheat  another,  shall  designedly,  by  color 
of  any  false  token  or  writing,  or  by  any  other  false  pretense,  obtain 
the  signature  of  any  person  to  any  written  instrument,  the  false 
making  of  which  would  be  punishable  as  forgery,  or  obtain  from 
any  person  any  money,  goods,  wares,  merchandise  or  other  projierty 
or  valuable  thing  whatsoever,  he  shall  be  punishable  by  fine  of  not 
less  than  one  hundred  dollars  nor  more  than  one  thousand  dollars,  or 
by  imprisonment  in  the  state's  prison  for  a  term  not  less  than  one 
year  nor  more  than  five  years,  or  both,  at  the  discretion  of  the  court. 

Code,  s.  1026;  1871-2,  c.  92. 

3434.  False  pretense;  obtaining  advances  by.   If  any  person 

shall  obtain  any  advances  in  money,  provisions,  goods,  wares  or 
merchandise  of  any  description,  from  any  other  person  or  corpora- 
tion, Tipon.  any  written  I'epresentation  that  the  person  making  the 
same  is  the  owner  of  any  article  of  produce,  or  of  any  other  specific 
chattel,  or  personal  projierty,  wliich  property,  or  the  proceeds  of 
wliich  the  o\\'ner  in  such  representation  thereby  agrees  to  apply  to 
the  discharge  of  the  debt  so  created  and  the  owner  shall  fail  to 
apply  such  produce  or  other  property,  or  the  proceeds  thereof,  in  ac- 
cordance with  such  agreement,  or  shall  dispose  of  the  same  in  any 
other  manner  than  is  so  agreed  upon  by  the  parties  to  the  transaction, 
the  person  so  ofFending  shall  be  guilty  of  a  misdemeanor,  whether 
he  shall  or  shall  not  have  been  tlie  owner  of  any  such  property  at 
the  time  such  representation  was  made. 

Code,  s.  1027;  1879,  cc.  185,  186;  1905,  c.  104. 


3435  CRIMES— XT'.  Frauds.  Ch.   81 

3435.  Mortgaged  property,  disposing  of;  indictment;  proof.  I£ 

any  jiersun,  after  executing  a  chattel  nidi-tgaiie,  <lee(l  in  trust  or 
other  lien  for  a  lawful  purpose,  shall  make  any  disposition  of  any 
personal  property  embraced  in  such  mortgage,  deed  in  trust  or  lien, 
with  intent  to  hinder,  delay  or  defeat  the  rights  of  any  person  to 
whom  or  for  whose  benefit  such  deed  was  made,  e\-ery  person  so 
oifending  and  every  person  with  a  knowledge  of  the  lien  buying  the 
property  embraced  in  any  such  deed  or  lien,  and  every  i)ersou  assist- 
ing, aiding  or  abetting  the  unlawful  disposition  of  such  property, 
with  intent  to  hinder,  delay  or  defeat  the  rights  of  any  person  to 
whom  or  for  whose  benefit  any  such  deed  or  lien  was  made,  shall 
be  guilty  of  a  misdemeanor,  and  punished  by  fine  or  imprisonment, 
or  both,  in  the  discretion  of  the  court.  In  all  indictments  for  vio- 
lations of  the  provisions  of  this  section,  it  shall  not  be  necessary  to 
allege  or  prove  the  person  to  whom  any  sale  or  disposition  of  the 
property  was  made,  but  proof  of  the  possession  of  the  property 
embraced  in  such  chattel  mortgage,  deed  in  trust  or  lien,  by  the 
gTantor  thereof,  after  the  execution  of  said  chattel  mortgage,  deed 
in  trust,  or  lien,  and  while  it  is  in  force,  and  further  proof  of  the 
fact  that  the  sheriff  or  other  oflicer  charged  with  the  execution  of 
process,  can  not  after  due  diligence  find  said  property  inider  pro- 
cess directed  to  him  for  its  seizure,  for  the  satisfaction  of  such  chattel 
mortgage,  deed  in  trust  or  lien,  or  that  the  mortgagee  demanded  the 
possession  thereof  of  the  mortgagor  for  the  purpose  of  sale  to  fore- 
close said  mortgage,  deed  in  trust  or  lien,  after  the  right  to  such 
foreclosure  had  accrued,  and  that  the  mortgagor  failed  to  produce, 
deliver  or  surrender  the  same  to  the  mortgagee  for  that  purpose, 
shall  be  prima  facie  proof  of  the  fact  of  a  disposition  or  sale  of 
such  property,  by  the  gi'antor,  with  the  intent  to  hinder,  delay  or 
defeat  the  rights  of  the  person  to  whom  said  chattel  mortgage,  deed  in 
trust  or  lien  was  made. 

Code,  s.  1089;  1887,  c.  14;  1873-4,  c.  .31;  1874o,  c.  215:  1883,  c.  61. 

3436.  Secreting  property  to  hinder  enforcement  of  lien.   Any 

person  reumving,  exchanging,  or  secreting  any  pcrsdnal  jiroperty  on 
which  a  lien  exists,  with  intent  to  prevent  or  hinder  the  enforcement 
of  the  lien,  shall  be  guilty  of  a  misdemeanor. 
1887,  c.  14. 

XVI.     Government. 

3437.  Rebellion  against  the  state.  If  any  person  shall  incite, 
set  <iu  font,  assist  or  engage  in  a  I'cbellion  or  insurrection  against  the 
authority  of  the  state  of  North  Carolina  or  the  laws  thereof,  or 
shall  give  aid  or  comfort  thereto,  every  person  so  offending  in  any 
of  the  ways  aforesaid,  shall  be  guilty  of  a  felony  and   jiunislied  by 


3437  CRIMES— X77.    Government.  Ch.   81 

imprisonment  in  the  state's  prison  for  not  more  than  fifteen  years, 
and  be  fined  not  more  than  ten  thousand  dollars. 

Code,  s.  1106;  1868,  c.  60,  s.  2;  1861,  c.  18;  1866,  c.  64;  Const.,  Art.  IV,  s.  5. 

3438.  Rebellion  or  insurrection,  conspiracy  for.  If  two  or  more 

persons  shall  conspire  together  to  overthrow  or  put  down,  or  to 
destroy  by  force,  the  government  of  North  Carolina,  or  to  levy  war 
against  the  government  of  this  state,  or  to  oppose  by  force  the  author- 
ity of  said  government,  or  by  force,  or  by  threats,  to  intimidate,  or 
to  prevent,  hinder  or  delay  the  execution  of  any  law  of  the  state, 
or  by  force  or  fraud  to  seize  or  take  possession  of  any  firearms  or 
property  of  the  state  aforesaid,  against  the  will  or  contrary  to  the 
authority  of  said  state,  every  person  so  oft'ending  in  any  of  the 
ways  aforesaid  shall  be  guilty  of  a  felony  and  imprisoned  not  more 
than  ten  years  in  the  state's  prison  and  be  fined  not  exceeding  five 
thousand  dollars. 

Code,  s.  1107;  1868,  c.  60,  s.  1. 

3439.  Secret  political  societies,  if  any  person,  for  the  purpose 
of  compassing  or  furthering  any  political  object,  or  aiding  the  suc- 
cess of  any  political  party  or  organization,  or  resisting  the  laws, 
shall  join  or  in  any  way  connect  or  unite  himself  with  any  oath- 
bound  secret  political  or  military  organization,  society  or  association 
of  whatsoever  name  or  character,  or  shall  form  or  organize  or  com- 
bine and  agree  with  any  other  person  or  persons  to  form  or  organize 
any  such  organization,  or  as  a  member  of  any  secret  political  or 
military  party  or  organization  shall  use,  or  agree  to  use,  any  certain 
signs  or  grips  or  passwords,  or  any  disguise  of  the  person  or  voice, 
or  any  disgaiise  whatsoever  for  the  advancement  of  its  object,  and 
shall  take  or  administer  any  extra-judicial  oath  or  other  secret,  sol- 
emn pledge,  or  any  like  secret  means,  or  if  any  two  or  more  persons, 
for  the  purpose  of  compassing  or  furthering  any  political  object, 
or  aiding  the  sticcess  of  any  political  party  or  organization,  or  for 
circumventing  the  laws,  shall  secretly  assemble,  combine  or  agree 
together,  and  the  more  eifectually  to  accomplish  such  purposes,  or 
any  of  them,  shall  use  any  certain  signs,  or  ffrips,  or  passwords,  or 
any  disguise  of  the  person  or  voice,  or  other  disguise  whatsoever ;  or 
shall  take  or  administer  any  extra-judicial  oath  or  other  secret,  sol- 
emn pledge,  or  if  any  persons  shall  band  together  and  assemble  to 
muster,  drill  or  practice  any  military  evolutions  except  by  virtue 
of  the  authority  of  an  officer  recognized  by  law,  or  of  an  instructor 
in  institutions  or  schools  in  which  such  evolutions  form  a  part  of 
the  course  of  instruction,  or  if  any  person  shall  knowingly  permit 
any  of  the  acts  and  things  hei'ein  forbidden  to  be  had,  done  or  per- 
formed on  his  premises,  or  on  any  premises  under  his  control,  or 


3444  CRIMES— ZT'/7.  HeaUh.  Cli.   SI 

1.  If  any  substance  or  substances  has  or  have  been  mixed  or 
packed  with  it,  so  as  to  reduce  or  lower  or  injuriously  affect  its 
quality  or  strength  so  that  such  product  when  offered  for  sale  shall 
deceive  or  tend  to  deceive  the  purchaser. 

2.  If  any  inferior  substance  has  been  substituted  wholly  or  in  part 
for  the  article  so  that  the  product  when  sold  shall  deceive  or  tend 
to  deceive  the  purchaser. 

3.  If  any  valuable  constituent  of  the  article  has  been  wholly  or 
in  part  abstracted  so  that  the  product  when  sold  shall  deceive  or 
tend  to  deceive  the  purchaser. 

4.  If  it  be  an  imitation  of,  and  sold  under  the  specific  name  of 
another  article. 

5.  If  it  be  mixed,  colored,  powdered,  coated,  polished  or  stained 
in  a  manner  whereby  damage  or  inferiority  is  concealed,  so  that 
such  product  when  sold  shall  deceive  or  tend  to  deceive  the  pur- 
chaser. 

a.  If  it  contain  any  of  the  following  substances,  M'hich  are 
hereby  declared  deleterious  and  dangerous  to  health  when  added 
to  human  food,  to-wit:  colors  which  contain  antimony,  arsenic, 
barium,  lead,  cadmium,  chromium,  copper,  mercury,  uranium 
or  zinc;  or  the  following  colors:  gamboge,  corallin,  picric  acid,  ani- 
line, or  any  of  the  coal-tar  dyes ;  saccharine,  dulciu,  glucin  or  any 
other  artificially  or  synthetically  prepared  substitute  for  sugar;  par- 
afRne,  formaldehyde,  beta-napthol,  abrastol,  benzoic  acid  or  benzo- 
ates,  salicylic  acid  or  salicylates,  boric  acid  or  borates,  sulphurous 
acid  or  sulphites,  hydrofluoric  acid  or  any  fluorine  compounds,  sul- 
phuric acid  or  potassium  sulphate  or  wbod  alcohol :  Provided,  that 
catsups  and  condimental  sauces  may,  when  the  fact  is  plainly  and 
legibly  stated  in  the  English  language  on  the  wrapper  and  label  of 
the  package  in  which  it  is  retailed,  contain  not  to  exceed  two-tenths 
of  one  per  cent,  of  benzoic  acid  or  its  equivalent  in  sodium  benzoate. 
Fermented  liquors  may  contain  not  to  exceed  two-tenths  of  one  per 
cent,  of  combined  sulphuric  acid,  and  not  to  exceed  eight-thousandths  ■ 
of  one  per  cent,  of  sulphurous  acid. 

7.  If  it  be  labeled  or  branded  so  as  to  deceive  or  mislead  the  pur- 
chaser, or  purport  to  be  a  foreign  product  when  branded  so,  or  in 
an  imitation  either  in  package  or  label  of  an  established  proprietary 
product,  which  has  been  trade-marked  or  patented. 

8.  If  it  consists  of  the  whole  or  any  part  of  a  diseased,  filthy, 
decomposed  or  putrid  animal  or  vegetable  substance,  or  any  por- 
tion of  an  animal  unfit  for  food,  whether  manufactured  or  not,  or 
if  it  is  the  product  of  a  diseased  animal  or  of  an  auinuil  that  has 


1020 


3444  CRIMES— XVII.  Health.  Gh.  81 

died  otherwise  than  by  slaughter.  In  cases  of  meats,  oysters  or  iish 
sold  or  offered  for  sale  in  the  fresh  state,  if  such  meats,  oysters  or 
fish  shall  have  been  inoculated,  dusted,  powdered,  sprayed,  rubbed, 
anointed,  washed,  sprinkled  or  fumigated,  or  in  any  manner  treated 
with  any  of  the  substances  declared  deleterious  and  dangerous  by  this 
section,  or  with  any  antiseptic  or  chemical  preservative  or  dye-stuff 
whatsoever,  whose  use  and  apparent  purpose  is  to  retard,  prevent  or 
mask  decomposition,  or  to  give  to  the  meat,  oysters  or  fish  a  false  ap- 
pearance of  freshness  or  quality.  In  addition  to  the  ways  already 
provided,  sausage  shall  be  deemed  adulterated  if  it  is  composed  in 
any  part  of  liver,  lungs,  kidneys  or  other  viscera  of  animals:  Pro- 
vided, that  the  use  of  animal  intestines  as  sausage  casings  shall  not 
be  deemed  an  adulteration. 

9.  That  candies  and  chocolate  may  be  deemed  to  be  adulterated 
if  they  contain  terra  alba,  barytes,  talc,  chrome  yellow  or  other  min- 
eral substances,  or  poisonous  colors  or  flavors,  or  other  ingredients 
deleterious  or  detrimental  to  health :  Provided,  that  an  article  of 
food,  beverage,  or  condiment  which  does  not  contain  any  added 
poisonous  ingredient  shall  not  be  deemed  to  be  adulterated  in  the 
following  cases : 

(a)  In  the  case  of  articles,  mixtures  or  compounds  which  may  be 
now,  or  from  time  to  time  hereafter,  known  as  articles  of  food,  bev- 
erages or  condiments  under  their  own  distinctive  names,  and  not 
included  in  definition  fourth  of  this  section. 

(b)  In  the  case  of  articles,  labeled,  branded  or  tagged  so  as  to 
plainly  indicate  that  they  are  mixtures,  compounds,  combinations, 
imitations  or  blends. 

(c)  When  any  matter  or  ingredient  has  been  added  to  the  food, 
beverage  or  condiment  because  the  same  is  required  for  the  produc- 
tion or  preparation  thereof  as  an  article  of  commerce,  in  a  state 
fit  for  carriage  or  consumption,  and  not  fraudulently  to  increase  the 
bulk,  weight  or  measure  of  the  food,  beverage  or  condiment,  or  con- 
ceal the  inferior  quality  thereof:  Provided,  that  the  same  shall  be 
labeled,  branded  or  tagged  as  prescribed  by  the  board  of  agricultiire 
so  as  to  show  them  to  be  compounds  and  the  exact  character  thereof: 
And  provided  further,  that  nothing  in  this  section  shall  be  construed' 
as  requiring  or  compelling  proprietors  or  manufacturers  of  proprie- 
tary foods  to  disclose  their  trade  formixlas  except  in  so  far  as  the  pro- 
visions of  this  section  may  require  to  secure  freedom  from  adultera- 
tion or  imitation :  Provided  further,  that  nothing  in  this  section  shall 
be  construed  to  apply  to  proprietary  or  patent  medicines. 

(d)  Where  the  food,  beverage  or  condiment  is  unavoidably  mixed 
with  some  harmless  extraneous  matter,  in  the  process  of  collection  or 
preparation:  Provided,  that  no  person  shall  be  convicted  under  the 


3iU  CRIMES— ZTT7.  Health.  Ch.  81 

provisions  of  this  section  when  he  is  able  to  prove  a  ^\Titten  guar- 
anty of  purity  in  a  form  approved  by  the  board  of  agriculture  as 
published  in  their  rules  and  regulations,  signed  by  the  wholesale 
jobber,  manufacturer  or  other  party  from  whom  he  purchased  said 
article. 

1895,  c.  122;  1899,  c.  86,  ss.  2-6;  1899,  c.  369;  1905,  c.  306,  ss.  3  and  4. 

3445.  Foods;  refusal  to  furnish  samples  for  analysis.  If  any 

manufacturer  or  dealer  shall  refuse  to  sell  to  a  duly  authorized 
agent  of  the  board  of  agriculture  samples  of  articles  of  food  made 
or  offered  for  sale  upon  demand,  or,  if  any  manufactui-er,  dealer  or 
person  shall  impede,  obstruct,  hinder  or  otherwise  prevent  or  at- 
tempt to  prevent  any  chemist,  inspector  or  other  person  in  the  per- 
formance of  his  duty  in  connection  with  the  law  in  regard  to  sale  of 
adulterated  and  unbranded  foods,  he  shall  l)e  guilty  of  a  misdemeanor 
and  shall,  upon  conviction,  be  fined  not  less  than  ten  dollars  nor 
more  than  one  hundred  dollars,  or  bo  imprisoned  not  more  tluni  one 
hundred  days,  or  both,  in  the  discretion  of  the  court. 
1899,  c.  86,  s.  10. 

3446.  Nuisance,  failure  to  abate.  If  any  person,  after  having 
received  a  uotihcatinu  in  writing  from  the  county  superintendent  of 
health  of  any  nuisance  on  the  premises  occupied  by  him,  or  any 
unoccupied  premises  belonging  to  him  which  is  dangerous  to  pub- 
lic health,  shall  fail  to  abate  the  same  for  twenty-four  hours  after 
such  notice  is  received  he  shall  be  guilty  of  a  misdemeanor  and  shall 
be  fined  one  dollar  a  day  so  long  as  said  nuisance  rcuuiins. 

1893,  c.  214,  s.  22. 

3447.  Obstructing  inspector  in  performance  of  duty.   If  any 

manufacturer  or  dealer  sluill  impede,  obstruct,  hinder,  or  otherwise 
interfere  with  any  inspector  or  chemist  or  other  person,  in  the  per- 
formance of  his  duty  in  the  securing  of  samples,  or  the  analysis  of 
samples  of  articles  of  condiments,  beverages,  or  foods  sold,  or  offered 
or  exposed  for  sale  in  this  state,  as  required  by  law,  he  shall  be  guilty 
of  a  misdemeanor  and  be  fined  not  exceeding  one  hundred  dollars,  or 
be  imprisoned  not  exceeding  one  hundred  days,  or  both. 

1899,  c.  80,  s.  10. 

3448.  Physician  and  county  superintendent  to  give  notice  of 

contagious  diseases,  if  a  physician  knows  that  a  ]ierson  whom  he 
is  called  to  visit  is  infected  with  smallpox,  diplitheria,  scarlet  fever, 
typhus  fever,  yellow  fever  or  cholera  he  shall  innnediately  give 
notice  thereof  to  the  health  officer  or  mayor,  if  the  sick  person  be  in 
a  city  or  incorporated  town,  otherwise  to  the  coimty  superintendent 
of  health,  and  if  he  refuses  or  neiilects  to  give  such  notice  of  it  in 


:]U8  CEIMES— ZF//.  Health.  Ch.   81 

twenty-four  hours  he  shall  be  guilty  of  a  misdemeanor  and  shall  be 
tined  for  each  offense  not  less  than  ten  nor  more  than  twenty-five 
dollars.  And  it  shall  be  the  duty  of  the  said  coimty  superintendent, 
health  officer  or  mayor  receiving  such  notice  of  the  presence  of  a 
case  of  smallpox,  yellow  fever,  typhus  fever  or  cholera  within  his 
jurisdiction  to  communicate  the  same  immediately  by  mail  or  tele- 
graph to  the  secretary  of  the  state  board  of  health.  A  failure  to 
perform  this  duty  for  twenty-four  hours  after  the  receipt  of  the 
notice  shall  be  deemed  a  misdemeanor  and  fined  not  less  than  ten 
nor  more  than  twenty-five  dollars. 
1893,  c.  214,  s.  11. 

3449.  Quarantine  regulations.  If  any  person  shall  neglect  or 
refuse  to  comply  with  or  in  any  way  violate  the  rules  promulgated 
by  the  county  superintendent  of  health  on  the  subjects  of  quarantine 
and  disinfection,  he  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  be  fined  or  imprisoned,  at  the  discretion  of 
the  court,  not  less  than  five  nor  more  than  fifty  dollars,  or  imprisoned 
not  less  than  ten  nor  more  than  thirty  days.  In  case  the  offender  be 
stricken  with  the  disease  for  which  he  is  quarantinable,  he  shall  be 
subject  to  the  penalty  on  recovery,  unless  in  the  opinion  of  the  super- 
intendent it  should  be  omitted. 

1893,  c.  214,  s.  9. 

3450.  Quarantine  regulations,  Cape  Fear  river.  If  any  person 

shall  violate  any  of  the  rules  and  regulations  made  by  the  quarantine 
board  for  the  control,  government  and  nuiintenance  of  the  quaran- 
tine station  on  Cape  Fear  river,  he  shall  be  guilty  of  a  misdemeanor. 
1893,  c.  505. 

3451.  Quarantine   regulations;   vessels.  If  any  vessel  shall 

come  into  the  state  from  any  place-  which  at  the  time  of  her  depart- 
ure was  infected  with  any  infectious  disease,  or  if  such  vessel  shall 
have  on  board,  or  shall  have  had  on  board  during  her  passage,  anj' 
infectious  disease,  and  shall  come  to  any  town,  or  into  its  harbor, 
without  permission  obtained  as  required  by  law,  the  pilot  or  master 
conducting  the  vessel,  or  ordering  or  permitting  her  to  be  conducted 
to  such  town  or  harbor,  shall  be  guilty  of  a  misdemeanor,  and  fined 
not  less  than  one  thousand  dollars,  and  imprisoned  not  exceeding  one 
year. 

Code,  s.  2894;  R.  C,  c.  94,  s.  2. 

3452.  Refusal  to  sell  sample  of  food.  If  any  person,  who  manu- 
factures, sells  or  exposes  for  sale  any  condiment,  beverage,  or  arti- 
cle of  food,  shall,  upon  tender  and  full  payment  of  the  selling  price, 
during  business  hours,  fail  or  refuse  to  furnish  to  any  person  iluly 
authorized  by  the  board  of  agriculture  to  secure  a  sample  of  such 


3452  CRIMES— XT^7/.  Health.  Ch.  81 

condiment,  beverage  or  article  of  food  for  analysis,  such  sample 
for  such  use  in  sufficient  quantity  for  analysis,  he  shall  be  guilty 
of  a  misdemeanor  and  be  fined  not  exceeding  one  hundred  dollars,  or 
be  imprisoned  not  exceeding  one  hundred  days,  or  both,  in  the  dis- 
cretion of  the  court. 
1899,  c.  86,  ss.  9,  10. 

3453.  Rules  of  sanitary  committee.  If  any  person  shall  violate 
the  rules  and  regulations  made  bv  tiie  county  sanitary  committee, 
he  shall  be  guilty  of  a  misdemeanor  and  fined  not  exceeding  fifty 
dollars,  or  imprisoned  not  exceeding  thirty  days. 

1901,  c.  245,  s.  3. 

3454.  Travelers  coming  from  infected  places.   The  board  of 

health,  or  in  case  there  is  no  board  of  health,  the  board  of  aldermen 
or  town  commissioners  of  a  city  or  town,  or  the  sanitary  committee 
of  a  county,  near  to  or  bordering  upon  either  of  the  neighboring- 
states,  may  appoint,  by  writing,  suitable  persons  to  attend  at  places 
by  which  travelers  may  pass  from  infected  places  in  other  states, 
who  may  examine  such  travelers  as  may  be  suspected  of  bringing 
any  infection  dangerous  to  the  public  health,  and  if  it  need  be  may 
restrain  them  from  traveling  until  licensed  thereto  by  the  board 
of  health  or  board  of  aldermen  or  town  commissioners  of  the  city 
or  town  to  which  they  may  come.  A  traveler  coming  from  such 
infected  place  who,  without  such  license,  travels  within  this  state 
(except  to  return  by  the  most  direct  route  to  the  state  whence  he 
came)  after  he  has  been  cautioned  to  depart  by  the  persons  so  ap- 
pointed, shall  be  isolated  or  ejected,  at  the  discretion  of  the  local 
city  or  town  board  of  health,  or  county  sanitary  committee ;  and 
upon  refusal  to  comply  with  the  regulations  of  the  said  boards  of 
health,  or  either  of  them,  on  this  subject  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  shall  be  fined  not  less  than  twenty- 
five  nor  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty 
days. 

1893,  c.  214,  s.  15;  1901,  c.  245,  s.  6. 

3455.  Vaccination,  rules  in  regard  to.  If  any  person  shall  vio- 
late any  of  the  rules  and  regulations  i>f  the  sanitary  authorities  of 
any  county  in  regard  to  vaccination,  he  shall  be  guilty  of  a  misde- 
meanor and  fined  not  exceeding  fifty  dollars  or  imprisoned  not  ex- 
ceeding thirty  days. 

1S9.3,  c.  214,  s.  23;  1901,  c.  245,  s.  7. 

3456.  Water  supply,  damage  to.  If  any  person  shall  wilfully 
put  into  the  well,  sjjring  or  cistern  of  water  of  any  otiier  ])erson  any 
substance  or  thing  whereby  such  well,  sjiring  or  cistern  may  be  en- 


3450  CRIMES— XF/7.  IleaWi.  Ch.   81 

damaged,  or  the  water  thereof  be  made  less  wliolesoiiie  or  fit  for  use, 
he  shall  be  guilty  of  a  uiisdenieanor. 
Code,  s.  1114;  R.  C,  c.  34,  s.  97;  1850,  c.  104. 

3457.  Water  supply,  damage  to.  if  any  person  shall  wilfully 
or  maliciously  defile,  corrupt  or  make  impure  any  well,  spring  or 
other  source  of  water-supply,  or  reservoir,  or  destroy  or  injure  any 
pijje,  conductor  of  water  or  other  property  pertaining  to  an  aque- 
duct, or  shall  aid  and  abet  therein,  he  shall  be  guilty  of  a  misde- 
meanor. 

Code,  3.  1114;  R.  C,  c.  34,  s.  97;  1893,  c.  214;   18.-)0,  c.  104. 

3458.  Water  supply  of  public  institutions.  If  any  person  shall 

in  any  way  intentionally  or  maliciously  damage  or  obstruct  any 
water  line  of  any  public  institution,  or  in  any  way  contaminate  or 
render  the  water  impure  or  injurious,  he  shall  be  guilty  of  a  misde- 
meanor and  shall  be  fined  or  imprisoned  in  the  discretion  of  the 
court. 

1893,  c.  63,  s.  3. 


Note.     For  walci-slipds,  see  ss.  3857-3862. 

XVIII.     Hunting. 

3459.  Before  daylight  and  after  sunset.   If  any  person  shall 

hunt  or  shoot  any  wild  fowl,  or  game  bird,  on  any  day  after  the 
hour  of  sunset,  or  before  the  hour  of  daylight,  or  shall  use  any 
gun  other  than  can  be  fired  from  the  shoulder,  or  shall  himt  or  shoot 
wild  fowl,  birds  or  game  of  any  kind  on  Sunday',  he  shall  be  guilty 
of  a  misdemeanor:  Provided,  that  wild  fowl  may  be  hunted  after 
sunset  and  before  daylight  and  by  firelight  in  that  part  of  Bogue 
sound  in  Carteret  county,  west  of  Sally  Bell's  shoal. 
Code,  s.  2837 ;  1903,  c.  346. 

3460.  Chasing  deer  with  dogs,  certain  counties.  If  any  person 

shall  chase  deer  with  dogs  in  C'lay,  Graham,  iMacon  or  Swain  county, 
he  shall  be  guilty  of  a  misdemeanor. 
1903,  c.  591. 

3461.  Currituck  sound.  If  any  person  shall  use  more  than  one 
"bush  blind,"  either  afloat  or  stationary,  in  that  jjortion  of  Currituck 
sound  south  of  a  line  beginning  at  E.  W.  Baum's  landing;  thence 
east  a  straight  course  to  Whale's  Head  light-house,  and  north  of  a 
line  extending  from  the  wharf  at  Poplar  branch ;  thence  east  to  Cur- 
rituck club  lands;  or  shall  before  or  after  they  have  put  decoys  in 
the  waters  of  Currituck  sound  sail  or  propel  a  boat  in  any  way  in 
the  above  described  territory  for  the  purpose  of  picking  up  or  forcing 

Rov.  Vol.  1— fil  1025 


;UG1  CllUlES—XVTII.  Himting.  Ch.   81 

game  of  any  kind  on  the  wing,  except  by  the  use  of  oars  oi-  jjoles,  he 
shall  he  gxiilty  of  a  misdemeanor,  and  upon  convietiou  thereof  shall 
be  fined  not  exceeding  fifty  dollars  or  be  imprisoned  not  exceeding 
thirty  days. 
1905.  c.  .300. 

3462.  Deer  by  firelight;  evidence  of  accomplices.  If  any  person 

sliall  hunt  for  deer  with  a  gim  in  the  woods  in  the  night  time,  by  fire- 
light, or  .shall  kill  or  catch  any  wild  deer  while  swimming  streams  or 
other  bodies  of  water,  the  person  so  offending  shall  be  guilty  of  a  mis- 
demeanor and  shall  pay  a  fine  not  exceeding  fifty  dollars,  or  be  impris- 
oned not  exceeding  thirty  days.  When  more  persons  than  one  are  en- 
gaged in  committing  the  offense  of  fire-hunting,  any  one  may  be  eom- 
jjelled  to  give  evidence  against  all  others  concerned ;  and  the  witness, 
upon  giving  siich  information,  shall  be  acquitted  and  held  discharged 
from  all  penalties  and  pains  to  which  he  was  subject  by  his  participa- 
tion in  the  offense.  This  section  shall  not  apply  to  Currituck  county. 
Code,  ss.  1058.  1059;  R.  C,  c.  34,  sa.  95,  96;  1774,  c.  103;  1784,  c.  212,  ss.  1,  3; 
1801,  c.  595;  1836-7,  c.  24;   1879,  c.  92;   1905,  c.  .388. 

3463.  Deer  in  Brunswick.  If  any  person  shall  kill  by  shooting 
or  drowning  or  knocking  in  the  head  any  deer  while  swimming  in  any 
waters  of  Brunswick  county,  he  shall  be  guilty  of  a  misdemeanor, 
and  be  fined  not  less  than  five  nor  more  than  twenty  dollars. 

1905,  c.  413. 

3464.  Destroying  nests  or  eggs  of  birds.  If  any  person  shall 

take  or  needlessly  destroy  the  nest  or  eggs  of  any  wild  birds,  except 
those  of  the  English  or  European  house-sparrow,  owls,  hawks, 
crows,  blackbirds,  jackdaAvs  and  rice  birds,  he  shall  be  guilty  of  a 
misdemeanor  and  be  fined  one  dollar  for  each  nest  or  egg  destroyed 
or  taken,  or  be  imprisoned  not  less  than  five  nor  more  than  ten  days 
for  each  offense.  This  section  shall  not  apply  to  any  person  taking 
eggs  or  nests  for  scientific  ]u:r])oses  only,  by  authority  of  the  Aud)i- 
bon  Society  of  ISTorth  Carolina. 

Code,  .s.  28.36;   1003    (Pr.),  c.  337,  s.  4. 

3465.  Evidence  of  illegal  hunting,  New  Hanover,  if  any  person 

shall  ofl'cr  for   sale  on   the  market,   in   New  Hanover  county,   any 
quail,  wild  turkeys  or  ducks  between  the  first  day  of  March  and  the 
first  day  of  September  it  shall  be  prima  facie  evidence  of  his  having 
killed  such  game  out  of  season. 
190.5,  c.  409. 

3466.  Killing  game  out  of  season.  If  any  person  shall  at  any 
time  hunt,  cai)ture  or  kill   any  nougame  bird,  or  shall   during  the 

102G 


3466  CRIMES— Z7777.  Huniiufj.  Ch.  81 

close  season,  or  time  in  each  year  in  which  the  hunting  or  killing  is 
prohibited,  chase  with  dogs,  hunt,  kill,  or  wound,  or  in  any  manner 
take  or  capture  any  game  bird,  or  any  deer,  opossum,  rabbit  or  squir- 
rel, he  shall  be  guilty  of  a  misdemeanor  and  be  fined  not  more  than 
fifty  dollars  or  imprisoned  not  exceeding  thirty  days :  Provided,  this 
section  shall  not  apply  to  birds  caught  or  killed  by  authority  of  the 
Audubon  Society  for  scientific  purposes  only.  This  section  shall  not 
apply  to  the  English  or  European  housesparrow,  owls,  hawks,  crows, 
blackbirds,  jackdaws,  and  rice  birds. 

Code,  ss.  2832,  2834;   1903   (Pr.),  c  337,  s.  14. 

Note.     For  close  sea.son,  see  chapter  Hunting. 

Tlie  punishment  for  violation  of  this  section  was  changed  by  the  general  assem- 
bly of  1905,  as  follows: 

Hunting  deer  in  Granville,  Person  and  Vance  counties  is  punishable  in  the  dis- 
cretion of  the  court,  1905,  c.  47. 

Deer,  squirrel,  quail  or  partridges  in  Pamlico  county,  by  a  fine  not  exceeding 
twenty-five  dollars,  or  imprisonment  not  exceeding  ten  days,  or  both,  in  the  dis- 
cretion of  the  court,  1905,  c.  99. 

Deer  and  wild  turkey  in  Richmond  county,  by  a  fine  of  not  less  than  five  dollars 
nor  more  than  ten  dollars.  1905.  c.  101. 

In  Halifax  and  Warren  counties,  by  a  fine  of  ten  dollars,  1905,  c.  137. 

Squirrel  in  Montgomery  and  Pender  counties,  by  a  fine  of  not  more  than  twenty- 
five  dollars,  1905,  c.  284. 

Any  game  bird  in  Granville  county,  bv  a  fine  of  five  dollars  for  each  bird,  1905, 
c.  369. 

Quail  or  partridges  in  Alexander  county,  in  the  discretion  of  the  court,  1905, 
c.  377. 

Quail,  partridges  or  pheasants  in  Swain  county,  in  the  discretion  of  the  court, 
1905,  e.  385. 

Deer  in  Carteret  county,  by  a  fine  of  not  less  than  ten  dollars  nor  more  than 
fifty,  1905,  c.  387. 

Deer  in  Bladen  county,  bv  a  fine  of  ten  dollars  or  imprisonment  for  ten  days, 
1905,  c.  398. 

Any  game  bird  or  deer  in  New  Hanover  county,  by  a  fine  of  not  less  than  five 
dollars  nor  more  than  twenty  dollars,  1905,  c.  409. 

In  Brunswick  any  game  bird  or  deer,  by  a  fine  of  not  less  than  five  dollars  nor 
more  than  twenty  dollars,  1905,  c.  413. 

Jones  and  Craven,  as  to  woodcock,  by  a  fine  of  ten  dollars  or  ten  days'  imprison- 
ment, 1905,  c.  183. 

Pamlico  county,  1905,  c.  99. 

Cove  Creek  township,  Watauga  county,  in  the  discretion  of  the  court,  1905, 
c.  309. 

Lanesboro  township,  Anson  county,  a  fine  of  not  less  than  five  and  not  more  than 
fifty  dollars,  1905,  c.  389. 

3467.  MuskratS  or  minks,  by  whom.  If  any  jierson  who  has  not 
resided  within  the  state  two  years  shall  hunt  or  trap  otters,  muskrats 
or  minks,  or  shall  sell  the  hides  or  skins  from  these  animals  in  or  out 
of  the  state,  he  shall  be  guilty  of  a  misdemeanor  and  shall  for  each 
offense  be  fined  not  less  than  thirty  dollars  nor  more  than  fifty  dollars. 

1905,  c.  394. 

3468.  Netting  quail  in  certain  counties.  If  any  person  shall  net 

or  trap  any  quail  (ir  jiartridge  in  IJurke,  Madison,  Randolph,  Rich- 
mond or  Stokes  counties,  except  on  his  own  laud,  ho  shall  be  guilty 


.'34GS  CRIMES— T 17//.   ir,i„l!„,i.  Ch.   SI 

of  a  luisdemeauor,  and  be  fined  not  cxeecdini;'  fifty  dollars,  or  im- 
prisoned not  exceeding  tliirtv  (lavs. 

1897.  c.  77;  ISyH.  c  1.57:  lilOl.  c.  01  :  l!Hi:i.  e.  SO:  1!IU.5,  cc.  13,  24.  ' 

3469.  Nonresidents  hunting  without  license.  If  any  nonresi- 
dent shall  hunt  in  the  state  without  license,  as  required  by  law,  or 
shall  hunt  upon  the  lands  of  another  without  his  written  consent,  or 
sliall  fail  to  carry  his  license  with  him  in  hunting,  or  shall  fail  upon 
demand  to  exhibit  it  to  any  game  warden  or  iwlice  officer,  he  .shall 
\ye  guilty  of  a  misdemeanor.  Each  day's  hunting  without  license 
shall  be  a  separate  offense. 

1903   (Pr.),  c.  337,  s.  10. 

3470.  Packages  of  game  to  be  marked.  If  any  person  shall  de- 

li\'er  or  knowingly  rcceixc  for  transportation  any  receptacle  or  pack- 
age containing  birds  or  game,  unless  the  same  shall  be  labeled  on 
the  address  side  in  plain  letters  with  the  name  and  address  of  the 
owner  and  consignor,  and  with  the  kind  or  kinds  of  birds  which  the 
said  package  or  receptacle  contains,  or  shall  falsely  label  the  same, 
he  shall  be  guilty  of  a  misdemeanor. 

1903    (Pr.),  c.  337,  s.  8. 

3471.  Shipping  certain  birds.  If  any  person  shall  knowingly 
receive  for  transi^ortation,  or  shall  ti-ansport  or  cause  to  be  trans- 
ported, or  have  in  his  possession  with  the  intent  to  transport,  or  to 
secure  the  transportation  of,  or  shall  in  any  manner  carry  or  convey, 
beyond  the  limits  of  this  state,  except  for  purposes  of  propagation 
under  permits  issued  by  the  Audubon  Society  of  iSTorth  Carolina,  any 
partridge,  pheasant,  grouse,  shore  or  beach  birds,  quail,  wild  tur- 
key, snipe,  woodcock,  or  nongame  bird  which  have  been  killed  or 
captured  within  this  state,  he  shall  be  guilty  of  a  misdemeanor; 
and  each  bird  so  killed  or  taken  or  had  in  possession,  received  for 
transportation  or  transported  contrary  to  the  provisions  of  this  sec- 
tion shall  constitute  a  separate  offense.  The  reception  by  anj'  per- 
son or  corporation  within  this  state  of  any  siieh  birds  or  game  for 
shipment  to  a  jjoint  beyond  the  limits  of  this  state,  shall  he  prima 
facie  evidence  that  said  birds  or  game  were  killed  within  the  state 
for  the  purpose  of  conveying  same  beyond  its  limits;  but  the  pro- 
visions of  this  section  shall  not  apply  to  the  common  carriers  into 
whose  possession  any  of  the  birds  mentioned  in  this  section  shall 
come  in  the  I'egular  course  of  their  business  for  transportation  while 
they  are  in  transit  through  the  state  from  any  place  without  the 
slate. 

1903   (Pr.).  c.  337.  s.  7:  Code,  s.  2835. 

3472.  Shipping  or  selling  birds  in  certain  counties.  If  any  per- 
son shall  sell  or  otfov  for  sale,  or  have  in  his  possession  any  quail  in 

1028 


;U72  CRIMES— XF///.  Hiiulini/.  Cii.  SI 

Forsyth  county,  during  the  close  season ;  or  shall  sell,  or  offer  to  sell, 
or  in  any  way  dispose  of  any  quail  in  Catawba  or  Iredell  counties, 
which  wore  not  killed  by  hunting  and  shooting  during  the  open 
season  in  those  counties ;  or  shall  sell  or  offer  for  sale,  or  have  in  his 
possession  for  sale  in  Buncombe  county,  any  quail,  ]iartridge,  pheas- 
ant, grouse,  wild  turkey  or  dove  killed  in  said  county,  except  during 
the  open  season,  or  shall  in  said  coimty  kill  more  than  twenty-five 
of  such  birds  in  one  day ;  or  shall  sellj  offer  to  sell  or  buy  any  pheas- 
ant during  the  close  season  in  Randolph  county,  unless  such  pheasant 
shall  have  been  propagated  in  an  enclosure  and  killed  for  his  private 
use;  or  shall  ship  or  transport  or  convey  any  quail  or  partridge  oiit 
of  Surry,  Catawba  or  Iredell  counties,  or  any  live  quail  or  partridge 
out  of  Swain  county ;  or  shall  take  or  destroy  any  quail  or  partridge 
in  Catawba  or  Iredell  counties,  except  by  hunting  and  shooting  dur- 
ing the  open  season,  on  his  own  land,  he  shall  be  guilty  of  a  misde- 
meanor. The  violation  of  this  section  shall  be  punished  as  follows: 
Buncombe  and  Forsyth  counties,  by  a  fine  not  exceeding  fifty  dollars, 
or  imprisonment  not  exceeding  thirty  days.  Catawba,  Iredell,  Swain 
and  Surry  counties  in  the  discretion  of  tlie  coitft.  ^ 
1905,  ce.  305,  173,  343,  251,  334. 

3473.  Wild  fowl,  Carteret  county.    If  any  person  shall  hunt  or 

shoot  wild  fowl  by  firelight  after  tlio  hour  of  sunset  and  before  the 
hour  of  sunrise  in  Carteret  county,  except  in  that  part  of  Bogue  sound 
west  of  Sally  Bell  shoal,  or  use  for  such  shooting  any  other  gun  than 
one  that  can  be  fired  from  the  shoulder;  or  if  any  per.son  shall  hunt 
or  shoot  wild  fowl  in  Carteret  county  with  or  fi-om  batteries  or- 
sneak  boats  froiu  the  first  day  of  April  to  the  first  day  of  December 
of  any  year;  or  if  any  person  shall  hunt  wild  fowl  with  batteries  or 
sneak  boats,  or  shoot  them  therefrom  in  that  part  of  Bogiie  sound, 
('arteret  county,  west  of  Sally  Bell  shoal,  at  any  season,  he  shall  be 
guilty  of  a  misdemeanor  and  be  fined  not  less  than,  ten  nor  more  than 
fifty  dollars. 
1903,  e.  346. 

3474.  Wild  fowl,  Currituck  county.   If  any  person  shall  put 

bushes  or  blinds  of  any  kind  on  their  boats  or  floats  of  any  kind  with 
intent  to  decoy  or  pursue  ducks,  or  shall,  after  putting  out  decoys, 
sail,  row,  or  in  any  manner  propel  a  boat  after  wild  fowl  to  put 
them  on  the  wing,  or  shoot  them  with  rifle  or  shotgam  from  any 
boat  while  sailing,  or  shall  place  any  sail,  flag,  or  other  device  upon 
any  land  bordering  on  the  water  to  frighten  any  wild  fowl,  or  shall 
leave  more  than  one  stationary  busli  or  blind  standing  in  the  water 
between  the  hours  of  dark  and  sunrise,  or  shall  fail  to  anchor  any 
decked  boat  or  float-house,  or  house  built  over  the  water  and  used 


3474  CRIMES— XTY/7.  Hunting.  Ch.  81 

to  live  in  for  the  purpose  of  fishing  or  hunting  wild  fowl,  in  shoal 
water  not  more  than  three  hundred  yards  from  the  mainland  on 
the  west  side  of  Currituck  sound,  or  at  some  public  landing  on  the 
east  side  between  the  north  end  of  Church's  island  and  the  south 
end  of  Powell's  point  at  dark,  or  shall  at  dark  fail  to  go  to  some 
landing  as  aforesaid,  or  shall  leave  any  lauding  or  ancliorage  before 
sunrise  in  the  morning  for  the  purpose  of  hunting  or  fishing,  or 
shall  before  sunrise  put  out  any  decoys  of  any  kind,  or  nets,  or 
shall  continue  to  hunt  or  fish  after  dark,  or  shall,  between  the  thirty- 
first  day  of  "March  and  the  tenth  day  of  November  of  any  year, 
shoot  or  capture  any  wild  fowl  over  decoys,  or  shall  between  the 
tenth  day  of  November  of  any  year  and  the  thirty-first  day  of  March 
of  the  next  year  on  any  Wednesday,  Saturday  or  Sunday  hunt,  take, 
kill  or  capture  any  M'ild  fowl,  or  on  any  of  said  days  shall  disturb  or 
rout  any  raft  of  wild  fowl  unless  the  same  be  unavoidable  in  the 
usual  course  of  navigation,  or  shall  between  the  tenth  day  of  Novem- 
ber and  the  fifteenth  day  of  February  skiff  or  ring-shoot  any  boobies 
or  ruddy  duck,  or  shall  between  the  thirty-first  day  of  jMarch  and  the 
tenth  day  of  November  ship  out  of  the  county  any  wild  fowl,  or 
shall  sail  or  propel  a  boat  on  Sunday  for  the  purpose  of  locating 
wild  ia\\\,  or  if  any  hired  or  employed  person  sliall  sail  or  lay  around 
anywhere  near  any  citizen  who  may  be  gunning  or  fishing  to  dam- 
age his  shooting  or  keep  him  from  shooting,  he  sjiall  be  guilty  of  a 
misdemeanor.    This  section  shall  only  apply  to  Currituck  county. 

1889,  c.  59;  1889,  c.  115;  1889,  c.  126;  1893,  c.  286;  1895,  c.  299;  1897,  c.  291; 
1899,  c.  245;  1903,  c.  112;  1903,  c.  136. 

3475.  Hunting  wild  fowl  in  Dare  county  without  license.   If 

any  nonresident  shall  hunt  wild  fowl  in  Dare  county  without  hav- 
ing paid  the  license  tax  required  by  law,  or  if  any  person  shall  hunt 
wild  fowl  in  said  county  in  any  manner  not  autliorized  by  law,  he 
shall  be  guilty  of  a  misdemeanor. 

1897,  c.  415;  1899,  c.  133. 

3476.  Wild  fowl  in  Dare  county.  If  any  nonresident  of  this  state 
sliall  slioot  wild  fowl  from  any  bo;it  or  floating  battery  in  the  waters 
of  that  part  of  Dare  county  \vhich  lies  south  of  a  line  passing  east 
and  west  through  the  extreme  northern  end  of  Roanoke  island,  unless 
within  four  miles  of  some  clubhouse  or  lodge  of  which  he  is  a  mem- 
ber or  guest,  or  from  some  licensed  boat  or  battery  from  which  non- 
residents are  by  law  authorized  to  shoot  wild  fowl,  lie  shall  be  guilty 
of  a  misdemeanor. 

1899,  c.  133,  s.  2;   1901,  c.  157. 

3477.  Wild  fowl  in  New  Hanover  and  Brunswick  counties.  If 

any  jx'rsfjii  sliall  kill,  for  sale,  any  wild  fnwls  in  the  walcrs  of  Dare, 

1030 


3477  CRIMES— Zy/77.  Hunting.  Ch.  81 

ISTew  Hanover  or  Brunswick  counties  between  the  tenth  days  of 
March  and  November  of  any  year,  or  ship  out  of  the  state  between 
said  dates  any  wild  fowl  killed  in  the  waters  aforesaid,  or  if  any 
nonresident  shall  in  said  counties,  or  in  Currituck  county,  shoot 
any  wild  fowl  from  any  blind,  box  or  battery  or  iioat,  not  on  land 
at  the  time,  he  shall  be  guilty  of  a  misdemeanor  and  be  fined  not 
more  than  fifty  dollars,  or  imprisoned  not  more  than  tiiirty  days. 
Code,  s.  2840;  1889,  c.  59. 

3478.  Wild  fowl  in  Pamlico  sound,  Hyde  county.  If  any  person 

shall  shoot  any  wild  fowl  in  the  waters  of  Pamlico  soimd,  in  Hyde 
county,  from  any  box,  battery  or  float  not  on  land  at  the  time,  he 
shall  be  guilty  of  a  misdemeanor:  Provided,  residents  of  the  state 
may  shoot  from  batteries  not  on  land  on  Monday,  Tuesday,  Thurs- 
day and  Friday  of  each  week  and  on  no  other  days. 
1897,  c.  484. 

3479.  Wild  fowl  with  fire,  if  any  person  shall  hunt  wild  fowl, 
or  game  birds  of  any  kind,  with  fire,  he  shall  be  guilty  of  a  mis- 
demeanor and  upon  conviction  be  fined  not  less  than  twenty  and 
not  more  than  fifty  dollars,  or  imprisoned  not  less  than  ten  days  and 
not  more  than  thirty  days. 

Code,  s.  2839. 

3480.  Without  written  permission.  If  any  person  shall,  without 
having  first  obtained  permission  of  the  owner,  hunt  with  gun  or 
dogs  on  the  laud  of  another,  or  if  he  shall  fish  or  attempt  to  catch 
fish  from  said  lauds  after  being  forbidden,  he  shall  be  guilty  of  a 
misdemeanor  and  be  fined  not  exceeding  fifty  dollars  or  imprisoned 
not  exceeding  thirty  days. 

Code,  s.  2831;  1895,  c.  147*. 

3481.  Without  written  permission.  If  any  person  shall  hunt 
with  dog  or  gun  upon  the  lands  of  another  without  the  written  con- 
sent of  the  owner  of  the  lands,  he  shall  be  gi^ilty  of  a  misdemeanor. 
This  section  slrall  apply  only  to  the  counties  of  Hertford,  Rowan, 
Wayne,  Madison,  Montgomery,  Currituck,  l^ash,  Yadkin,  Robeson, 
Craven,  Jones,  Bock  Creek  township,  Randolph  county;  Mineral 
Springs  and  Wolfpit  townships,  Richmond  county ;  Rutherford  town- 
ship, Rutherford  county;  Goose  Nest,  Poplar  Point  and  Hamilton 
to'wnships,  Martin  county ;  and  to  hunting  quail  or  partridge  in  Frank- 
linville  township,  Randolph  county,  and  in  Columbia  township,  Ran- 
dolph county,  within  the  following  boundary  lines,  to-wit:  From 
junction  of  Columbia  and  Franklinville  townships  on  Franklinville 
and  Siler  City  public  road ;  thence  north  Avitli  the  line  dividing 
Franklinville  and  Columbia  township  line  to  Liberty  township  line ; 


■64:81  CRIMES— AT///.  Iluuting.  Oh.  81 

thence  east  with  line  dividing  Columbia  and  Liberty  townships  to 
Ramsenr  and  Liberty  public  road ;  thence  south  with  Liberty  and 
Eamsenr  public  roads  to  Franklinville  road  at  llamseur  academy; 
thence  M-ith  said  road  to  the  beginning.  There  shall  be  no  hunting 
at  all  exccjit  in  the  month  of  JJecember  of  each  year  in  _^Lldisou 
county,  and  in  ]\Lirtin  county  consent  may  bo  given  by  the  authorized 
agent.  This  section  shall  not  apjdy  to  fox  hunting  in  Wayne  county, 
or  to  fox  hunting  with  three  or  more  dogs  in  Xash  county,  or  to  the 
hunting  of  wolves,  bears,  foxes  and  wildcats  in  Madison  county,  or 
to  the  lumting  by  tenants  on  the  lands  of  their  landlords  in  ilartin 
county.  The  jjunishment  for  the  violation  of  this  section  shall,  as  to 
the  several  places  to  which  it  applies,  be  as  follows:  In  Hertford  and 
Rowan  counties,  by  a  tine  of  not  less  than  five  dollars  nor  more  than 
twenty-five  dollars,  or  imprisonment  not  more  than  thirty  days;  in 
Wayne  county,  by  a  fine  of  not  less  than  five  dollars  nor  more  than 
ten  dollars  for  each  offense ;  in  iladison  county,  by  a  fine  of  not  less 
than  five  dollars  nor  more  than  twenty-five  dollars,  or  imprisonment 
not  less  than  five  nor  more  than  twenty  days ;  in  Montgomery  county, 
by  a  fine  not  less  than  ten  dollars  nor  more  than  fifty  dollars,  or  im- 
prisonment not  to  exceed  thirty  days ;  in  Currituck  county,  by  a  fine 
not  exceeding  ten  dollars,  or  imprisonment  not  exceeding  ten  days; 
in  Nash  county,  by  a  fine  of  not  less  than  five  dollars  nor  more  than 
twenty-five  dollars ;  in  Robeson  and  Yadkin  counties,  by  a  fine  not 
less  than  five  dollars  nor  more  than  ten  dollars ;  in  Craven  and  Jones 
counties,  by  a  fine  of  not  less  than  five  dollars  nor  more  than  twenty- 
five  dollars,  or  imprisonment  not  exceeding  thirty  days ;  in  Randolph 
county,  by  a  fine  of  not  less  than  five  dollars,  or  imjirisonmcnt  not 
exceeding  thirty  days;  in  Richmond  county,  by  a  fine  not  less  than 
five  dollars  nor  more  than  fifty  dollars,  or  imprisoiunent  not  exceed- 
ing twenty  days ;  in  Rutherford  county,  by  a  fine  of  five  dollars ;  in 
Martin  county,  by  a  fine  not  to  exceed  ten  didlars,  or  imprisonment 
not  to  exceed  ten  days;  in  Randolph  county,  by  a  fine  not  exceeding 
five  dollars,  or  imprisonment  not  exceeding  ten  days;  in  Craven  and 
Jones  counties,  prosecution  can  be  maintained  only  niion  complaint 
of  the  land  owner. 

1899,  c.  279;  1901,  cc.  63,  150;  1903,  cc.  lo3,  770;  190.5.  cc.  13,  156,  150,  322, 
1G7,  329,  382,  12,  .323,  216,  61,  185,  25.  510. 

XIX.     Insurance. 

3482.  Adjuster  acting  for  unauthorized  company.  If  any  per- 
son shall  act  as  adjuster  on  a  contract  made  otherwise  than  autlior- 
ized  by  the  laws  of  this  state,  or  by  any  insurance  company  or  per- 
son not  regularly  licensed  to  do  business  in  the  state,  or  shall  adjust 
or  aid  in  the  adjustment,  either  directly  or  indirectly,  of  a  loss  by 
fire  on  property  located  in  this  state,  incurred  on  a  contract  not 


;;4S2  CEIMES— ATX.  Imumnce.  Ch.  81 

authorized  by  the  laws  of  the  state,  he  shall  be  deemed  guilty  of  a 
misdemeanor  and  shall  upon  conviction  be  fined  not  less  than  two 
hundred  dollars  nor  more  than  five  hundred  dollars,  or  imprisoned 
not  less  than  six  months  nor  more  than  two  years,  or  both,  in  the 
discretion  of  the  court. 

1899,  c.  54,  s.  114. 

3483.  Agent  procuring  insurance  in  unauthorized  company, 
and  failing  to  file  statement  and  affidavit,  if  any  person  licensed 

to  procure  insurance  in  an  unauthorized  foreign  company  shall  pro- 
cure, or  act  in  any  manner  in  the  procurement  or  negotiation  of 
insiirance  in  any  unauthorized  foreign  company,  and  shall  neglect 
to  make  and  file  the  afiidavit  and  statements  required  by  law,  he 
shall  forfeit  his  license  and  be  punished  by  a  fine  of  not  less  than 
one  hundred  nor  more  than  five  hundred  dollars,  or  by  imprison- 
ment for  not  more  than  one  year,  or  by  both. 

1899,  c.  54,  ss.  68,  95. 

3484.  Agent  acting  without  license.  If  any  person  shall  assume 
to  act  as  an  insurance  agent  or  insurance  broker  without  license 
therefor  as  required  by  law,  or  shall  act  in  any  manner  in  the  negotia- 
tion or  transaction  of  unlawful  insurance  with  a  foreign  insurance 
company  not  admitted  to  do  business  in  this  state,  or  as  principal  or 
agent  shall  violate  any  provision  of  the  law  in  regard  to  the  negotia- 
tion or  efl^ecting  of  contracts  of  insurance,  he  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  shall  be  punished  by  a  fine  of 
not  less  than  one  hundred  nor  more  tlian  five  hundred  dollars  for 
each  offense. 

1899,  c.  54,  s.  94. 

3485.  Agent  to  exhibit  license.  If  any  agent  of  any  insurance 
company  shall,  on  demand  of  any  person  from  whom  he  shall  solicit 
insurance,  fail  to  exhibit  a  certificate  from  the  insurance  commis- 
sioner bearing  the  seal  of  his  ofiice,  and  dated  within  one  year  from 
such  demand,  he  shall  be  fined  five  dollars  or  imprisoned  ten  days 
for  each  offense. 

1899,  e.  54,  s.  81. 

3486.  Agent  obtaining  premiums  by  false  representations.  If 

any  insurance  agent  or  broker  knowingly  ]irocures  by  fraudulent  rep- 
resentations payment,  or  the  obligation  for  the  payment  of  a  pre- 
mium of  insurance,  he  shall  be  punished  by  a  fine  of  not  less  than 
one  hundred  nor  more  than  five  hundred  dollars,  or  be  imprisoned 
for  not  more  than  one  year. 
1899,  c.  54,  s.  69. 


3487  CRIMES— X/JT.  rnsumme.  Ch.  81 

3487.  Agents,  etc.,  making  false  statements,  if  any  solicitor, 

agent,  examining  physician  or  other  jiersim  shall  knowingly  or  wil- 
fully make  any  false  or  fraudulent  statement  or  representation  in 
or  with  reference  to  any  publication  for  insurance,  or  shall  make 
any  such  statement  for  the  purpose  of  obtaining  fee,  commission, 
money  or  benefit  in  any  corporation  transacting  business  in  this 
state,  he  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall 
be  punished  by  a  tine  of  not  less  than  one  hundred  dollars  nor  more 
than  five  hundred  dollars,  or  imprisonment  in  the  county  jail  for 
not  less  than  thirty  days  nor  more  than  one  year,  or  both,  at  the  dis- 
cretion of  the  court;  and  if  any  person  shall  wilfully  make  a  false 
statement  of  any  material  fact  or  thing  in  a  sworn  statement  as  to 
the  death  or  disability  of  a  .policy  or  certificate  holder  in  any  such 
corporation,  for  the  purpose  of  procuring  payment  of  a  benefit 
named  in  the  certificate  of  such  holder,  he  shall  be  guilty  of  per- 
jury. 

1899.  f.  54,  s.  60. 

3488.  Agents  signing  certain  blank  policies.  If  any  agent,  com- 
missioned or  otherwise,  of  any  steam-boiler,  liability,  accident,  plate- 
glass,  or  fidelity  insurance  company  shall  sign  any  blank  contract 
or  policy  of  insurance,  upon  conviction  thereof  he  shall  be  fined  for 
each  offense  not  less  than  one  hundred  dollars  nor  more  than  two 
hundred  dollars. 

1899,  e.  54,  ss.  108,  109. 

3489.  Agent  guilty  of  larceny,  if  any  insurance  agent  or  broker 
who  acts  in  negotiating  a  contract  of  insurance  by  an  insurance 
company  lawfully  doing  business  in  this  state  embezzles  or  fraudu- 
lently converts  to  his  own  use,  or,  with  intent  to  use  or  embezzle, 
takes,  secretes,  or  otherwise  disposes  of,  or  fraudulently  withholds, 
appropriates,  lends,  invests,  or  otherwise  uses  or  applies  any  money 
or  substitute  for  money  received  by  him  as  such  agent  or  broker, 
contrary  to  the  instructions  or  without  the  consent  of  the  company 
for  or  on  account  of  which  the  same  was  received  by  him,  he  shall  be 
deemed  guilty  of  larceny. 

1889,  c.  54.  s.  103. 

3490.  Agent  violating  insurance  law.  if  any  iierson,  either  as 

principal  or  ugout,  or  pretending  to  be  such,  shall  solicit,  examine 
or  inspect  any  risk,  or  shall  examine  into,  adjust,  or  aid  in  adjust- 
ing any  loss,  or  shall  receive,  collect  or  transmit  any  premium  of 
insurance,  or  shall  do  any  other  act  in  the  soliciting,  making  or 
executing  any  contract  of  insurance  of  any  kind  otherwise  than  the 
law  permits,  he  shall  be  deemed  guilty  of  a  misdemeanor,  and  on 


3490  CEIMES— X7X.  Insvrnnce.  Ch.   81 

conviction  shall  pay  a  fine  of  not  less  than  two  hundred  dollars  nor 
more  than  five  hundred  dollars,  or  be  imprisoned  not  less  than  one 
nor  more  than  two  years,  or  both,  at  the  discretion  of  the  court. 
1899,  c.  54,  s.  115. 

3491.  Agent's  compensation,  unlawful  restriction  of.  It  shall 

be  unlawful  for  any  fire  insurance  company,  association  or  partner- 
ship doing  business  in  this  state  employing  an  agent  who  is  employed 
by  another  fire  insurance  company,  association  or  partnership,  either 
directly  or  tlirough  any  organization  or  association,  to  enter  into, 
make  or  maintain  any  stipulation  or  agTeement  in  restraint  of  or  lim- 
iting the  compensation  which  said  agent  may  receive  from  any  other 
fire  insurance  company,  association  or  partnership.  The  penalty  for 
any  violation  of  this  section  shall  be  a  fine  of  not  less  than  two  hun- 
dred and  fifty  dollars  nor  more  than  five  hundred  dollars  and  the  for- 
feiture of  license  to  do  business  in  this  state  for  a  period  of  twelve 
months  thereafter. 
1905,  c.  424. 

3492.  Company  advertising  assets  without  liabilities.   If  any 

company  or  any  agent  thereof  issues  or  circulates  advertisements  in 
which  any  such  company  publishes  its  assets  and  does  not  in  the 
same  connection  and  with  equal  conspicuousness  publish  its  liabili- 
ties computed  on  the  basis  aUowed  for  its  annual  statements,  or  any 
publication  purporting  to  show  its  capital  which  exhibits  more  than 
the  amount  of  such  capital  as  has  been  actually  paid  in  cash,  it  or 
he  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  two 
hundred  dollars. 
1899,  c.  54.  ss.  18,  96. 

3493.  Company  making  false  statement.  If  any  insurance  com- 
pany in  its  annual  or  other  statement  required  by  law  shall  wilfully 
misstate  the  facts,  the  insurance  company  and  the  person  mak- 
ing oath  to  or  subscribing  the  same  shall  severally  be  punished  by  a 
fine  of  not  less  than  five  hundred  nor  more  than  one  thousand 
dollars.  Any  person  making  oath  to  such  false  statement  shall  be 
g-uilty  of  the  crime  of  perjury. 

1899,  c.  54,  s.  97. 

3494.  Failure  to  exhibit  books  on  demand.  If  any  person  hav- 
ing in  his  possession  or  control  any  books,  accounts  or  papers  of  any 
person  licensed  under  the  insurance  law  shall,  on  demand,  refuse  to 
exhibit  the  same  to  the  insurance  commissioner,  or  shall  knowingly 
or  wilfully  make  any  false  statement  in  regard  to  the  same,  such 
person  shall  be  deemed  guilty  of  a  misdemeanor,   and,  \ipon  con- 


3494  CEIMES— X/.Y.  Insurance.  Cli.   SI 

viction  thereof  shall  be  fined  or  imprisoned,  or  both,  at  the  discretion 
of  the  court. 

1899,  c.  54,  s.  7G. 

3495.  Fire  company  reinsuring  in  unauthorized  company.   If 

any  fire  iusurance  company  shall,  directly  or  indirectly,  reinsure  any 
risk  taken  by  it  on  any  property  located  in  ^N^orth  Carolina  in  any 
company  not  duly  authorized  to  transact  business  herein,  the  insur- 
ance agent  and  the  company  effecting  or  acting  in  the  negotiation 
of  such  reinsurance  shall  severally  be  punished  by  a  fine  of  five 
hundred  dollars. 

1S99,  e.  54,  ss.  63,  98. 

3496.  Mutual  fire,  guaranteeing  against  assessments.  If  any 

director  or  other  officer  of  a  mutual  fire  insurance  company,  either 
ofiicially  or  privately,  shall  give  a  guarantee  to  a  policy-holder 
thereof  against  an  assessment  to  which  such  policy-holder  would 
otherwise  be  liable,  he  shall  be  punished  by  a  fine  not  exceeding  one 
hundred  dollars  for  each  offense. 
1899,  c.  54,  s.  100. 

3497.  Reinsurance;  medical  examination.  If  any  domestic  life 

insurance  company  shall  reinsure  its  risks,  except  by  permission  of 
the  insurance  commissioner,  exceeding  one-half  of  any  individ- 
ual risk,  or  if  any  life  insurance  company  organized  under  the  laws 
of,  or  doing  business  in,  this  state  shall  enter  into  any  contract  of 
insurance  upon  lives  within  this  state  without  having  previously 
made  or  caused  to  be  made  a  prescribed  medical  examination  of  the 
inspired  by  a  registered  medical  practitioner,  such  insurance  com- 
pany, or  any  officer,  agent  or  other  person  soliciting  or  effecting,  or 
attempting  to  effect,  a  contract  of  insurance  contrary  to  this  section, 
shall  be  deemed  guilty  of  a  misdemeanor  and  shall  be  pimished  by 
a  fine  not  exceeding  one  himdred  dollars  for  each  offense. 

1899.  c.  54,  s.  58. 

XX.     Lakcenv. 

3498.  Bank-notes,  securities,  etc.  If  any  person  shall  feloni- 
ously steal,  take  and  carry  away,  or  take  by  robbery,  any  bank-note, 
cheek,  or  order  for  the  payment  of  money  issued  by  or  drawn  on 
any  bank,  or  other  society  or  corporation  within  this  state  or  within 
any  of  the  I'nitcd  States,  or  any  treasury  warrant,  debenture,  cer- 
tificate of  stock,  or  other  public  security,  or  certificate  of  stock  in 
any  corporation,  or  any  order,  bill  of  exchange,  bond,  promissory 
note,  or  other  obligation,  either  for  the  payment  of  money  or  for 
tlie  delivery  of  specific  articles,  being  the  property  of  any  other  per- 


:;i'.iS  CRIMES— ZX.  Lair  en  i/.  Cli.   81 

-.111,  or  of  any  corporation  (notwithstanding  any  of  the  said  particu- 
hirs  may  be  termed  in  law  a  chose  in  action),  siTch  felonious  stealing, 
taking  and  carrying  away,  or  taking  by  robbery,  shall  be  felony 
of  the  same  nature  and  degree  and  in  the  same  manner  as  it  wouhl 
have  been  if  the  offender  had  feloniously  stolen,  or  taken  by  robbery, 
money,  goods,  or  property  of  any  value,  and  such  offender  for  every 
such  offense  shall  suffer  such  punishment,  and  be  subject  to  the 
same  pains,  penalties  and  disabilities  as  he  should  or  might  have 
suffered  if  he  had  feloniously  stolen  or  taken  by  robbery  money, 
goods,  or  other  property  of  value. 

Code.  s.  10G4;  K.  C,  e.  ;!4,  s.  20:  1811.  c.  814.  s.  1. 

3499.  By  servant,  if  any  servant  or  employee  to  whom  any 
money,  goods  or  other  chattels,  or  any  of  the  articles,  securities, 
or  clioses  in  action  mentioned  in  the  preceding  section,  by  his  mas- 
ter shall  be  delivered  safely  to  be  kept  to  the  use  of  his  master,  shall 
withdraw  himself  from  his  master  and  go  away  with  the  said  money, 
goods,  or  other  chattels,  or  any  of  the  articles,  securities,  or  choses 
in  action  mentioned  as  aforesaid,  or  any  part  thereof,  with  intent 
to  steal  the  same  and  defraud  his  master  thereof,  contrary  to  the 
trust  and  confidence  in  him  reposed  by  said  master;  or  if  any  serv- 
ant, being  in  the  service  of  his  master,  without  the  assent  of  his 
master,  -shall  embezzle  such  money,  goods,  or  other  chattels,  or  any 
of  the  articles,  securities,  or  cho.scs  in  action  mentioned  as  afore- 
said, or  any  part  thereof,  or  otherwise  convert  the  same  to  his  o'wni 
use,  with  like  purpose  to  steal  them,  or  defraud  his  master  thereof, 
the  servant  so  offending  shall  be  fined  or  imprisoned  in  the  state's 
prison  or  county  jail  not  less  than  four  mouths  nor  more  than  ten 
years,  at  the  discretion  of  the  court:  Provided,  that  nothing  in  this 
section  contained  shall  extend  to  apprentices,  or  servants,  within  the 
age  of  six-teen  years. 

Code,  s.  1065;  R.  C,  c.  .34,  s.  18;  21  Hen.  VIII.,  c.  V,  ss.  1,  2;  .",9  Geo.  III., 
e.  85;  7  and  8  Geo.  IV..  c.  20,  s.  47;  24  and  25  Vic,  c.  90.  s.  68. 

3500.  Distinction  between  grand  and  petit,  abolished.  All  dis- 
tinctions between  petit  and  grand  larceny,  Avhere  the  same  liath  had 
the  benefit  of  clergy,  is  abolished ;  and  the  offense  of  felonious  steal- 
ing, where  no  other  punishment  shall  be  specifically  prescribed  there- 
for by  statute,  shall  be  punished  as  petit  larceny  is:  Pi-ovided,  that 
in  cases  of  much  aggravation,  or  of  hardened  offenders,  the  court 
may,  in  its  discretion,  sentence  the  offender  to  the  state's  prison  for 
a  period  not  exceeding  ten  years. 

Code,  s.  1075 ;  R.  C,  c.  34,  s.  26. 

3501.  Dogs  subject  of  larceny.  If  any  person  shall  feloniously 
take,   steal   and  cawv   ;iwav   miv   dog  listed  for   taxation  on  which 


3501  CRIMES— A' A'.  Larceny.  Cb.   SI 

there  is  paid  an  annual  tax  of  one  dollar,  he  shall  be  guilty  of  lar- 
ceny. 

Code,  s.  2502;  1881,  c.  302. 

3502.  Ginseng  growing  on  land  of  another.  All  persons  shall  be 

allowed  to  dig  ginseng  at  any  time  of  the  year  for  the  purpose  of  re- 
planting the  same.  If  any  person  shall  take  and  carry  away,  or 
shall  aid  in  taking  or  carrying  away,  any  ginseng  gTowing  upon  the 
lands  of  another  person,  with  intent  to  steal  the  same,  he  shall  be 
guilty  of  a  felony,  and  shall  be  imprisoned  not  less  than  two  years 
nor  more  than  five  years,  in  the  discretion  of  the  court:  Provided, 
that  such  ginseng,  at  the  time  the  same  be  so  taken  shall  be  in  beds 
and  the  land  \ipon  which  such  beds  are  located  shall  be  surrounded 
by  a  lawful  fence. 

1905,  c.  211. 

Note.     For  digging  ginseng,  see  s.  3714. 

3503.  Growing  crops.  If  any  person  shall  steal,  or  feloniously 
take  and  carry  away  any  maize,  corn,  wheat,  rice,  or  other  grain,  or 
any  cotton,  tobacco,  potatoes,  peanuts,  pulse,  or  any  fruit,  vegetable, 
or  other  product  cultivated  for  food  or  market,  gTowing,  standing  or 
remaining  ungathered  in  any  field  or  gTound,  he  shall  be  guilty  of 
larceny,  and  punished  accordingly. 

Code,  s.  1069;  1811,  c.  816;  R.  C,  c.  34,  s.  21;  1868-9,  c.  251. 

3504.  Live  stock,  felonious  injury  equal  to.  If  any  person  shall 

pursue,  kill  or  wound  any  horse,  mule,  ass,  jennet,  cattle,  hog,  sheep 
or  goat,  the  property  of  another,  with  the  intent  unlawfully  and 
feloniously  to  convert  the  same  to  his  own  use,  he  shall  be  guilty  of 
a  felony,  and  shall  be  punishable,  in  all  respects,  as  if  convicted  of 
larceny,  though  such  animal  may  not  have  come  into  the  actual  pos- 
session of  the  person  .so  offending. 
Code,  s.  1068;  1866,  c.  57. 

3505.  Of  horse.  If  any  person  shall  steal  any  horse,  mare,  geld- 
ing or  mule  he  shall  suffer  imprisonment  at  hard  labor  for  not  less 
than  five  nor  more  than  twenty  years,  at  the  discretion  of  the  court. 
A  count  imder  this  section  may  be  joined  in  a  bill  of  indictment  with 
a  count  under  section  three  thousand  five  hundred  and  nine. 

Code,  s.  1000;  1868,  e.  37,  a.  1;  1879,  c.  2.34,  s.  2;  1806-7,  c.  62. 

3506.  Punishment  for.  in  all  cases  of  larceny  where  the  value 
of  the  property  stolen  does  not  exceed  twenty  dollars,  the  punish- 
ment shall,  for  the  first  offense,  not  exceed  imprisonment  in  the 
state's  prison  or  connnon  jail,  for  a  longer  term  than  one  year.  If 
the  larceny  is  from   tlic  jKM'Sdii,  or  frcuii   tliu  dwolliiig  by  breaking 


3506  CKIMES— A'.r.  Larceny.  Cb.   81 

and  entering  in  the  daytime,  this  .scctinn  shall  have  no  application. 
In  all  eases  of  doubt,  the  jury  shall,  in  the  verdict,  fix  the  value  of 
the  property  stolen. 
1895,  c.  285. 

3507.  Receiving.  If  any  person  .shall  receive  any  chattel,  prop- 
erty, money,  valuable  security,  or  other  thing  whatsoever,  the  steal- 
ing or  taking  whereof  shall  amount  to  larceny  or  felony,  either  at 
common  law  or  by  virtue  of  any  statute  made  or  hereafter  to  be 
made,  such  person  knowing  the  same  to  have  been  feloniously 
stolen  or  taken,  every  such  receiver  shall  be  guilty  of  a  misdemeanor, 
and  may  be  indicted  and  convicted,  whether  the  felon  stealing  and 
taking  such  chattels,  property,  money,  valuable  security,  or  other 
thing,  shall  or  shall  not  have  been  previously  convicted,  or  shall  or 
shall  not  be  amenable  to  justice ;  and  any  such  receiver  may  be  dealt 
with,  indicted,  tried  and  punished  in  siny  coimty  in  which  he  shall 
have,  or  shall  have  had,  any  such  property  in  his  possession,  or  in 
any  county  in  which  the  thief  may  be  tried,  in  the  same  manner 
as  such  receiver  may  be  dealt  with,  indicted,  tried  and  punished  in 
the  county  where  he  actually  received  such  chattel,  money,  security, 
or  other  thing;  and  such  receiver  shall  be  punished  as  one  convicted 
of  larceny. 

Code,  s.  1074;  R.  C,  c.  34,  s.  56;  1797.  c.  485,  s.  2. 

3508.  Records,  registration  booI<s;  indictment  for.  If  any  per- 
son shall  steal,  or  for  any  fraudulent  purpose  shall  take  from  its 
place  of  deposit  for  the  time  being,  or  from  any  person  having  the 
lawful  custody  thereof,  or  shall  unlawfully  and  maliciously  obliter- 
ate, injure  or  destroy  any  record,  writ,  return,  panel,  process,  inter- 
rogatory, deposition,  affidavit,  rule,  order  or  warrant  of  attorney  or 
any  original  document  whatsoever,  of  or  belonging  to  any  court  of 
record,  or  relating  to  any  matter  civil  or  criminal,  begun,  pending 
or  terminated  in  any  such  court,  or  any  bill,  answer,  interrogatory, 
deposition,  affidavit,  order  or  decree  or  any  original  document  what- 
soever, of  or  belonging  to  any  court  or  relating  to  any  cause  or  mat- 
ter begun,  pending  or  terminated  in  any  such  court,  every  such 
offender  shall  be  guilty  of  a  misdemeanor;  and  in  any  indictment 
for  such  offense  it  shall  not  be  necessary  to  allege  that  the  article, 
in  respect  to  which  the  offense  is  committed,  is  the  property  of  any 
person  or  that  the  same  is  of  any  value.  And  if  any  person  shall 
steal,  or  for  any  fraudulent  purpose  shall  take  from  the  register's 
office,  or  from  any  jierson  having  the  lawful  ci;stody  thereof,  or  shall 
unlawfully  and  wilfully  obliterate,  injure  or  destroy  any  book 
wherein  deeds  or  other  instruments  of  writing  are  registered,  or  any 
other  book  of  registration,  or  record  required  to  be  kept  by  the  regis- 


3508  C'EIMES— -YA'.  Larceni/.  Cli.  81 

ter  of  deeds,  or  shall  unlawfully  destroy,  obliterate,  deface  or  remove 
any  record  of  proceedings  of  the  board  of  county  commissioners,  or 
uulaAvfull}'  and  fraudulently  abstract  any  record,  receipt,  order  or 
voucher  or  other  paper-writing  required  to  be  kept  by  the  clerk  of 
the  board  of  commissioners  of  any  county,  he  sliall  be  guilty  of  a 
misdemeanor. 

Code,  s.  1071;  E.  C,  c.  U,  s.  31;  8  Ilcn.  VI.,  c.  12,  s.  3;  1881,  c.  17. 

3509.  Temporary  use  of  horse.  If  any  person  shall  unlawfully 
take  and  carry  away  any  horse,  gelding,  mare  or  mule,  the  property 
of  another  j)erson,  secretly  and  against  the  will  of  the  owner  of 
said  i^roperty,  with  intent  to  deprive  the  owner  of  said  property  of 
the  special  or  temporary  use  of  the  same,  or  with  the  intent  to  iiso 
said  property  for  a  special  or  temporary  purpose,  the  person  so 
offending  shall  be  guilty  of  larceny,  and  punished  by  imprisonment 
in  the  state's  prison  or  county  jail  not  less  than  four  months  nor 
more  than  ten  years,  and  fined  in  the  discretion  of  the  court:  Pro- 
vided, this  section  shall  not  be  construed  to  repeal  or  in  any  way 
afi'ect  section  three  thousand  five  huudrcd  and  five. 

Code,  s.  1067;  1879,  c.  234,  s.  1. 

3510.  Wills.  If  any  person,  either  during  the  life  of  the  testator 
or  after  his  death,  shall  steal  fir  for  any  fraudulent  purpose  destroy 
or  conceal  any  will,  codicil  or  other  testamentary  instrument,  he 
shall  be  guilty  of  a  misdemeanor. 

Code,  s.  1072;  R.  C,  c.  34,  s.  32. 

3511.  Wood  or  other  property  on  land.  If  any  person,  not  being 
the  present  owner  or  bona  fide  claimaut  thereof,  shall  wilfully  and 
unlawfully  enter  upon  the  lauds  of  another  and  carry  off  or  be 
engaged  in  carrying  off  any  wood  or  other  kind  of  property  what- 
soever, groAving  or  being  thereon,  the  same  being  the  ])roperty  of 
the  o\vner  of  the  premises,  or  under  his  control,  keeping  or  care, 
such  person  shall,  if  the  act  be  done  with  felonious  intent,  be  guilty 
of  larceny,  and  punished  as  for  that  ofi'ense;  and  if  not  done  with 
such  intent,  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  1070;   18G6,  e.  GO. 

XXI.       LiQUOES. 

3512.  Adulteration  of.  If  any  person  shall  adulterate  any  spirit- 
tious,  alcoholic,  vinous  or  malt  liquors  by  mixing  the  same  with  any 
substance  of  whatever  kind,  except  as  hereinafter  provided,  or  if 
any  person  shall  sell  or  offer  to  sell  any  spirituous,  alcoholic,  vinous 
or  malt  liquors,  knowing  the  same  to  be  thus  adulterated,  or  shall 
imjiort  into  this  state  any  spirituous  or  intoxicating  liquors,  and  sell 


:J512  CRIMES— ZJ7.  Liquors.  Ch.   81 

or  offer  to  sell  such  liquor,  knowiug  the  same  to  be  adulterated,  he 
shall  be  guilty  of  a  misdemeanor  and  fined  and  imprisoned,  or  both, 
at  the  discretion  of  the  court. 
Code,  s.  982;  1858-9,  o.  57,  ss.  1,  4. 

3513.  Adulteration  of,  selling  recipe  for.   If  any  person  who 

shall  sell  or  offer  to  sell  any  recipe  or  formula  whatever  for  adulter- 
ating any  spirituous  or  alcoholic  liquors,  by  mixing  the  same  with 
any  substance  of  whatever  kind,  except  as  is  hereinafter  provided, 
he  shall  be  guilty  of  a  felony,  and  fined  and  imprisoned  as  is  pro- 
vided in  the  preceding  section :  Provided,  that  this  section  and  sec- 
tions three  thousand  five  hundred  and  twelve  and  three  thousand  five 
hundred  and  twenty-two  shall  not  be  so  construed  as  to  prevent  drug- 
gists, physicians,  and  persons  engaged  in  the  mechanical  arts  from 
adulterating  liquors  for  medical  and  mechanical  purposes. 
Code,  s.  9S4;  1858-9,  c.  57,  ss.  2,  3. 

3514.  Dispensary  officer  or  employee  violating  rules,  etc.   if 

any  officer  or  employee  of  a  dispensary  established  by  law  shall  vio- 
late any  of  the  rules  and  regulations  prescribed  by  the  governing- 
body  of  the  city  or  to^vn  in  which  said  dispensary  is  located,  or  by 
the  dispensary  commissioners,  which  said  rules  and  regulations  are 
hereby  declared  to  be  ordinances  of  said  city  or  town,  he  shall  be 
guilty  of  a  misdemeanor,  and  shall,  upon  conviction,  be  fined  or  im- 
prisoned, or  both,  in  the  discretion  of  the  court. 
1903,  c.  233,  s.  17. 

3515.  Drinking  on,  or  refusing  to  leave  dispensary  premises. 

If  any  person  shall  drink  liqiior  on  the  premises  on  which  any 
dispensary  is  located,  or  shall  refuse  or  fail  to  leave  said  prem- 
ises, after  being  ordered  by  the  manager  so  to  do,  he  shall  be  guilty 
of  'a  misdemeanor  and  fined  not  more  than  fifty  dollars,  or  impris- 
oned not  more  than  thirty  days. 
1903,  e.  233,  s.  14. 

3516.  Druggists  failing  to  keep  record  of  sales.  If  any  drug- 
gist shall  fail  to  keep  the  record  of  sales  of  liquor,  or  shall  refuse 
to  permit  examination  of  such  record  by  the  officers  and  other  per- 
sons, as  by  law  provided,  he  shall  be  guilty  of  a  misdemeanor,  and 
fined  or  imprisoned,  or  both,  in  the  discretion  of  the  court. 

1903,  e.  233,  s.  5. 

3517.  Furnishing  to  inmates  of  institutions.    If  any  person 

shall  sell  or  give  to  any  inmate  of  any  charitable  or  penal  institution 
any  intoxicating  drink,  any  narcotic  or  poison  or  poisonous  sub- 
stances, except  iipon  the  prescription  of  a  physician,  or  shall  give 
or  sell  to  any  such  inmate  any  deadly  Aveapon,  or  any  cartridge  or 

Rev.  Vol.  1—62  1041 


3517  CRIMES— AM7.  Liquors.^  Ch.  81 

ammunition  for  firearms  of  any  kind,  he  shall  be  guilty  of  a  mis- 
demeanor, and,  upon  conviction  thereof,  shall  be  fined  or  imprisoned 
at  the  discretion  of  the  court,  and  if  he  be  an  officer  or  employee  of 
any  institution  of  the  state,  be  dismissed  from  his  office. 
1899,  c.  1,  s.  52. 

3518.  Local  option  territory,  sale  in.  If  any  person  shall  sell 

any  spirituous,  vinous  or  malt  liquors  within  any  city,  county,  town 
or  township,  in  which  a  majority  has  voted  for  no  license,  he  shall 
be  guilty  of  a  misdemeanor,  and  be  fined  or  imprisoned,  or  both,  at 
the  discretion  of  the  court. 
Code,  s.  3116;   1887,  c.  215.  s.  .3. 

3519.  Local  option  territory,  sale  by  druggist.  If  any  druggist 

shall  sell  or  otherwise  dispose  of  any  spirituous,  vinous  or  malt 
liciuors  except  for  bona  tide  medical  purposes  and  upon  the  prescrip- 
tion of  a  jDracticing  physician,  licensed  by  the  state  board  of  medical 
examiners,  known  to  such  druggist  to  be  of  reputable  standing  in 
his  profession  or  recommended  as  such  by  a  physician  who  is  so 
known,  which  prescription  shall  be  in  writing  signed  by  such  physi- 
cian, and  shall  specify  the  name  of  the  person  to  be  supplied  and 
quantity  or  dose,  or  if  any  physician  or  other  person  shall  give,  pro- 
cure or  aid  in  procuring  any  false  or  fraudulent  jireseription  for  any 
spirituous,  vinous  or  malt  liquors  in  violation  of  the  provisions  of  the 
preceding  section,  he  shall  be  guilty  of  a  misdemeanor,  and  on  con- 
viction shall  be  fined  or  imprisoned  at  the  discretion  of  the  court. 
And  no  physician  shall  give  a  prescription  to  any  drugstore  in  which 
he  is  financially  interested,  and  nothing  contained  in  this  section 
shall  be  construed  as  authorizing  any  druggist  to  refill  any  prescrip- 
tion for  intoxicating  liquors. 

Code,  s.  3116;  1887,  c.  215,  s.  4;  1889,  c.  375,  s.  5. 

3520.  Manager  of  dispensary  buying,  without  authority;  adul- 
terating; making  false  entry  on  books.  If  the  manager  or  clerk 
of  a  dispensar_y  shall  procure  any  intoxicating  liquors  from  any  per- 
son other  than  those  that  the  dispensary  board  shall  direct,  and 
offer  the  same  for  sale,  or  shall  adulterate  or  cause  to  be  adulterated, 
any  intoxicating,  spirituous,  vinous  or  malt  liquors,  by  mixing  with 
coloring  matter  or  any  drug  or  ingredient  whatever,  or  shall  mix 
the  same  with  water  or  with  other  liquor  of  different  kind  or  quality, 
or  shall  make  a  false  entry  in  any  book  or  returns  required  by  law, 
he  shall  be  guilty  of  a  mi.sdemeanor. 

1903.  c.  233,  s.   14. 

3521.  Manufacture  of,  outside  of  towns.  If  any  person  shall 
nuTnufacture  or   rectify  any  spirituous,  vinous  or  uuilt   liquors,   or 


3521  CRIMES— XZ/.  Liquors.  Ch.   81 

intoxicating  bitters,  except  in  incorporated  cities  or  towns,  having 
not  less  than  one  thousand  population  wherein  the  manufacture 
of  liquor  is  not  now,  or  may  not  hereafter  be  prohibited  by  law, 
or  regulated  by  special  statute,  he  shall  be  guilty  of  a  misdemeanor 
and  be  imprisoned  not  less  than  four  months  nor  more  than  two 
years ;  upon  a  second  conviction  he  shall  be  guilty  of  a  felony  and  be 
imprisoned  not  less  than  one  nor  more  than  three  years,  and  be  fined 
not  less  than  one  hundred  dollars  nor  more  than  one  thousand  dollars, 
or  both.  This  section  shall  not  be  constnied  to  prohibit  the  manu- 
facture of  wine  or  cider  from  gTapcs,  fruit,  or  berries  grown  on  the 
lands  of  the  manufacturer  or  purchased  by  the  manufacturer  from 
the  growers  thereof,  nor  to  brandy  manufactured  from  fruit  or 
grapes. 

1903,  c.  233,  ss.  1,  4;  1905,  c.  339,  s.  2. 

3522.  Manufacturing  or  selling  poisonous.  If  any  person  shall 

manufacture,  sell,  or  in  any  way  deal  out  spirituous  liquors,  of  any 
name  or  kind,  to  be  used  as  a  drink  or  beverage,  and  the  same  shall 
be  found  to  contain  any  foreign  pro^^erties  or  ingredients  poison- 
ous to  the  human  system,  he  shall  be  guilty  of  a  felony  and  impris- 
oned in  the  state's  prison  not  less  than  five  years,  and  may  be  fined 
in  the  discretion  of  the  court.  It  shall  be  competent  for  any  citizen 
after  making  purchase  of  any  spirituous  liquors  to  cause  the  same 
to  be  analyzed  by  some  known  competent  chemist,  and  if  upon  such 
analysis  it  shall  be  found  to  contain  any  foreign  poisonous  matter 
it  shall  be  prima  facie  evidence  against  the  party  making  such  a 
sale. 

Code,  s.  983;  1873-4,  c.  180,  ss.  1,  2. 

3523.  Minors,  purchase  for,  from  dispensary.   If  any  person 

shall  knowingly  purchase  any  liquors  from  any  dispensary  for  any 
minor  or  for  any  other  person  to  whom  the  sale  of  liquors  shall  have 
been  forbidden  by  the  commissioners  of  such  dispensary  he  shall  be 
guilty  of  a  misdemeanor. 
1905,  c.  458,  s.  2. 

3524.  Minors,  selling  to.  If  any  dealer  in  intoxicating  drinks  or 
liquors  sell,  or  in  any  manner  part  with  for  a  compensation  therefor, 
cither  directly  or  indirectly,  or  give  away  such  drinks  or  liquors, 
to  any  unmarried  person  under  the  age  of  twenty-one  years,  know- 
ing the  said  person  to  be  under  the  age  of  twenty-one  years,  he  shall 
be  guilty  of  a  misdemeanor ;  and  such  sale  or  giving  away  shall 
be  prima  facie  evidence  of  such  knowledge.  Any  person  who  keeps 
on  hand  intoxicating  drinks  or  liquors  for  the  purpose  of  sale  or 
profit  shall  be  considered  a  dealer  within  the  meaning  of  this  section. 

Code,  s.  1077;  1873-4,  c.  68;  1881,  c.  242.      ■ 
1043 


3525  CRIMES— A'A7.  Liqiiors.  Cb.   81 

3525.  Minors,  selling  to;  exemplary  damages.  The  father,  or  if 

he  be  dead,  the  mother,  guardian  or  employer  of  any  minor  to  whom 
a  sale  or  gift  shall  be  made  in  violation  of  the  preceding  section,  shall 
have  a  right  of  action  in  a  civil  suit  against  the  iK-rson  <ir  persons  so 
offending  by  such  sale  or  gift,  and  npon  proof  of  snch  illicit  sale  or 
gifts  shall  recover  from  snch  party  or  parties  so  offending,  snch  ex- 
emplary damages  as  a  jury  may  assess:  Provided,  that  snch  assess- 
ment shall  not  be  less  than  twenty-five  dollars. 
Code,  s.  1078;  1873-4,  c.  68;  1881,  c.  242,  s.  2. 

3526.  Officer  failing  to  discharge  duty  removed  from  office.  If 

any  officer  mentioned  in  sections  three  thousand  five  hundred  and 
thirty-three  and  three  thousand  five  himdred  and  thirty-four  shall 
fail  or  refuse  to  use  due  diligence  in  the  execution  of  the  provisions 
of  such  sections,  after  being  informed  of  violation  thereof,  he  shall 
be  guilty  of  laches  in  office  and  such  failure  be  cause  for  removal 
therefrom. 

1905,  c.  498,  8.  8. 

3527.  Physicians  and  druggists.  If  any  physician  shall  make 
any  prescription,  except  in  the  case  of  sickness,  for  the  purpose  of 
aiding  or  abetting  any  person  who  is  not  bona  fide  under  his  charge, 
to  purchase  any  intoxicating  liquors  contrary  to  law,  or  if  any  drug- 
gist shall  duplicate  the  prescription  of  a  physician  for  intoxicating 
liquors  for  any  person  not  bona  fide  under  his  charge,  without  the 
written  direction  of  the  physician  who  gave  the  same,  he  shall  be 
guilty  of  a  misdemeanor,  and,  iipon  conviction,  shall  be  fined  or 
imprisoned,  or  both,  in  the  discretion  of  the  court,  for  each  and 
e^'ery  offense. 

1903,  c.  233,  s.  5. 

3528.  Political  speaking,  sale  within  two  miles  of.  If  any  per- 
son shall  sell  or  give  away,  either  directly  or  indirectly,  any  spiritu- 
ous liquors,  wine  or  bitters  containing  alcohol,  within  two  miles  of 
any  place  at  Avliich  political  public  speaking  shall  be  advertised  to 
take  place,  and  does  take  place,  during  the  day  on  which  said  speak- 
ing shall  take  place,  he  shall  be  guilty  of  a  misdemeanor,  and  be 
fined  not  less  than  ten  dollars  nor  more  than  twenty  dollars,  or  im- 
prisoned not  exceeding  twenty  days. 

Code,  s.  1079;  1879,  c.  212. 

3529.  Sale  in  towns  without  license.  If  any  person  shall  manu- 
facture, sell  or  otherwise  disjiose  of  for  gain  any  spirituous,  vinous 
or  malt  liquors  or  intoxicating  bitters,  in  any  incorporated  city  or 
town,  without  first  obtaining,  as  provided  by  law,  a  license  tlicrefor 
both  from  the  board  of  commissioners  of  tlie  countv  in  which  said 


3529  CRIMES— ZZ/.  Liquors.  Ch.  81 

town  or  city  is  situated,  and  from  the  board  of  aldermen  or  city 
conncilmen,  or  the  governing  authorities,  by  whatever  name  called, 
of  said  city  or  town,  lie  sliall  be  guilty  of  a  niisdcmeanor  and  be  fined 
not  more  than  two  hundred  dollars,  or  imprisoned  not  more  than 
six  months,  or  both.  This  section  shall  not  apply  to  the  sales  of 
spirituous,  vinous  or  malt  liquors,  or  intoxicating  bitters  by  drug- 
gists upon  the  written  prescription  of  a  legally  qualified  physician 
having  the  purchaser  under  his  charge. 
Code,  s.  1076;  1903,  c.  233,  ss.  2,  3. 

3530.  Sale  of,  outside  of  towns,  if  any  person,  firm  or  corpora- 
tion shall  sell,  or  otherwise  disjjose  of  for  gain,  any  spirituous,  vinous 
or  malt  liquors,  or  intoxicating  bitters,  except  in  incorporated  cities 
and  towns,  wherein  the  sale  of  liquor  is  not  now  or  may  not  here- 
after be  prohibited  by  law,  or  regulated  by  special  statute,  he  shall 
be  guilty  of  a  misdemeanor  and  upon  conviction  be  fined  not  exceed- 
ing two  hundred  dollars,  or  imprisoned  not  exceeding  six  months,  or 
both.  This  section  shall  not  apply  to  the  sale  of  wine  or  cider  manu- 
factured from  gTapes,  berries,  or  fruits  gTown  upon  the  land  of  the 
person  so  manufacturing  the  same,  or  purchased  by  the  manufac- 
turer from  the  grower  thereof,  nor  to.  brandy  manufactured  from 
fruits  or  grapes  and  sold  in  original  packages  of  not  less  than  five 
gallons,  nor  to  sales  of  spirituous,  vinous,  or  malt  liquors  by  drug- 
gists upon  the  written  prescription  of  a  legally  qualified  physician 
having  the  purchaser  under  his  charge. 

1903,  c.  233,  ss.   1,  3. 

3531.  Selling  in  towns  having  dispensary.  If  any  person  shall, 

in  any  town  in  which  a  dispensary  is  established  by  law,  sell  or 
otherwise  dispose  of  for  gain  any  intoxicating  liquors  except  as 
provided  for  sales  in  the  dispensary,  he  shall  be  guilty  of  a  mis- 
demeanor, and  fined  or  imprisoned,  or  both,  in  the  discretion  of  the 
court. 

1903,  c.  233,  s.  15. 

3532.  Sunday,  selling  on.  If  any  person  shall  sell  spirituous,  or 
malt,  or  other  intoxicating  liquors  on  Sunday,  except  on  the  pre- 
scription of  a  physician,  and  then  only  for  medical  purposes,  he 
shall  be  guilty  of  a  misdemeanor,  and  be  punished  by  fine  or  impris- 
onment, or  both,  in  the  discretion  of  the  court. 

Code,  s.  1117;  1876-7,  c.  38. 

3533.  Unlawful  distilleries,  permitting,  on  land.  If  any  person 

shall  knowingly  permit  or  allow  any  distillery  or  other  apparatus  for 
the  making  or  distilling  of  spirituous  liquors  to  be  set  up  for  operation 
or  to  be  operated  on  lands  in  his  possession  or  control  in  any  terri- 


3533  CEIMES— ZX/.  Liquors.  Ch.   81 

tory  \\-here  the  manufacture  and  sale  of  intoxicating-  liquors  is  pro- 
hibited by  the  state  law  shall  be  ^lilty  of  a  misdemeanor  and  shall 
be  punished  in  the  discretion  of  the  court.  It  shall  be  the  diaty  of 
the  sheriff  and  his  deputies,  and  of  any  police  officer  to  search  for  and 
seize  any  distillery  or  apparatus  used  for  the  manufacture  of  spiritu- 
ous liquors  in  violation  of  any  state  law,  and  to  deliver  such  dis- 
tillery or  apparatus  to  the  proper  authorities  of  the  United  States 
government  for  confiscation.  It  shall  also  be  the  duty  of  such  officers 
to  destroy  any  materials  in  use,  or  to  be  used,  found  at  any  distillery 
for  the  manufacture  of  intoxicating  liquors  contrary  to  law ;  and  to 
seize  any  spirituous  liquors  found  in  the  possession  of  any  person 
not  tax-paid  and  stamped  as  required  by  the  United  States  govern- 
ment, and  to  deliver  the  said  liquors  to  the  proper  officers  of  the 
United  States  government  for  confiscation;  and  when  informed  of 
violation  of  this  section  to  procure  warrants  and  to  arrest  the  offender, 
and  subpoena  all  persons  who  may  have  information  concerning  the 
commission  of  the  offense  charged  against  the  party  arrested. 

1905,  c.  498,  ss.  2-5. 

Note.     See,  as  to  liability  of  officers,  s.  3526. 

3534.  Unlawful  sale  through  agents.  If  any  person  shall  unlaw- 
fully and  illegally  ])roeure  aiid  deliver  any  spirituous  or  malt  liquors 
to  another,  he  shall  be  deemed  and  held  in  law  to  be  the  agent  of  the 
person  selling  said  spiritiious  and  malt  liquors,  and  shall  be  guilty  of 
a  misdemeanor  and  shall  be  punished  in  the  discretion  of  the  court. 
Whenever  the  solicitor  of  any  judicial  district  shall  have  good  reason 
to  believe  that  liquor  has  been  manufactured  or  sold  contrary  to  law 
within  any  county  in  their  said  district  and  shall  believe  that  any 
person  shall  have  knowledge  of  the  existence  and  establishment  of 
any  illicit  distillery,  or  that  any  person  has  sold  liquor  illegally, 
then  it  shall  be  lawful  for  said  solicitor  to  apply  to  the  clerk  of  the  su- 
perior court  of  the  county  wherein  said  offense  is  supposed  to  have 
been  committed  to  issue  subpoenas  for  the  said  person  so  having 
knowledge  of  said  offenses  to  appear  before  the  next  grand  jury 
drawn  for  said  county,  there  to  testify  upon  oath  what  he  may  know 
touching  the  existence,  establishment  and  whereabouts  of  said  dis- 
tillery or  persons  who  have  sold  intoxicating  liquors  contrary  to  law, 
and  shall  give  the  names  and  personal  description  of  the  keepers 
thereof,  and  such  evidence,  when  so  obtained,  shall  be  considered 
and  held  in  law  as  an  information  on  oath  upon  which  the  grand 
jury  shall  make  presentment,  as  provided  by  law,  in  other  cases. 

1905,  c.  498,  sa.  6,  7. 

Note.     For  liability  of  iipglrcting  officers,  see  s.  .3520. 

3535.  Wine,  In  what  quantities;  where  drunk,   if  any  person 

shall  sell  wine  manufactured  from  fruit  or  grapes  grown  by  himself. 


3535  CKIMES— XZ/.  Liquors.  Ch.   81 

or  bouglit  from  the  growers  thereof,  in  quantities  less  than  one  gal- 
lon, except  to  churches  wishing  to  procure  wine  for  communion  serv- 
ices, or  if  any  person  shall  drink  or  permit  such  wine  to  he  drunk 
tipon  the  premises  where  bought,  he  shall  be  guilty  of  a  misde- 
meanor. 

1903,  c.  233,  s.  6. 

XXII.     Nationai.  Guard. 

3536.  Injuring  military  property.  If  any  person  shall  wantonly 
or  wilfully  injure  or  destroy  any  arms,  equipment  or  other  military 
property  of  the  state,  and  refuse  to  make  good  such  injiiry  or  loss,  or 
shall  sell,  dispose  of,  secrete  or  remove  the  same  with  intent  to  sell 
or  dispose  thereof,  he  shall  be  fined  not  more  than  one  hundred  dol- 
lars, or  imprisoned  not  more  than  six  months,  or  both. 

Code,  s.  3274;  1876-7,  c.  272,  s.  19. 

3537.  Member  of  national  guard  failing  to  return  property  of 

state.  If  any  member  of  the  North  Carolina  national  gaiard  shall 
wilfully  fail  to  return  any  property  of  the  state  or  the  United  States 
to  the  armory  or  other  phice  of  deposit,  when  notified  by  competent 
authority  so  to  do,  he  shall  be  guilty  of  a  misdemeanor  and  fined 
not  exceeding  fifty  dollars,  or  imprisoned  not  exceeding  thirty  days. 

3538.  Organizing  company  without  authority.   If  any  person 

shall  organize  a  military  company,  or  drill  or  parade  under  arras  as 
a  military  body,  except  under  the  militia  laws  and  regulations  of 
the  state,  or  shall  exercise  or  attempt  to  exercise  the  power  or 
authority  of  a  military  officer  in  this  state,  without  holding  a  com- 
mission from  the  governor,  he  shall  be  guilty  of  a  misdemeanor. 
1893,  c.  374,  s.  38. 

3539.  Placing  name  on  muster  roll  wrongfully.  If  any  officer 

of  the  militia  of  the  state  shall  knowingly  or  wilfully  place,  or  cause 
to  be  placed,  on  any  muster  roll  the  name  of  any  person  not  regularly 
or  lawfully  enlisted,  or  the  name  of  any  enlisted  man  who  is  dead 
or  who  has  been  discharged,  transferred,  or  has  lost  membership  for 
any  cause  ■whatsoe^'er,  or  who  has  been  convicted  of  any  infamous 
crime,  he  shall  be  guilty  of  a  misdemeanor. 
1893,  c.  374,  s.  33. 

3540.  Refusing  to  deliver  public  arms  to  officer  on  demand. 

Every  commissioned  ofiiccr  of  the  militia,  whenever  and  wherever 
he  shall  see  or  learn  that  any  of  the  arms  or  accoutrements  or  other 
military  property  belonging  to  the  state  is  in  the  possession  of  any 
person  other  than  in  whose  hands  they  may  be  placed  for  safe-keep- 
ing, under  the  provisions  of  the  law,  shall  make  immediate  demand 


3540  CEIMES— XZZ7.  National   Guard.  Ch.   81 

for  the  same  ijersonally  or  in  writing ;  and  slionld  snch  person  refuse 
tu  deliver  them  to  the  officer  he  shall  be  guilty  in  like  manner,  and 
punished  in  like  manner  as  for  selling  or  embezzling  public  arms. 
Code,  s.  3558;  R.  C,  c.  89,  s.  10;  1831,  c.  45,  s.  7. 

3541.  Selling  accoutrements.  If  any  person  shall  sell,  dispose  of, 
pawn  or  pledge,  destroy  or  injure,  or  wilfully  retain  after  demand 
made,  any  public  property  issued  for  the  purpose  of  arming  or 
equipping  the  militia  of  the  state,  he  shall  be  guilty  of  a  misde- 
meanor. 

Code,  s.  3274;  1893,  c.  374,  s.  30. 

3542.  Selling  public  arms.  If  any  person  to  whom  shall  be  con- 
fided public  arms  or  accoutrements,  shall  sell,  or  in  any  manner 
embezzle  the  same,  or  any  part  thereof,  or  if  any  person  shall  ])ur- 
chase  any  of  them,  knowing  them  to  be  such,  the  person  so  offending 
shall  be  guilty  of  a  misdemeanor. 

Code,  s.  3556;  K.  C,  c.  89,  s.  8;  1831,  e.  45,  s.  5. 

XXIII.     Navigation. 

3543.  Artificial  islands,  erecting.  If  any  person  shall  erect  arti- 
ficial islands  or  lumps  in  any  of  the  waters  of  the  state  east  of  the 
Wilming-ton  and  Weldon  railroad  and  Petersburg  and  Weldon  rail- 
road, he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  986;   1883,  c.  109. 

3544.  Boats,  tackle,  etc.,  removing.  If  any  person  shall  take 
away  from  any  landing  or  other  place  where  the  same  shall  be,  or 
shall  loose,  unmoor,  or  turn  adrift  from  the  same,  any  boat,  canoe, 
or  pettiagua,  oars,  paddles,  sails  and  tackle  belonging  to  or  in  the 
lawful  custody  of  any  person ;  or  if  any  person  shall  direct  the 
same  to  be  done  without  the  consent  of  the  0A\mer,  or  the  person 
having  the  custody  or  possession  of  such  boat,  canoe,  or  pettiagua, 
he  shall  forfeit  and  pay  to  such  owner,  or  person  having  the  custody 
and  possession  as  aforesaid,  the  sum  of  two  dollars,  and  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined  not 
exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty  days,  in 
the  discretion  of  the  court.  And  the  owner  may  also  have  his  action 
for  such  injury.  The  penalties  aforesaid  shall  not  extend  to  any 
person  who  shall  press  any  boat,  canoe  or  pettiagua  by  public 
authority. 

Code,  s.  2288;   1889,  c.  378;  R.  C,  c.  14,  ss.  1,  3. 

3545.  Buoys,  carelessly  dragging,  from  position.  If  any  person 

having  charge  of  any  raft  passing  any  buoy,  beacon  or  day  mark, 


3545  CRIMES— XZ/7/.  Navigation.  Ch.  81 

shall  not  exercise  due  diligence  in  keeping  clear  of  it,  or  if  unavoid- 
ably fouling  it,  shall  not  exercise  due  diligence  in  clearing  it,  without 
dragging  from  its  position  such  buoy,  beacon  or  day  mark,  he  shall 
be  guilty  of  a  misdemeanor,  and  j^unished  by  fine  not  to  exceed 
fifty  dollars. 

Code,  s.  3087;  1883,  c.  165,  s.  3. 

3546.  Buoys,  beacons,  etc.,  interfering  witii.   If  any  person 

shall  moor  any  vessel  of  any  kind  or  name  whatsoever,  or  any  raft 
or  any  part  of  a  raft,  to  any  buoy,  beacon  or  day  mark,  placed  in  the 
waters  of  North  Carolina  by  the  authority  of  the  United  States 
lighthouse  board,  or  shall  in  any  manner  hang  on  with  any  vessel 
or  raft,  or  part  of  a  raft,  to  any  such  buoy,  beacon  or  day  mark,  or 
shall  wilfully  remove,  damage  or  destroy  any  such  biioy,  beacon  or 
day  mark,  or  shall  cut  down,  remove,  damage  or  destroy  any  bea- 
con erected  on  land  in  this  state  by  the  authority  of  the  said  United 
States  lighthouse  board,  or  through  unavoidable  accident  run  down, 
drag  from  its  position  or  in  any  M'ay  injure  any  buoy,  beacon  or 
day  mark,  as  aforesaid,  and  shall  fail  to  give  notice  as  soon  as 
practicable  of  having  done  so,  to  the  lighthouse  inspector  of  the  dis- 
trict in  which  said  buoy,  beacon  or  day  mark  may  be  located,  or 
to  the  collector  of  the  port,  or,  if  in  charge  of  a  pilot,  to  the  collector 
of  the  port  from  which  he  comes,  he  shall  for  every  such  oilense  be 
guilty  of  a  misdemeanor  and  punished  by  a  fine  not  to  exceed  two 
hundred  dollars,  or  imprisoned  not  to  exceed  three  months,  or  both, 
at  the  discretion  of  the  court. 

Code,  s.  3085;  1858-9,  c.  58,  ss.  2,  3;  1883,  c.  165,  s.  1. 

3547.  Encumbering  docl<s  of  Wilmington.   If  any  person  shall 

encumber  any  of  the  public  docks  of  the  city  of  Wilmington  with 
logs,  hulks,  flats  or  barges,  trash  or  garbage  he  shall  be  giiilty  of 
a  misdemeanor,  and  upon  conviction  thereof  shall  be  fined  ten  dollars, 
and  if  the  encumbrance  be  not  removed  immediately  upon  notice  from 
the  harbor-master,  he  .shall  be  fined  ten  dollars  for  each  and  every 
day  thereafter  such  nuisance  shall  remain. 
1903,  c.  662,  s.  9. 

3548.  Failure  to  report  finding  wrecl<ed  property.  If  any  per- 
son shall  find  any  wrecked  or  stranded  ]iro])erty  on  or  near  the  sea- 
shore, and  no  person  be  present  to  claim  the  same,  and  such  finder 
shall  refuse  to  report  such  goods  found  he  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  lie  fined  not  more  than 
fifty  dollars,  or  imprisoned  not  more  than  thirty  days. 

1899,  e.  79,  s.  24. 


3549  CEIMES— XA'//7.  ^'avigaiion.  Ch.   81 

3549.  Flats  and  barges  removed  from  docks  on  order  of  har- 
bor-master. The  owner  of  any  rafts,  flats,  vessels  or  other  craft 
lying  alongside  of  any  wharf  or  wharves  or  before  the  entrance 
of  any  public  docks,  his  or  their  agents  or  servants,  shall,  iipon  notice 
from  the  harbor-master,  immediately  remove  the  same,  and  upon  his 
or  their  refusal  so  to  do,  it  shall  be  the  duty  of  the  harbor-master, 
and  he  is  hereby  authorized  and  directed,  after  notice  as  aforesaid 
to  the  owner  or  o^vners  thereof,  their  agents  or  servants,  forthwith 
to  cause  all  such  rafts,  flats,  vessels  or  other  craft  to  be  i-emoved  at 
the  cost  and  expense  of  such  owner  or  owners  or  their  agent  or 
agents,  and  the  owner  shall  be  guilty  of  a  misdemeanor. 

1903,  c.  662,  s.  3. 

3550.  Lighthouses;  anchoring  in  range  of.  If  the  master  of  any 

vessel  shall  anchor  on  the  range  line  of  any  range  of  lights  estab- 
lished by  the  United  States  lighthouse  board,  unless  such  anchorage 
is  unavoidable,  he  shall  be  guilty  of  a  misdemeanor,  and  punished 
by  a  fine  not  to  exceed  fifty  dollars. 

Code,  s.  30S6;    1883,  e.   165,  s.  2. 

3551.  Lumbermen  to  remove  obstructions  in  Albemarle  sound. 

If  any  lumberman  sluill  fail  to  reuidx-c  all  (il)-ri'ii<-tinns  phiccil  by 
him  in  the  waters  of  Albenuirlc  sound  anil  its  trilmtaries,  as  soon 
as  practicable,  after  they  have  ceased  to  use  them  for  the  purpose 
for  which  they  were  placed  in  said  waters,  from  all  places  where 
the  water  is  not  less  than  two  feet  deep,  and  also,  from  all  landing 
places  on  both  sides,  for  the  space  of  sixty  feet  from  the  shore  out- 
ward, he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than 
one  dollar  nor  more  than  fifty  dollars,  at  the  discretion  of  the 
court. 

Code,  s.  3303;  1880,  c.  37,  ss.  1,  2. 

3552.  Obstructing  harbor-master  of  Wilmington.  If  any  per- 
son shall  hinder,  delay,  obstruct  or  in  any  manner  wilfully  inter- 
fere with  the  harbor-master  of  Wilmington  in  the  discharge  of  his 
duty  he  shall  be  guilty  of  a  misdemeanor,  and  be  fined  not  more  tlnin 
fifty  dollars  or  imprisoned  not  more  tluin  thirty  days. 

1903,  c.  662,  s.  8. 

3553.  Obstructing  waters  of  Currituck  sound.  It  shall  be  un- 

la'w^ul  for  any  jierson  to  in]]iair  or  obstruct  na\-igation  in  tlie 
waters  of  Currituck  sound  and  tributaries,  and  all  persons,  cor- 
porations, companies,  or  clubs,  who  have  heretofore  had  placed  or 
placed  any  licdging  or  liedgings  across  the  mouth  of  any  bay, 
creek,  strait,  or  lead  of  water  in  Currituck  sound  or  tributaries,  nuide 
of  iron,  wire  or  wood  or  otherwise,  for  the  purpose  of  preventing  the 


3553  CRIMES— ZX/7/.  Xaviijation.  Cb.   81 

free  passage  of  boats  "or  vessels  of  aiiv  size  or  elnss,  or  to  stop  tbe 
public  Tise  of  any  such  bay,  creek,  strait  or  lead  of  water,  are  hereby 
required  to  forthwith  remove  the  same.  Any  person,  corporation, 
or  chib  having  violated  or  who  shall  violate  any  of  the  provisions 
of  this  section  shall  be  guilty  of  a  misdemeanor,  and  upon  convic- 
tion shall  be  fined  not  more  than  fifty  dollars  nor  less  than  ten  dol- 
lars, or  imprisoned  not  more  than  thirty  days,  at  the  discretion  of 
the  court. 
1897,  c.  277. 

3554.  Repairing  boats  in  public  docks  in  Wilmington.   If  any 

person  shall,  for  the  purpose  of  repair,  put  any  flat,  steamboat  or 
other  craft,  in  any  of  the  street  docks  of  the  city  of  Wilmington,  or 
shall,  for  the  jDiirpose  of  repair,  gTOund  any  such  flat,  steamboat  or 
other  craft  in  any  of  the  piiblic  docks  of  such  city  on  the  east  side 
of  the  Cape  Fear  river  between  Church  street  dock  and  Red  Cross 
street  dock,  he  shall  be  giiilty  of  a  misdemeanor,  and  shall  be  fined 
not  more  than  fifty  dollars,  or  imprisoned  not  more  than  thirty  days. 
1903,  e.  662,  s.  2. 

3555.  Seamen;  enticing  from  vessel.  If  any  person  shall  induce 

any  seaman,  in  the  employment  of  any  domestic  or  foreign  vessel, 
in  any  of  the  ports  of  North  Carolina,  to  leave  any  such  vessel  before 
his  term  of  service  shall  have  expired,  he  shall  be  giiilty  of  a  misde- 
meanor, and  fined  not  exceeding  fifty  dollars,  or  imprisoned  not 
exceeding  thirty  days. 

Code,  s.  1108;  1879,  c.  219,  s.  1;  1881,  c.  256,  s.  1. 

3556.  Seamen;  secreting  or  harboring.  If  any  person  shall  se- 
crete or  harbor  any  seaman  who  has  deserted  from  any  domestic  or 
foreign  vessel,  knowing  that  such  seaman  has  deserted,  he  shall  be 
guilty  of  a  misdemeanor,  and  be  fined  not  exceeding  fifty  dollars  or 
imprisoned  not  exceeding  thirty  days ;  and  if  such  seaman  be  found 
concealed  or  secreted  by  any  person  on  his  premises,  such  conceal- 
ment and  secretion  shall  be  deemed  prima  facie  evidence  that  such 
person  knew  that  such  seaman  was  a  deserter. 

Code,  s.  1109;  1879,  c.  219,  s.  2;  1881,  c.  256,  s.  2. 

3557.  Seamen;  search  warrants  for.   If  any  credible  witness 

shall  complain,  upon  oath  before  any  justice  of  the  peace,  that  any 
person  has  concealed  on  his  premises  any  seaman  who  has  deserted 
from  any  such  domestic  or  foreign  vessel,  it  shall  be  lawful  for  such 
justice  to  grant  a  search  warrant  to  be  executed  within  the  limits 
of  his  county  to  any  proper  officer,  authorizing  him  to  search  for 
such  seaman,  and  to  arrest  the  person  on  whose  premises  he  may  be 
found,  and  the  person  on  whose  premises  such  seaman  shall  be  found 


3557  GRUiES— XXIII.  Navigation.  Ch.  81 

shall  be  adjudged  to  pay  the  costs  of  such  search  warrant,  if  on 
exauiination  it  shall  appear  that  such  seaman  was  secreted  or  con- 
cealed by  such  person;  otherwise,  the  costs  shall  be  paid  by  the  party 
making  the  complaint. 

Code,  s.  1110;  1881,  c.  256,  s.  3. 

3558.  Seamen;  appeal,  and  procedure  thereon,  in  all  cases  aris- 
ing under  the  three  preceding  sections,  if  any  appeal  is  prayed  bj' 
either  party  at  the  time  of  liie  trial,  it  shall  be  granted ;  but  no 
appeal  shall  be  granted  by  any  justice  at  any  time  after  the  final 
hearing  of  the  case.  In  case  an  appeal  is  prayed  at  the  trial,  it  shall 
be  the  duty  of  the  justice  to  proceed  immediately  to  reduce  the  testi- 
mony of  any  witness  whose  testimony  is  material  to  writing  (if  such 
witness  shall  be  master,  officer,  or  seaman  on  board  of  any  vessel), 
in  the  presence  of  the  adverse  party,  who  may  cross-question  such 
witness,  which  testimony  shall  be  subscribed  by  such  witness  and 
returned  by  the  justice  Avith  the  papers  in  the  case ;  and  on  the  hear- 
ing in  the  appellate  court,  the  testimony  so  taken  and  reduced  to 
writing  by  said  justice  shall  be  read,  heard  and  accepted  as  the  true 
and  lawful  testimony  of  such  witness,  as  if  such  person  were  in 
I^erson  present  to  give  evidence.  For  reducing  such  testimony  to 
writing  the  justice  shall  receive  the  same  fees  as  are  allowed  for 
taking  depositions. 

Code,  s.  1111;  1881,  e.  256,  ss.  4,  5. 

3559.  Streams,  obstructing.  If  any  person  shall  wilfully  fell 
any  tree,  or  wilfully  put  any  cbstruction,  except  for  the  purposes  of 
utilizing  water  as  a  motive  poAver,  in  any  branch,  creek  or  other  natu- 
ral passage  for  water,  whereby  the  natural  ilow  of  water  through 
such  passage,  is  lessened  or  retarded,  and  whereby  the  navigation  of 
such  stream  by  any  raft  or  Hat  may  be  impeded,  delayed  or  pre- 
vented, the  person  so  offending  shall  be  guilty  of  a  misdemeanor, 
and  fined  not  to  exceed  fifty  dollars,  or  imprisoned  not  to  exceed 
thirty  days.  Nothing  in  this  section  shall  prevent  the  erection  of 
fishdams  or  hedges  which  do  not  extend  across  more  than  two-thirds 
of  the  width  of  any  stream  where  erected,  but  if  extending  over  more 
than  two-thirds  of  the  width  of  any  stream,  the  said  penalties  shall 
attach. 

Code,  s.  1123;   1872-3,  c.  107,  ss.  1,  2. 

3560.  Streams  navigable,  obstructing;  pilot  failing  to  give  in- 
formation. If  any  person  shall  cast  or  throw  from  any  vessel,  into 
the  navigable  waters  of  Carteret  or  Onslow  counties,  of  Tar  or  Pam- 
lico river,  or  into  the  navigable  waters  of  the  (^ipe  Fear,  or  any 
other  river  in  the  state,  or  into  auv  ciiauucl  of  navigable  water  else- 


3560  CRIMES— A'Z7/Z.  Navigation.  Ch.   81 

where  than  in  a  river,  any  ballast,  stone,  shells,  earth,  trash  or  other 
substance  likely  to  be  injurious  to  the  navigation  of  such  vsraters, 
rivers,  or  channel ;  or  if  any  person  shall  wilfully  pull  down  any 
beacon,  stake  or  other  mark,  erected  or  placed  by  virtue  of  any  by- 
law, order  or  regulation,  passed  or  ordained  by  any  commissioners 
of  navigation,  he  shall  be  guilty  of  a  misdemeanor  and  shall  forfeit 
and  pay  two  hundred  dollars,  to  be  recovered  for  the  use  of  the  com- 
missioners in  whose  waters  the  offense  was  committed.  If  any 
pilot  shall  knowingly  suffer  any  such  unlawful  act  to  be  done,  and 
shall  not  within  ten  days  thereafter  give  to  the  said  commissioners, 
or  one  of  them,  information  thereof,  such  pilot  shall  likewise  be 
guilty  of  a  misdemeanor;  and,  besides  the  usual  punishment  of  such 
offense,  on  conviction,  shall  be  forever  incapable  of  acting  as  a  pilot 
in  the  state. 

Code,  ss.  3537,  3538;  E.  C,  e.  85,  ss.  40,  41;  1833,  c.  146;  1784,  c.  206,  s.  11; 
R.  S.,  c.  88,  sa.  23,  24,  45;  1811,  c.  839;  1842,  c.  65,  s.  4;  1846,  c.  60,  s.  3. 

3561.  Streams;  obstructing  passage  of  boats  on.  If  any  person 

shall  obstruct  the  free  passage  of  boats  along  any  river  or  creek, 
by  felling  trees,  or  by  any  other  means  whatever,  he  shall  be  guilty 
of  a  misdemeanor. 

Code,  s.  3711;  R.  C,  e.  100,  s.  6;  1796,  c.  460,  s.  2. 

3562.  Violating  chapter  on  wrecks.  If  any  person  shall  violate 
any  of  the  provisions  of  the  chapter  entitled  Wrecks,  he  shall  be 
guilty  of  a  misdemeanor. 

1899,  c.  79,  s.  26. 

Note.     See  chapter  Wrecks,  vol.  2. 

3563.  Wrecl<s,  commissioner  of,  violating  law.  If  any  com- 
missioner of  wrecks  shall  by  fraud  f^)r  wilful  neglect  violate  any  of 
the  provisions  of  the  chapter  entitled  Wrecks,  or  abuse  the  trust 
reposed  in  him,  he  shall  forfeit  and  pay  double  the  amount  of  dam- 
ages to  the  party  aggrieved,  and  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  shall  forfeit  his  oiRce  and  shall  thereafter  be 
incapable  of  acting  as  commissioner. 

1899,  c.  79,  s.  25. 

3564.  Wrecks,  resisting  commissioner  of.  If  any  person  shall 

wilfully  and  unlawfully  resist,  delay  or  obstruct  any  commissioner 
of  wrecks  in  discharging  or  attempting  to  discharge  his  duties  as 
such  commissioner,  he  shall  be  guilty  of  a  misdemeanor. 
1905,  c.  66,  s.  2. 

XXIV.     Officers. 

3565.  Acting  without  qualifying.  If  any  officer  shall  enter  on 
the  duties  of  his  office  before  he  executes  and  delivers  to  the  author- 


3565  CEIMES— XZ7K  Ofjicers.  Ch.  81 

ity  entitled  to  receive  the  same,  the  bonds  required  by  law,  and  qiial- 
iiies  by  taking  and   subscribing  and  tiling  in  the   proper  office  the 
oath  of  oifice  prescribed,  he  shall  be  guilty  of  a  misdemeanor  and 
shall  be  ejected  from  his  office. 
Code,  s.  79. 

3566.  Board  of  charities  furnished  information.  If  the  board 

of  commissioners  of  any  county  or  the  justices  of  the  peace  of  any 
township,  or  any  officer  or  employee  of  any  charitable  or  penal  insti- 
tution of  the  state  shall  fail,  refuse  or  neglect  to  furnisli  any  infor- 
mation required  by  law  to  be  furnished  to  the  board  of  public  chari- 
ties of  North  Carolina,  when  they  have  been  provided  with  the  nec- 
essary blank  forms  for  such  rej3orts,  or  shall  fail  upon  request  to 
afford  proper  facilities  for  the  examination  of  any  charitable  or 
penal  institution  of  the  state,  they  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  2341;  1891,  c.  491,  s.  2;  1869-70,  c.  154,  s.  3. 

3567.  Bodies  for  dissection.  If  any  person  shall  fail  or  refuse 
to  perform  any  duty  imposed  upon  him  by  the  law  providing  for 
distribution  of  dead  bodies  for  dissection  in  medical  schools,  he  shall 
be  guilty  of  a  misdemeanor  and  fined  not  exceeding  one  hundred 
dollars. 

1903,  e.  666,  s.  6. 

3568.  Bribery  of.  if  any  person  holding  office  under  the  laws  of 
this  state  who,  except  in  payment  of  his  legal  salary,  fees  or  per- 
quisites, shall  receive,  or  consent  to  receive,  directly  or  indirectly, 
anytliing  of  value  or  personal  advantage,  or  the  promise  thereof,  for 
performing  or  omitting  to  perform  any  official  act,  or  with  the 
express  or  implied  understanding  that  his  official  action,  or  omission 
to  act,  is  to  be  in  any  degree  influenced  thereby,  he  shall  be  guilty 
of  a  felony,  and  punished  by  imprisonment  in  the  state's  prison  for 
a  term  not  exceeding  five  years,  or  fined  not  exceeding  five  thousand 
dollars,  or  both,  in  the  discretion  of  the  court. 

Code,  s.  991;  1868-9,  c.  176,  s.  2. 

3569.  Bribe,  offering  to.  If  any  person  shall  offer  a  bribe, 
whether  it  be  accepted  or  not,  he  shall  be  guilty  of  felony,  and  pun- 
ished by  imprisonment  for  a  term  not  less  than  one  year  nor  more 
than  five  years  in  the  state's  prison  or  county  jail,  in  the  discretion 
of  the  court. 

Code,  s.  992;   1S70-1,  c.  232. 

3570.  Bribery  of  legislator.  If  any  person  shall  directly  or  indi- 
rectly promise,  offer  or  gi\(',  or  cause,  or  procure  to  be  promised, 
offered   or  given,   any   niduey,   goods,    liri1)i\    i)rescnt  or  reward,   or 


3570  CRIMES— XX/7.  Oy^ccj-s.  Ch.  81 

any  promise,  contract,  undertaking,  obligation  or  security  for  the 
payment  or  delivery  of  any  money,  goods,  right  of  action,  bribe, 
present  or  reward,  or  any  other  valuable  thing  whatever,  to  any 
member  of  the  senate  or  house  of  representatives  of  this  state  after 
his  election  as  such  member,  and  either  before  or  after  he  shall  have 
qualified  and  taken  his  seat,  with  intent  to  influence  his  vote  or 
decision  on  any  question,  matter,  cause  or  proceeding  which  may 
then  be  pending  before  the  general  assembly,  or  which  may  come 
before  him  for  action  in  his  capacity  as  a  member  of  the  general 
assembly,  said  person  so  offering,  promising  or  giving,  or  causing 
or  procuring  to  be  promised,  offered  or  given  any  such  money,  goods, 
bribe,  present  or  reward,  or  any  bond,  contract,  imdertaking,  obliga- 
tion or  security  for  the  payment  or  delivery  of  any  money,  goods, 
bribe,  present  or  reward,  or  other  valuable  thing  whatever,  and 
the  member-elect  who  shall  in  anywise  accept  or  receive  the  same 
or  any  part  thereof  shall  be  giiilty  of  a  felony,  and  fined  not  exceed- 
ing double  the  amount  so  offered,  promised  or  given,  and  impris- 
oned in  the  state's  prison  not  exceeding  five  years,  and  the  person 
convicted  of  so  accepting  or  receiving  the  same,  or  any  part  thereof, 
shall  forfeit  his  seat  in  the  general  assembly  and  be  forever  dis- 
qualified to  hold  any  office  of  honor,  trust  or  profit  under  this  state. 
Code,  s.  2852;  1868-9,  c.  176,  s.  5. 

3571.  Buying  and  selling  offices.  If  any  person  shall  bargain 
or  sell  an  office  or  deputation  of  an  office,  or  any  part  or  parcel 
thereof,  or  shall  take  money,  reward,  or  other  profit,  directly  or  indi- 
rectly, or  shall  take  any  promise,  covenant,  bond  or  assurance  for 
money,  reward  or  profit,  for  an  office  or  the  deputation  of  an  office, 
or  any  part  thereof,  which  office  or  any  part  thereof  shall  touch 
or  concern  the  administration  or  execution  of  justice,  or  the  receipt, 
collection,  control,  or  disbursement  of  the  public  revenue,  or  shall 
concern  or  touch  any  clerkship  in  any  court  of  record  wherein  jus- 
tice is  administered;  or  if  any  person  shall  give  or  pay  money, 
reward  or  profit,  or  shall  make  any  promise,  agreement,  bond  or 
assurance  for  any  of  the  said  offices,  or  for  the  deputation  of  any  of 
them,  or  for  any  part  of  them,  the  person  so  offending  in  any  of 
the  cases  aforesaid  shall  be  guilty  of  a  misdemeanor,  and  on  convic- 
tion thereof  shall  forfeit  all  liis  right,  interest  and  estate  in  such 
office,  and  every  part  and  parcel  thereof,  and  shall  be  imprisoned 
and  fined  at  the  discretion  of  the  court. 

Code,  s.  998;  R.  C,  c.  34.  s.  33;  5,  6  Edw.  VI.,  e.  16,  ss.  1,  5. 

3572.  Contracting  for  own  benefit.  If  any  person,  appointed  or 
elected  a  commissioner  or  director  to  discharge  any  trust  wherein 
the  state  or  any  county,  city,  or  town  may  be  in  any  manner  inter- 


3572  CEIMES— ZA7F.   Ofjicers.  Ch.  SI 

ested,  shall  become  an  undertaker,  or  make  any  contract  for  his  o\\ti 
benefit,  under  such  authority,  or  be  in  any  manner  concerned  or 
interested  in  making  such  contract,  or  in  the  profits  thereof,  either 
privately  or  openly,  singly  or  jointly  with  another,  he  shall  be  guilty 
of  a  misdemeanor. 

Code,  s.  1011;  R.  C,  e.  34,  s.  38;  1825,  c.  1269;  1826,  c.  29. 

3573.  County  commissioner  approving  bond  known  to  be  in- 
sufficient. If  any  county  couuuissicjiifr  shall  approve  any  otficial 
bond  which  he  knows  or  believes  to  be  insutticieut  in  the  penal  sum, 
or  in  the  security  thereof,  he  shall  be  guilty  of  a  misdemeanor,  and 
on  conviction  shall  be  removed  from  office  and  forever  disqualified 
from  holding  or  enjoying  any  office  of  honor,  trust  or  profit  under 
the  state. 

Code,  s.  1880;   1869-70,  c.  169,  s.  7. 

3574.  County  commissioners  not  heating  jail.   If  any  county 

commissioner  shall  fail  to  have  the  common  jails  so  heated  by  fur- 
naces, stoves,  or  otherwise,  as  to  render  them  warm  and  comfortable, 
he  shall,  upon  conviction,  be  punished  by  a  fine  or  imprisonment,  or 
both,  in  the  discretion  of  the  court. 
Code,  s.  784;  1879,  c.  25. 

3575.  Counties,  cities,  etc.,  speculation  in  claims  against,  if 

any  clerk,  sheriff,  register  of  deeds,  county  treasurer,  or  other  county, 
city,  town  or  state  officer  shall  engage  in  the  purchasing  of  any 
county,  city,  town  or  state  claim  at  a  less  price  than  its  full  and  true 
value,  or  at  any  rate  of  discount  thereon,  or  be  interested  in  any 
speculation  in  any  such  claims,  he  sliall  be  guilty  of  a  misdemeanor, 
and  fined  or  imprisoned,  and  also  shall  be  liable  to  removal  from 
office  at  the  discretion  of  the  court. 

Code,  s.  1009;  1868-9,  c.  260. 

3576.  Duty;  failure  to  discharge.  If  any  state  or  county  officer 
shall  fail,  neglect  or  refuse  to  make,  file  or  publish,  any  report, 
statement  or  other  paper,  or  to  deliver  to  his  successor  all  books  and 
other  property  belonging  to  his  office,  or  to  pay  over  or  deliver  to 
the  proper  person  all  moneys  which  come  into  his  hands  by  virtue 
or  color  of  his  office,  or  to  discharge  any  duty  devolving  upon  him 
by  virtue  of  his  office  as  he  is  by  law  required  to  do,  he  shall  be 
guilty  of  a  misdemeanor. 

3577.  Escape;   officer  indictable  for;  proof.  If  any  person 

charged  with  a  crime  or  sentenced  by  the  court  upon  conviction  of 
any  ofi'onse,  sliall  be  legally  committed  to  any  sheriff,  constable  or 
jailer,  or  shall  be  arrested  by  any  sheriff,  deputy  sheriff  or  coroner 


3577  CRIMES— A' A71'.   Uf)h-ers.  Ch.   si 

afiting  as  sheriff,  by  \-irtiie  of  any  ea])ias  issuing  un  a  bill  nf  indict- 
ment, information,  or  other  criminal  jiroceeding,  and  such  sheriff, 
deputy  sheriff,  coroner,  constable  or  jailer,  wilfully  or  negligently, 
shall  suffer  such  person,  so  charged,  or  sentenced  and  committed, 
to  escape  out  of  his  custody,  the  sheriff',  deputy  sheriff,  coroner,  con- 
stable or  jailer  so  offending,  being  thereof  convicted,  shall  be  re- 
moved from  office,  and  fined  or  imprisoned,  or  both,  at  the  discretion 
of  the  court  before  whom  the  trial  may  be  had  ;  and  in  all  such  cases 
it  shall  be  sufficient,  in  support  of  the  indictment  against  such  sheriff' 
or  other  officer,  to  prove  that  such  person  so  charged  or  sentenced  was 
committed  to  his  custody,  and  it  shall  lie  upon  the  defendant  to  show 
that  such  escape  was  not  by  bis  consent  or  negligence,  but  that  he  had 
used  all  legal  means  to  prevent  the  same,  and  acted  with  proper  care 
and  diligence:  Provided,  that  such  removal  of  a  sheriff'  shall  not  aff'ect 
his  d^ity  or  power  as  a  collector  of  the  public  revenue,  but  be  shall 
proceed  on  such  duty  and  be  accountable,  as  if  such  conviction  and 
removal  had  not  been  had. 

Code,  s.  1022;  K.  C,  e.  34,  s.  35;  1791,  c.  343,  s.  1 ;  1905,  c.   350. 

3578.  Ex-justice  of  the  peace  failing  to  turn  over  bool<s  and 

papers,  if  any  justice  of  the  jic;iep,  on  expiration  of  his  tenu  of 
office,  or  if  any  personal  representative  of  a  deceased  justice  of  the 
peace,  shall,  after  demand  upon  him  by  the  clerk  of  the  stiperior 
,  court,  wilfully  fail  and  refuse  to  deliver  to  the  clerk  of  the  superior 
court  all  dockets,  law  and  other  books,  and  all  official  papers  which 
came  into  his  hands  by  virtue  or  color  of  his  office,  he  shall  be  guilty 
of  a  misdemeanor. 

Code,  ss.  828,  829:   1885.  o.  402. 

3579.  Failure  to  file  report  of  fines.   If  any  officer  who  is  by 

law  required   to  file  any  reptort  or  statement  of  fines  or  penalties 
with  the  county  linard  of  education,  shall  fail  so  to  do  nt  or  before 
the  time  fixed  by  law  for  the  filing  of  such  report,  be  shall  be  guilty 
of  a  misdemeanor. 
1901,  c.  4.  s.  62. 

3580.  Falsely  acting  as  inspector,   if  any  person,  who  is  not  a 

legal  or  sworn  inspector  of  lumber  or  other  articles,  pi-esume  to  act 
as  such,  he  shall  forfeit  and  pa,y  one  hundred  dollars,  and  be  guilty 
of  a  misdemeanor. 

Code,  s.  304G;  R.  C,  c.  GO.  s.  09;  1824,  c.  1254,  s.  3. 

3581.  Habeas  corpus;  recommitting  one  discharged  thereon. 

If  any  person  shall  knowingly  again  imprison  or  detain  one  who  has 
been  set  at  large  upon  any  writ  of  habeas  corpus,  for  the  same  cause, 
other  than  by  the  legal  process  or  order  of  the  court  wherein  he  shall 

Rev.  Vol.  1—63  1057 


3581  CRIMES— XZ/F.   Oflicers.  Cli.   81 

be  boTind  by  recognizance  to  appear,  or  of  any  other  conit  having 
jurisdiction  in  the  case,  he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  1651;  1868-9,  c.  IIG,  s.  26. 

3582.  Habeas  corpus;  false  return  to  writ.  If  any  person  shall 

make  a  fal^^c  return  to  a  M'rit  of  habeas  corpus,  he  shall  be  guilty  of 
a  misdemeanor. 

Code,  s.   1653;    1868-9.  c.   116,  s.  28. 

3583.  Habeas  corpus;  concealing  party  entitled  to  writ,  if  any 

one  having  in  his  custody,  or  under  his  jiowcr,  any  ]iarty,  who,  by  law, 
would  be  entitled  to  a  writ  of  habeas  corpus,  or  for  whose  relief  such 
writ  shall  have  been  issued,  sliall,  with  intent  to  elude  the  service 
of  such  writ,  or  to  avoid  the  effect  thereof,  transfer  the  party  to  the 
custody,  or  put  him  under  the  power  of  control,  of  another,  or  shall 
conceal  or  change  the  place  of  his  confinement,  or  shall  knowingly 
aid  or  abet  another  in  so  doing,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  1654.  1655;   1868-9,  c.  116,  ss.  29,  .30. 

3584.  Homestead;  failure  to  allot,  if  any  officer  making  a  levy 
under  an  execution  shall  refuse  or  neglect  to  summon  and  qualify 
appraisers  to  allot  a  homestead,  or  a  personal  property  exemption 
when  demanded,  or  shall  unlawfully  levy  upon  the  homestead  set 
apart  by  apprai.sers,  or  shall  fail  to  make  due  return  of  his  proceed- 
ings, he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  516;   1868-9,  c.  137,  s.  17. 

3585.  Homestead;  officers,  appraisers  and  debtor  conspiring. 

Any  officer,  appraiser  or  assessor  who  shall  wilfully  or  corruptly 
conspii'e  with  anj-  judgment  debtor  or  other  appraiser  or  assessor  to 
undervalue  the  homestead  or  personal  property  exemption  of  such 
debtor,  or  shall  assign  false  metes  and  bounds,  or  make  or  jirocure 
to  be  made  a  false  and  fraudulent  return  tliereof.  shall  be  guilty  of 
a  misdemeanor. 

Code,  s.  517;   1868-9,  e.  1.37,  s.  IS. 

3586.  Homestead;  officers,  appraisers  and  creditors  conspir- 
ing. If  any  officer,  ajipraiser  or  assessor  sliall  wilfully  or  corruptly 
conspire  with  any  judgment  creditor,  or  other  ap]iraiser  or  assessor, 
to  overvalue  the  liomestcad  or  personal  property  exemiition  of  any 
debtor  or  applicant,  or  shall  assign  false  metes  and  boundaries,  or 
make,  or  procure  to  be  made,  false  and  frnudul(Mit  roluiMi  thereof, 
he  shall  be  guiltv  of  a  misdemeanor. 


Code,  s.  518;  1868-9,  c.  137,  s.  19. 
Note.     For  civil  liability,  see  s.  690. 


1058 


3587  CRIMES— XZ7F.  Oificers.  Ch.   si 

3587.  Insolvent  taxpayers,  failure  to  publish  list  of.    If  any 

slieritf  or  tax  collectur  shall  fail  to  jniblish  a  list  of  delinquent  tax- 
payers in  his  coTinty  as  required  by  law,  he  shall  be  guilty  of  a  mis- 
demeanor and  fined  not  less  than  ten  nor  more  than  one  hundred 
dollars. 

Code,  s.  2092;  187U-7,  c.  78.  ss.  l-.S. 

3588.  Justice  of  the  peace  refusing  to  furnish  bill  of  costs.  If 

any  justice  of  the  peace  before  whom  any  trial  is  held  shall  refuse  to 
furnish  an  itemized  bill  of  costs,  when  demanded  by  the  plaintiff  or 
defendant,  he  shall  be  guilty  of  a  misdemeanor,  and  n]iou  cunvietion 
shall  be  punished  at  the  discretion  of  the  court. 

Code,  s.  734;   1887,  e.  297. 

3589.  Justice  of  the  peace  acting  after  removal  from  township, 

or  before  qualifying.  If  any  justice  of  the  peace  shall  act  as  such 
after  lla^•ing  removed  out  of  his  township  and  not  returned  for  six 
months,  unless  re-elected  or  reappointed,  or  shall  act  as  such  without 
qualifying  as  required  by  law,  he  shall  be  guilty  of  anrndcmeanor. 
Code,  s.  822. 

3590.  Neglect  of  duty  by  commissioner.  If  any  county  commis- 
sioner shall  neglect  to  perform  any  duty  required  of  him  by  law 
as  a  member  of  the  board,  he  shall  be  guilty  of  a  misdemeanor,  and 
shall  also  be  liable  to  a  penalty  of  two  hundred  dollars  for  each 
offense,  to  be  paid  to  any  person  who  shall  sue  for  the  same. 

Code.  s.  711. 

3591.  Nonresident  insane  person;  justice  or  clerk  knowingly 

committing,  if  any  clerk  or  justice  of  the  peace  shall  knowingly 
commit  t<i  any  hospital  a  person  who  is  not  a  bona  fide  citizen  and 
resident  of  this  state,  he  shall  be  guilty  of  a  misdemeanor,  and,  upon 
conviction  shall  be  fined  or  imjirisoucil  at  the  discretion  of  the  court. 
1890.  c.  1.  B.  IS. 

3592.  Officer  failing  to  discharge  duties.  If  any  clerk  of  any 

court  of  record,  sheriff,  justice  of  the  peace,  county  commissioner, 
county  surveyor,  coroner,  treasiirer,  constable  or  official  of  any  of 
the  state  institutions,  or  of  any  county,  city  or  town,  shall  wilfully 
omit,  neglect  or  refuse  to  discharge  any  of  the  duties  of  his  office,  for 
default  Avhcreof  it  is  not  elsewhere  provided  that  he  shall  be  indicted, 
he  shall  be  guilty  of  a  misdemeanor.  And  if  it  shall  be  proved 
that  STich  officer,  after  his  qualification,  shall  have  wilfully  and  cor- 
ruptly omitted,  neglected  or  refused  to  discharge  any  of  the  duties  of 
his  said  office,  or  shall  have  wilfully  and  corruptly  violated  his  oath 
of  office  according  to  the  true  intent  and  meaning  thereof,  such  offi- 


:].-,92  CRIMES— AM'Zr.   Officers.  Cli.   M 

cer  shall  be  guilty  of  misbehavior  in  office,  and  shall  be  punished  bv 
removal  therefrom  under  the  sentence  of  the  court  as  a  part  of  the 
punishment  for  the  offense;  and  slinl]  also  be  lined  or  imprisoned  in 
the  discretion  of  the  court. 
1901,  c.  270,  s.  2. 

Xole.     For  penult}-,  acting  witlioiit  bond,  see  s.  278. 

3593.  Officer  failing  to  discharge  duties  in  regard  to  pensions. 

If  any  officer  or  other  ]iersun  shall  noiileet  or  refuse  to  discharge  the 
duties  imposed  upon  him  by  law  in  regard  to  pensions  of  Confederate 
soldiers,  he  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
shall  be  lined  or  imprisoned,  at  the  discretion  of  the  court. 
1889,  c.  198,  s.  15. 

3594.  Officer  falling  to  pay  over  fines,  penalties,  etc.  if  any  offi 

cer  who  receives  or  collects  a  tine,  penalty  or  forfeiture  in  behalf  of 
the  state,  or  any  tax  imposed  on  licenses  to  retailers  of  winos,  cor- 
dials, malt  or  spirituous  liquors,  and  aiu>ti(incers,  shall  not,  witliiu 
thirty  days  after  such  reception  or  collection,  pay  over  and  account 
for  the  same  to  the  treasurer  of  the  county  board  of  education  for  the 
benefit  of  the  fund  for  common  schools  in  such  county,  he  shall  be 
guilty  of  embezzlement,  and  may  be  punished  not  exceeding  five 
years  in  the  state's  prison,  and  fined,  at  the  discretion  of  the  court. 

Code,  s.  3678;   1872-3,  c.  144.  snhc.  6,  ss.  fi,  7;   1S83,  c.  136,  s.  48. 

3595.  Officers  of  public  institutions  and  other  enterprises  in 
which  state  has  interest  failing  to  make  true  report,   if  any  presi 

dent  or  other  chief  officer  of  any  railroad,  canal  or  other  public  works 
of  internal  improvement  in  which  the  state  owns  an  interest  shall  fail 
to  nuike  a  true  report  of  the  affairs  of  his  company,  as  is  required  by 
section  four  thousand  eight  hundred  and  forty;  or  if  any  super- 
intendent or  other  chief  officer  of  any  state  or  public  institution, 
charitable,  penal  or  educational,  in  which  the  state  has  or  owns  an  in- 
terest, except  the  higher  educational  institutions  that  are  not  also 
charitable,  shall  fail  to  make  a  true  report  of  the  affairs  of  his  institu- 
tion, as  is  required  by  section  four  thousand  eight  hundred  and  forty- 
one,  he  shall  be  guilty  of  a  misdemeanor,  and  be  fined  not  less  than 
one  thousand  dollars  nor  more  than  five  thousand  dollars,  or  be  im- 
prisoned not  less  than  one  nor  more  than  five  years  at  hard  labor  in 
the  state's  prison. 

Code,  s.  1693;  1868-9,  c.  270,  s.  100:  1874-5,  c.  502,  s.  2. 

3596.  Officers  ordering  females  to  work  In  chaingang.    If 

any  officer,  either  judicial,  executive  or  ministerial,  shall  order  or 
require  the  working  of  any  female  on  the  streets  or  roads  in  any 


ij.v.Ki  CRIMES— XX/T'.   Officers.  Ch.   SI 

group  or  chaiii-gang  in  this  state,  lie  shall  be  deemed  guilty  of  a 
niisdemeanor. 
1897,  c.  270. 

3597.  Penalty  for  failing  to  make,  or  for  refusing  copy  of,  com- 
mitment. If  any  person,  to  whom  a  writ  of  habeas  corpus  is  directed, 
shall  neglect  or  refuse  to  make  due  return  thereto,  or  to  bring  the 
body  of  the  party  detained  according  to  the  command  of  the  writ 
without  delay,  or  shall  not,  within  six  hours  after  demand  made 
therefor,  deliver  a  copy  of  the  commitment  or  cause  of  detainer,  such 
person  shall,  upon  conviction  on  indictment,  be  fined  one  thousand 
dollars,  or  imjjrisoned  not  exceeding  twelve  months,  and  if  such 
person  be  an  officer,  shall  moreover  be  removed  from  office. 

Code,  s.   1652;    1868-9.   c.   116,  .-s.   27. 

3598.  Public  laws;  custodians  of,  etc.,  disposing  of,  or  refusing 

to  deliver  to  successor.  It  shall  be  the  duty  of  the  clerk  of  the 
superior  court  of  each  county,  and  every  other  person  to  whom  the 
acts  of  the  general  assembly,  supreme  court  reports,  or  other  public 
documents  are  transmitted  or  de]iosited  for  the  use  of  the  county 
or  the  state,  to  safely  keep  the  same  in  their  respective  offices ;  and 
if  any  such  person  having  the  custody  of  such  books  and  documents, 
for  the  uses  aforesaid,  shall  negligently  and  wilfully  dispose  of  the 
same,  by  sale  or  otherwise ;  or  refuse  to  deliver  over  the  same  to  his 
successor  in  office,  he  shall  be  guilty  of  a  misdemeanor,  and  pun- 
islied  by  fine  or  imprisfinment,  or  both,  at  the  discretion  of  the  court. 
Coflc.  s.   107.-!;    1S81,  c.   1.51. 

3599.  Register  of  deeds  failing  to  discharge  duties.    If  any 

register  of  deeds  fails  to  ])erform  any  of  the  duties  imposed  or 
authorized  by  law,  he  shall  be  gniilty  of  a  misdemeanor,  and  besides 
other  punishments  at  the  discretion  of  the  court,  he  shall  be  removed 
from  office. 

Code.  .36o9:    1S6S.  o.  3.5.  <<.    is. 

3600.  Register  of  deeds  failing  to  index  instruments.   If  any 

register  of  deeds  shall  fail  to  provide  and  keep  in  his  office  full  and 
complete  al])habetical  indexes  of  the  names  of  the  parties  to  all  liens, 
grants,  deeds,  mortgages,  bonds  and  other  instruments  of  writing- 
required  to  be  registered  (said  indexes  to  be  kept  in  well-bound 
books,  and  shall  state  in  full  the  names  of  all  the  parties,  whether 
grantors,  gTantees,  vendors,  vendees,  obligors  or  obligees,  and  shall 
be  indexed  and  cross-indexed,  so  as  to  show  the  name  of  each  party 
under  the  ap]n-opriate  letter  of  the  alphabet,  and  reference  shall  be 
made  opposite  each  name  to  the  page,  title  or  number  of  the  book 
in  which  is  registered  any  such  lien,  deed,  bond,  conveyance  or  other 


3600  CKIMES— A'A'/T'.   Officers.  Cli.   si 

iiistnimeiit),  or  shall  fail  within  tweuty-four  hours  after  registering 
any  such  instrument  to  index  the  same  as  above  provided,  he  shall 
be  guilty  of  a  misdemeanor. 

Code,  s.  3664;  1899,  c.  501 ;  1S76-7,  o.  93,  s.  1. 

3601.  Refusing  to  turn  over  official  papers  to  person  adjudged 

entitled  to  office,  if  a  pcrsnu  against  whom  a  judgment  has  been 
rendered  in  an  action  brought  ti)  recover  a  public  oitice  shall  fail  or 
refuse  to  tuni  over,  on  demand,  to  the  person  adjudged  to  be  entitled 
to  such  office,  all  papers,  documents  and  books  belonging  to  such 
office,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  612;  C.  C.  P.,  372. 

3602.  Sheriff  failing  to  return  venire  facias,  if  any  sheriff  shall 

fail  to  duly  execute  and  return  any  writ  of  venire  facias,  he  shall 
be  fined  by  the  court  not  exceeding  one  hiindred  dollars. 

Code,  s.  1740;  K.  C,  c.  35,  s.  31;   1830,  o.  27,  s.  2. 

3603.  Sheriff  or  jailer  failing  to  obey  commitment  from  ad- 
joining county.  If  any  sheriff'  or  jailer  shall  refuse  to  obey  any  order 
of  commitment  nuide  by  a  justice  of  the  peace  or  other  proper  officer 
of  an  adjoining  county  in  M-hich  there  is  no  jail,  or  an  unfit  or  inse- 
cure jail,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  ss.  .3457.  34.58;  R.  C,  c.  87.  ss.  2,  3;   1835,  c.  2,  ss.  1,  2. 

3604.  Sheriff  or  other  officer  failing  to  return  process.  If  any 

sheriff",  constable,  or  other  officer,  A\hcther  state  or  municipal,  or 
any  person  Avho  shall  presume  to  act  as  any  such  officer,  not  being 
by  law  authorized  so  to  do,  refuse  or  neglect  to  return  any  precept, 
notice,  or  process,  to  him  tendered  or  delivered,  which  it  is  his  duty 
to  execute,  or  make  a  false  return  thereon,  he  shall  forfeit  and  pay  tt) 
any  one  who  will  sue  for  the  same  one  hundred  dollars,  and  shall 
moreover  be  guilty  of  a  misdemeanor. 

Code,  s.  1112;  R.  C,  c.  34,  s.  118;  1818,  e.  980,  s.  3;  1827,  e.  20,  s.  4. 

3605.  Swearing  falsely  to  report,  if  any  clerk,  sheriff,  register 
of  deeds,  county  commissioner,  county  treasurer,  justice  of  the  peace, 
constable,  or  other  county  officer  shall  wilfully  swear  falsely  to  any 
report  or  statement  required  by  law  to  be  made  or  filed,  concerning 
or  touching  the  county,  state  or  school  revenue,  he  shall  be  guilty 
of  a  misdemeanor. 

Code,  s.  731:   1874-5,  c.   151,  s.  4;   1876-7,  e.  276,  s.  4. 

3606.  Treasurer  of  state;  fraudulent  entries  and  statements  by. 

If  the  treasurer  of  the  state  sliall  wittingly  or  falsely  make,  or  cause 
to  be  made,  any  false  entry  or  cluirge  in   any  honk  k(']it  by  him  as 


3006  CKIMES— XX/F.   Officers.  Ch.   81 

treasurer,  or  shall  wittingly  or  falsely  form,  or  procure  to  be  formed, 
any  statement  of  the  treasury,  to  be  by  him  laid  before  the  governor, 
the  general  assembly,  or  any  committee  tliereof,  or  to  be  by  him  used 
in  any  settlement  which  he  is  required  to  make  with  the  auditor,  with 
intent,  in  any  of  said  instances,  to  defraud  the  state  or  any  person, 
such  treasurer  shall  be  guilty  of  a  misdemeanor,  and  fined,  at  the 
discretion  of  the  court,  not  exceeding  three  thousand  dollars,  and 
imprisoned  not  exceeding  three  years. 

Code,  s.   1119;   R.  C,  c.  34,  s.  68. 

3607.  Town  aldermen  failing  to  appoint  inspectors.  If  the  alder- 
men or  commissioners  of  auj'  city  or  town  shall  fail  or  refuse  to  ap- 
point a  chief  of  the  fire  department,  or  shall  fail  or  refuse  to  rea- 
sonably remunerate  him,  they  shall  be  guilty  of  a  misdemeanor. 
This  section  shall  not  apply  to  the  aldermen  or  commissioners  of 
any  city  or  town,  where  such  city  or  town  is  by  law  exempt  from 
the  law  regulating  and  controlling  the  erection  and  inspection  of 
buildings. 

1905,  c.  506,  s.  4. 

3608.  Town  officers  failing  to  establish  fire  limits.  If  the  alder- 
men or  commissioners  of  any  city  or  town  shall  fail  or  refuse  to  es- 
tablish and  define  the  fire  limits  for  such  town  according  to  law, 
they  shall  be  giiilty  of  a  misdemeanor.  This  section  shall  not  apply 
to  aldermen  or  commissioners  of  those  towns  which  are  exempt  from 
the  law  governing  the  inspection  of  buildings. 

1905,  c.  506,  s.  7. 

3609.  Town  officers  failing  to  pay  over  taxes  monthly.  If  any 

constable  or  collector  of  taxes  for  any  tmvn  or  city,  or  any  other  ofli- 
cer,  shall  fail  to  make  settlement  and  full  return  of  all  moneys,  pen- 
alties and  fines  coming  into  his  hands  each  month  with  the  town  or 
city  treasurer,  or  other  officer  authorized  to  receive  the  same,  he  shall 
be  giiilty  of  a  misdemeanor. 

Coile,  s.  3814;   1879.  c.   194,  s.  2;   1881.  c.  37. 

3610.  Town  officers;  inspection  of  buildings,   if  any  chief  of 

any  fire  department  or  local  inspector  of  buildings  shall  fail  to  per- 
form the  duties  required  of  him  by  law  or  shall  give  a  certificate  of 
inspection  without  first  making  the  inspection  required  by  law,  or 
shall  improperly  give  a  certificate  of  inspection,  he  shall  be  guilty 
of  a  misdemeanor.  This  section  shall  not  apply  in  towns  exempt 
from  the  law  governing  the  inspection  of  buildings. 

1905,  e.  506,  s.  5. 


.■'.(Ill  CUI.MKS-  .V.\l'.   /'njiinj.  Ch.  81 

XXV.     Perjuky. 

3611.  Before  legislative  committee,    if  any  person  shall  wil- 

fuUj  and  corruptly  swear  falsely  to  any  fact  material  to  the  investi- 
gation (if  Miiy  matter  before'  any  eomniittee  of  either  house  of  the 
genera]  assembly,  he  shall  be  subject  to  all  the  pains  and  penalties 
of  wilful  and  corrupt  perjury,  and,  on  conviction  in  the  superior 
court  of  "Wake  county,  shall  be  confined  in  the  state's  prison  for  the 
time  prescribed  by  law  for  perjury. 

CoiU..   s.   2Sr>7:    1869-70,  c.   3,   s.   4. 

3612.  Court-martial,    if  any  person  shall  wilfully  and  corruptly 

swear  falsely  before  any  court-martial,  touching  and  concerning  any 
matter  or  thing  cognizable  before  such  court-mai-tial,  he  shall  l)e 
liable  to  the  pains  and  penalties  of  perjury. 

Code,  s.  3235;  R.  C,  c.  70.  ■<.  7.1:   1812,  c.  828.  s.  :!. 

3613.  False  oath  to  wrong  a  laborer,  if  any  contractor,  steve- 
dore or  boss  stevedoi'e  shall  make  any  false  oath  or  false  representa- 
tion with  intent  to  wrong,  cheat  or  defraud  any  laborer  as  contem- 
plated in  the  provisions  and  purview  of  the  chapter  entitled  Liens, 
he  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  sliall 
be  punished  as  is  uoav  prescribed  by  law  for  perjury. 

1887,  c.  U5,  s.  5. 

3614.  Insolvent  debtor.  If  any  insolvent  or  ini))risoned  debtor 
take  any  oath  prescribed  in  the  chapter  entitled  Insolvent  Debtors, 
falsel}'  and  corruptly,  and  upon  indictment  of  iierjui-y  be  convicted 
thereof,  he  shall  suffer  all  the  jiains  of  perjury,  and  he  shall  never 
after  have  any  of  the  benefits  of  that  chapter,  but  may  be  sued  and 
imprisoned  as  though  he  had  never  been  discharged. 

Code,  s.  20(34;  R.  C,  c.  59,  s.  2.5:   1793,  c.   lOO,  <.   10:   ISfiS  9.  .-.  102,  s.  23. 

3615.  Offense  of.  if  any  person  shall  wilfully  and  corruptly  com- 
mit perjury,  on  his  oath  or  affirmation,  in  any  suit,  controversy,  mat- 
ter or  cause,  de])euding  in  any  of  the  courts  of  the  state,  ur  in  any 
deposition  or  affidavit  taken  pursuant  to  law,  or  in  any  oath  or  affir- 
mation duly  administered  of  or  concerning  any  matter  or  thing 
whereof  such  jievson  is  lawfully  required  to  be  sworn  or  affirmed, 
every  person  so  offending  shall  be  guilty  of  a  misdemeanor  and  fined 
not  exceeding  one  thousand  dollars,  and  imprisoned  in  the  county 
jail  or  state's  ])rison  not  less  than  four  months  nor  more  tlian  ten 
years. 

Code.  s.  1092:  R.  ('..  r.   34,  s.  49;  1791,  c.  338,  s.  1. 
1064 


:;i;i(3  CRIMES— A'Xr.   I'erjun).  Ch.   81 

3616.  Subornation  of.  If  any  person  shall,  by  any  means,  pro- 
iMire  auiitlici-  pei'suii.  t<i  cnnnnit  such  wilful  antl  eovrupt  perjurv  as 
is  mentioned  in  the  preceding  section,  the  person  so  offending  shall 
be  punished  in  like  manner  as  the  person  committing  the  perjury. 

Code.  s.   1093;  1!.  C,  c.  34,  s.  50;   1791,  e.  338,  s.  2. 

3617.  Trust  for  benefit  of  creditors;  false  oath.  If  any  creditor 

of  the  maker  of  a  deed  of  trust  fV>r  the  Ijenelit  uf  creditors  shall  know- 
ingly swear  falsely  in  the  statement  of  the  amoimt  claimed  by  him 
required  by  law  to  be  filed  with  the  trustee,  he  shall  be  guilty  of  a 
misdemeanor. 


1893,  c.  453,  ss.  6,   7. 
Note.     See  Conveyances. 


XXVI.     Person. 


3618.  Abortion;  destroying  child;  intent.   If  any  person  shall 

wilfully  administer  to  any  woman,  either  pregnant  or  qiiick  with 
child,  or  prescribe  for  any  such  w^onian,  or  advise  or  procure  any 
such  woman  to  take  any  medicine,  drug  or  substance  whatever,  or 
shall  use  or  employ  any  instrument  or  other  means  with  intent 
thereby  to  destroy  said  child,  unless  the  same  shall  have  been  neces- 
sary to  preserve  the  life  of  such  mother,  he  shall  be  guilty  of  a 
felony,  and  imprisoned  in  the  state's  ju'ison  for  not  less  than  one 
year  nor  more  than  ten  years,  and  be  fined  at  the  discretion  of  the 
court. 

Code,  s.  975;    1881,  c.   351,  s.   1. 

3619.  Abortion;  destroying  woman;  intent.  If  any  person  shall 

administer  to  anv  pregnant  woman,  or  prescribe  for  any  such  wo- 
man, or  advise  and  procure  such  woman  to  take  any  medicine,  drug 
or  anything  whatsoever,  with  intent  thereby  to  procure  the  miscar- 
riage of  any  such  woman,  or  to  injure  or  destroy  such  woman,  or 
shall  use  any  instrument  or  application  for  any  of  the  above  pur- 
poses, he  shall  be  guilty  of  a  felony,  and  imprisoned  in  the  jail 
or  state's  prison  for  not  less  than  one  year  nor  more  than  five  years, 
I  and  be  fined,  at  the  discretion  of  the  court. 

Code,   s.   976;    1881.   c.    351,   s.   2. 

I  3620.  Assault,  punishment  for.  In  all  cases  of  an  assault,  with 
or  without  intent  to  kill  or  injure,  the  person  convicted  shall  be  pun- 

I  ished  by  fine  or  imprisonment,  or  both,  at  the  discretion  of  the  court: 
Provided,  that  where  no  deadly  weapon  has  been  used  and  no  seri- 
ous damage  done,  the  punishment  in  assaults,  assaults  and  batteries, 
and  aflfrays,  shall  not  exceed  a  fiuie  of  fifty  dollars  or  imprisonment 


3620  CKniES— .Y.V17.  Prrso,,.  Vh.  s[ 

for  thirty  days;  but  this  proviso  sliall  not  aii])ly  to  eases  of  assault 
with  intent  to  kill,  or  with  intent  to  commit  rape. 

Code,  s.  987;   1870-1,  e.  4.'),  s.  2;   187;!  4,  c.  176.  s.  0:   1870.  c-.  92,  ss.  2,  6. 

3621.  Assault  in  secret  manner,  if  any  person  siuill  maliciously 

commit  an  assault  and  battery  with  any  deadly  weapon  upon  another 
by  waylaying  or  otherwise,  in  a  secret  manner,  with  intent  to  kill 
such  other  person,  he  shall  be  guilty  of  a  felony  and  punishable  by 
imprisonment  in  jail  or  the  penitentiary  f<ir  not  less  than  twelv(» 
months  nor  more  than  twenty  years,  or  by  a  fine  not  exceeding  two 
thousand  dollars,  or  both,  in  the  discretion  of  the  court. 
1887,  c.  32. 

3622.  Assault;  pointing  gun.  If  any  per.son  shall  point  any  gun 
or  pistol  at  any  person,  either  in  fun^or  otherwise,  whether  such 
gun  or  i^istol  be  loaded  or  not  loaded,  he  shall  be  guilty  of  an  assault, 
and  upon  conviction  of  the  same  shall  be  fined,  imprisoned,  or  both, 
at  the  discretion  of  the  court. 

1889,  c.  527. 

3623.  Birth  of  Cllild,  concealing.  If  any  person  shall,  by  secretly 
burying  or  otherwise  disposing  of  the  dead  body  of  a  new-born  child, 
endeavor  to  conceal  the  birth  of  such  child,  such  person  shall  1h> 
guilty  of  a  felony,  and  punished  by  fine  or  imprisonment,  or  both, 
such  imprisomnent  to  be  in  the  county  jail  or  state's  prison,  at  the 
discretion  of  the  court:  Provided,  that  the  imprisonment  in  the 
state's  prison  shall  in  no  case  exceed  a  term  of  ten  years:  Provided 
further,  that  nothing  in  this  section  shall  be  construed  to  prevent 
the  mother,  who  may  be  guilty  of  the  homicide  of  her  child,  from 
being  prosecuted  and  punished  for  the  same  according  to  the  princi- 
ples of  the  common  law.  And  any  person  aiding,  counseling  or 
abetting  any  woman  in  concealing  the  liivth  of  her  child,  shall  be 
guilty  of  a  misdemeanor. 

Code,  s.  1004;  R.  C,  e.  34,  s.  28;  181S.  t-.  985;  1883,  t-.  390;  21  .Tac.  I.,  c.  27; 
43  Geo.  III.,  c.  .58,  s.  3;  9  Geo.  IV.,  c.  31.  s.  14. 

3624.  Carnal  knowledge  of  married  woman  by  personating 

husband,  if  any  JHTSDU  sluill  li;i\c  earn;!!  kimwledgc  of  ;uiy  ni;n'- 
ried  woman  by  frau<l  in  jjcrsonating  lier  liusband,  he  shall  be  guilty 
of  a  felony,  and  punished  by  imprisonment  in  the  state's  prison  at 
hard  labor  not  less  than  ten  nor  more  than  twenty  year.s. 

Code.  s.  1103;   1881,  c.  89.  s.  1. 

3625.  Carnal  knowledge  of  married  woman;  attempt.   Every 

person  convicted  of  an  ;issault  u])on  iiny  married  woman,  \\'ith  intent 
to  have  knowledge  of  lici'  by  friind   in  ]i('rson;it  ing  her  liiisli:md,  sliall 


;5(;l>5  CRI.MES— A"A"17.  Person.  Ch.  81 

be  punished  by  imprisonment  in  the  state's  prison  at  hard  hibor  not 
less  than  five  nor  more  than  fifteen  years. 

Code,  s.   1104;    1881.  e.  89.  s.  2. 

3626.  Castration  or  maiming  without  malice  aforethought.  If 

any  person  shall,  on  purpose  and  unlawfully,  but  without  malice 
aforethought,  cut  or  slit  the  nose,  bite  or  cut  off  a  no.se,  lip  or  ear,  or 
disable  any  limb  or  member  of  any  other  person,  or  castrate  any 
other  person,  or  cut  off,  maim,  or  disfigure  any  of  the  privy  mem- 
bers of  any  other  person,  with  intent  to  kill,  maim,  disfigure,  disable 
or  render  impotent  such  person,  the  person  so  offending  shall  be 
imprisoned  in  the  county  jail  or  state's  prison  not  less  than  six 
months  nor  more  than  ten  year.s,  and  fined,  in  the  discretion  of  the 
court. 

Code,  s.  1000:  R.  C,  c.  .34,  s.  47;  17-54,  c.  56;  1791.  c.  3.39,  ss.  2,  3;  1831,  c. 


3627.  Castration  with  malice,  if  any  person,  of  malice  afore- 
thought, shall  unlawfully  castrate  any  other  person,  or  cut  off,  maim, 
or  disfigure  any  of  the  privy  members  of  any  person,  with  intent  to 
murder,  maim,  disfigure,  disable  or  render  impotent  such  person, 
the  person  so  offending  shall  suffer  imprisonment  in  the  state's 
jH-ison  for  not  less  than  five  nor  more  than  sixty  years. 

Code,  s.  999;  R.  C,  c.  34,  s.  4;  1831,  e.  40.  s.  1;  1868-9,  c.  167,  s.  6. 

3628.  Dueling;  sending,  accepting,  bearing  challenge.   If  any 

person  shall  send,  acccjit  or  bear  a  challenge  to  tight  a  duel,  though 
no  death  ensue,  he,  and  all  such  as  counsel,  aid  and  abet  him,  shall 
be  guilty  of  a  misdemeanor,  and,  moreover,  be  ineligible  to  any  office 
of  trust,  honor  or  profit  in  the  state,  any  ])ardon  or  reprieve  not- 
withstanding. 

Code,  s.  1012:  R,  C.  c.  :U,  >.  4S  ;   1S(12.  i-.  608.  s.  1, 

3629.  Duel,  death  in;  murder.  If  any  person  fight  a  duel  in  con- 
sequence of  a  challenge  sent  or  received,  and  either  of  the  parties 
shall  be  killed,  then  the  survivor,  on  conviction  thereof,  shall  suffer 
death ;  and  all  their  aiders  or  abettors  shall  be  considered  accessories 
before  the  fact. 

Code,  s.  101.3;  R.  ('.,  e.  .34,  s.  3;   1802,  c.  008,  s.  2. 

3630.  Enticing  minors  out  of  the  state.  If  any  person  shall  em- 
ploy and  carry  beyond  the  limits  of  this  state  any  minor,  or  shall 
induce  any  minor  to  go  beyond  the  limits  of  this  state  for  the  pur- 
pose of  employment  without  the  consent  in  writing,  duly  authenti- 
cated, of  the  parent,  guardian  or  other  person  having  authority  over 
such  minor,  he  shall  be  guilty  of  a  misdemeanor,  and  on  conviction 


nn.lO  CULMKS— A'ZF/.  Person.  Cli.   SI 

thereof  shall  be  fiiipil  not  less  than  five  hnnilred  and  not  more  than 
one  thousand  dollars 'for  each  offense.  The  fact  of  the  employment 
and  going  out  of  the  state  of  the  minor,  or  of  the  going  out  of  the 
state  by  the  minor,  at  the  solicitation  of  the  person  for  the  purpose  of 
employment,  shall  be  prima  facie  evidence  of  knowledge  that  the 
person  employed  or  solicited  to  go  beyond  the  limits  of  the  state  is  a 
minor. 

1891,  c.  45. 

3631.  Homicide;  murder  in  the  first  degree,  second  degree.  A 

murder  which  shall  be  perpetrated  by  means  (if  jioison,  lying  in 
wait,  imprisonment,  starving,  tortnre,  or  by  any  other  kind  of  wilfiil, 
deliberate  and  premeditated  killing,  or  which  shall  be  committed  in 
the  perpetration  or  attempt  to  perpetrate  any  arson,  rape,  robbei-y, 
burglary  or  other  felony,  shall  be  deemed  to  be  mnrder  in  the  first 
degree  and  shall  be  punished  with  death.  All  other  kinds  of  mnrder 
shall  be  deemed  mnrder  in  the  second  degree,  and  shall  lie  punished 
with  imprisonment  of  not  less  than  two  nor  more  than  thirty  years 
in  the  state's  prison. 
1893,  c.  85;   1S93,  c.  281. 

3632.  Homicide;  manslaughter,  if  any  jierson  shall  .(innnii  the 

crime  of  manslanghter  he  shall  be  punished  by  imprisomnent  in 
the  county  jail  or  .state's  prison  not  less  than  four  months  nor  more 
than  twenty  years. 

Code,  s.  1055;   1879,  c.  2.55;  1!.  C.  c.  34.  s.  24;  4  Hen.  VII..  c   13:   l.SKi.  c.  918. 

3633.  Homicide;  manslaughter,  second  offense,   if  any  person. 

having  been  convicted  (if  the  crime  (if  ni;inshiiii:hlt'r  and  sentenced 
tiiereon,  shall  be  convicted  of  a  second  crime  of  the  like  nature,  he 
shall  be  imprisoned  in  the  state's  prison  not  less  than  five  nor  more 
than  sixty  years ;  and  in  every  such  case  of  conviction  for  such  sec- 
ond offen.se,  the  ])rior  conviction  of  tlie  same  ]K'rson  and  sentence 
thereon  may  be  shown  to  the  court. 

Code,   s.    105(i;    K.    ('..   c    ;!4.    ■^.    25. 

3634.  Kidnapping.  If  any  ])erson  shall  forcibly  i>v  fraudulently 
kidnap  any  ]iirs(iii,  he  shall  be  guilty  of  a  fehmy,  :md  upon  convic- 
tion may  be  ])unished  in  the  discretion  of  the  court,  not  exceeding 
twenty  j'ears  in  the  state's  prison. 

1901,  C-.  099,  s.   1. 

3635.  Libel,  communicating,  to  newspaper,  if  any  person  shall 

state,  deliver  (ir  tr:iiisiiiii  liy  any  means  whatever,  to  the  nninager, 
e(lil(ir,  pnlilislicr  (ir  iv|i(ii-lcr  nf  any  newspaiicr  m-  periodical  for  puh- 
lic;ili(iH  llicrcin  any   fulsc  .•iiid   lilicldiis  -lalcnicnl  c(iuccruing  ;iny  per- 


3035  CKI-MES— .YA'17.  Fcrsoii.  Cli.   SI 

siiu  in-  CMriKiratiiiii,  iiikI  tlien.'by  secure  llie  imlilieiitioii  of  the  same,  he 
shall  be  guilty  of  a  iiiisdenieanor. 

1901,  c.  557,  ss.  2,  3. 

Note.     For  punislimcnt  of  libel  by  newspaper,  see  Libel  and  Slander,  s.  201j. 

3636.  Maiming.  If  any  person  shall,  of  malice  aforethought, 
\iiilawfully  cut  out  or  disable  the  tongue  or  put  out  an  eye  of  any 
person,  with  intent  to  murder,  maim  or  disfigure,  the  person  so 
offending,  his  counselors,  abettors  and  aiders,  knowing  of  and  privy 
to  the  offense,  shall,  for  the  first  oft'ense,  be  ]junished  by  imprison- 
ment in  the  state's  prison  or  county  jail  not  less  than  four  months 
nor  more  than  ten  years,  and  be  fined,  in  the  discretion  of  the  court; 
and  for  the  second  oft'ense  shall  be  imprisoned  in  the  state's  prison 
not  less  than  five  nor  more  than  sixty  years. 

Code.  s.  1080;  R.  C,  c.  34,  s.  14;  1754.  c.  56;  1701,  e.  330,  s.  1;  1831,  e.  12; 
22  and  23  Car.  II.,  c.  1,  (Coventry  act). 

3637.  Rape.  Every  )ierson  who  is  convicted  of  ravishing  and 
carnally  knowing  any  female  of  the  age  of  ten  years  or  more  by 
force  and  against  her  will,  or  who  is  convicted  of  unlawfully  and 
carnally  knowing  and  abusing  any  female  child  under  the  age  of 
ten  years,  shall  suffer  death. 

rode.  s.  1101;  E.  C,  c.  34,  s.  5;  18  Eliz.,  c.  7:  1868-9,  c.  167,  s.  2. 

3638.  Rape,  assault  with  intent  to  commit.  Every  person  con- 
victed of  an  assault  witli  intent  to  coniniit  a  rape  upon  the  body  of 
any  female,  shall  be  imprisoned  in  tlie  state's  jirison  not  less  than 
five  nor  more  than  fifteen  years. 

Code,  s.  1102;  1868-9,  o.  107,  s.  3:  R.  C.  c.  107,  s.  44;  1823,  c.  1229. 

3639.  Rape  and  buggery;  proof.  It  shall  not  be  necessary  upon 
the  trial  of  any  indictment  for  the  oft'enses  of  rape,  carnally  know- 
ing and  abusing  any  female  child  under  ten  years  of  age,  and  bug- 
gery, to  prove  the  actual  emission  of  seed  in  order  to  constitute  the 
offense,  but  the  oft'ense  shall  be  completed  upon  proof  of  penetra- 
tion only. 

Code,  s.   1105;    1800-1,  c  30. 

3640.  Slander  of  innocent  woman.  If  any  person  shall  attempt, 
in  a  wanton  and  malicious  manner,  to  destroy  the  reputation  of  an 
innocent  woman,  by  words  written  or  spoken,  which  amount  to  a 
charge  of  incontinency,  every  person  so  offending  sliall  be  guilty  of 
a  misdemeanor. 

Code,  s.   1113;    1S79,  e.    150. 


3041  CROIES— XXT7Z.  Professions.  Cli.   81 

XXVII.        PnOFESSIONS. 

3641.  Clerks,  justices,  etc.,  practicing  law.  If  any  clerk  of  the 

superior  or  siqircine  court,  or  any  deputy  or  assistant  clerk  of  said 
courts,  or  any  justice  of  the  peace,  or  any  county  commissioner  shall 
practice  law  in  any  of  the  state  courts,  he  shall  be  guilty  of  a  mis- 
demeanor and  lined  not  less  than  two  hundred  dollars. 

Code,  ss.  27,  28,  110;  1870-1,  e.  90;  1883,  c.  406;  1871-2,  c.  120:  1880,  c.  4:!; 
C.  C.  v.,  s.  424. 

3642.  Dentistry;  practicing,  without  license.  If  any  i>erson  shall 

practice  dentistry,  except  extracting  teeth,  without  having  tirst 
passed  the  examination  and  obtained  the  certificate  provided  by  law, 
he  shall  be  guilty  of  a  misdemeanor,  and  fined  twenty-five  dollar.s : 
Provided,  any  person  so  convicted  shall  not  be  entitled  to  sue  for  or 
recover  any  fee  or  charge  for  dental  service  in  any  court,  and  any 
sum  of  money  paid  to  a  person  so  convicted  for  dental  services  ren- 
dered may  be  recovered  by  the  person  so  paying  the  same,  or  his  legal 
representative :  Provided  further,  no  one  applying  for  a  license  to 
practice  dentistry  shall  be  denied  such  license  on  account  of  race, 
color  or  previous  condition  of  servitude. 
Code,  ss.  3154,  3156:  1879,  c.  139,  ss.  7,  0. 

3643.  Dentistry;  falsely  claiming  to  hold  license.  If  any  per- 
son shall  knowingly  and  falsely  claim  or  pretend  to  have  or  hold 
a  certificate  of  proficiency  granted  by  the  board  of  examiners  of 
the  ISTorth  Carolina  Dental  Society,  he  shall  be  guilty  of  a  misde- 
meanor, and  upon  con\-iction  shall  be  fined  not  more  than  fifty  dol- 
lars nor  less  than  twenty-five  dollars  for  each  offense. 

1887,  e.  178,  s.  4. 

3644.  Embalming  without  license.    If  any  person  shall  practice 

or  hidd  himself  out  as  [iracticing  the  art  of  embalming,  without  iiav- 
ing  com]:)lied  -with  the  provisions  of  the  law  as  to  license,  lie  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall  be  fined 
not  less  than  fifty  nor  more  than  one  hundred  dollars  for  each  offense. 
1901,  0.  3;i8,  s.   14. 

3645.  Medicine;  practicing,  without  license.  If  any  person  shall 

]Dractice  medicine  or  surgery  in  this  state  for  fee  or  reward,  M'ith- 
out  first  having  obtained  license  from  the  board  of  examiners  of 
the  medical  society  of  North  Carolina,  he  shall  not  only  not  be 
entitled  to  sue  for  or  recover  before  any  court  any  medical  bill 
for  services  rendered  in  the  practice  of  medicine  or  surgery,  or 
any  of  the  branches  thereof,  but  shall  also  be  guilty  of  a  misde- 
meanor,   and    n])on   conviction    tlicreof   sliall    he   fined   not   less    than 


3(145  CR  r:\fES— A' A'17/.   Professions.  Ch.   81 

hventy-fivG  dollars  nor  more  than  one  linndred  dollars,  or  impris- 
oned, at  the  discretion  of  the  conrt,  for  each  and  every  offense:  Pro- 
vided, that  this  section  shall  not  be  constrned  to  apply  to  women 
who  pursne  the  vocation  of  a  midwife:  And  provided  fnrther,  that 
this  section  shall  not  apply  to  any  reputable  physician  or  surgeon 
resident  in  a  neighboring  state  coming  into  this  state  for  consulta- 
tion with  a  registered  physician  resident  herein.  I>ut  this  proviso 
shall  not  apply  to  physicians  resident  in  a  neighboring  state  regu- 
larly practicing  in  this  state:  Provided,  that  this  section  shall  not 
apply  to  physicians  who  have  a  diploma  from  a  regular  medical  col- 
lege and  were  practicing  medicine  and  surgery  in  this  state  prior 
to  the  seventh  day  of  IMarch,  one  thousand  eight  hundred  and  eighty- 
five. 

1885,  c.  117,  s.  2;   188"),  c.  261;   1889,  c.  181,  ss.  1,  2. 

3646.  Medicine;  practicing,  without  registering,  if  any  person 

shall  practice  or  attempt  to  practice  medicine  or  surgery  in  this  state 
without  first  having  registered  and  obtained  the  certificate  from  the 
clerk  of  the  superior  court  as  required  by  law,  he  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined  not  less  than 
twenty-five  dollars  nor  more  than  one  hundred  dollars,  or  be  impris- 
oned at  the  discretion  of  the  court,  for  each  and  every  offense:  Pro- 
vided, this  section  shall  not  apply  to  women  pursuing  the  vocation 
of  midwife,  nor  to  reputable  physicians  or  surgeons  resident  in  a 
neighboring  state  coming  into  this  state  for  consultation  with  a  regis- 
tered physician  of  this  state. 
1889,  0.  181,  s.  5. 

3647.  Medicine;  clerl<  of  superior  court  registering  doctor  of, 

illegally.  If  any  clerk  of  the  superior  court  shall  register,  or  issue  a 
certificate  to,  any  person  practicing  medicine  or  surgery  in  any  other 
numner  than  that  prescribed  by  law,  he  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  fined  not  less  than  two 
hundred  dollars  and  shall  be  removed  from  office. 

1889,  c.  181,  s.  0. 

3648.  Pharmacy;  adulterating  drugs.   If  any  person  engaged 

in  the  sale  of  drugs,  chemicals  and  medicines  shall  intentionally 
adulterate,  or  cause  to  be  adulterated,  or  exposed  to  sale,  know- 
ing the  same  to  be  adidterated,  any  drugs,  chemicals  or  medical 
preparations,  he  shall  be  guilty  of  a  misdemeanor  and  liable  to  a  fine 
not  exceeding  one  hundred  dollars,  and  in  addition  thereto  his  name 
shall  be  stricken  from  the  register  of  licensed  pharmacists,  provided 
he  be  a  licensed  pharmacist. 

Code,  s.  3145;  1897,  c.  182,  s.  7;  1881,  c.  .355,  s.  11 ;  1905,  c.  108,  s.  3. 

1071 


3649  CRIMES— -Y-AH'//.  Profes.sio„s.  Ch.   s] 

3649.  Pharmacist  compounding  prescriptions  without  license. 

If  any  person,  not  being  licensed  as  a  iiharniacist,  shall  eoniponnd, 
dispense  or  sell  at  retail  any  drng,  medicine,  poison  or  pharmaceuti- 
cal preparation,  either  npon  a  physician's  prescription  or  otherwise, 
and  any  person  being  the  owner  or  manager  of  a  drug  store,  phar- 
macy or  other  place  of  business,  who  shall  cause  or  permit  any  one 
not  licensed  as  a  pharmacist  to  dispense,  sell  at  retail  or  compound 
any  drug,  medicine,  poison  or  physician's  prescription  contrary  to 
the  provisions  of  chapter  ninety-five,  siibchapter  Pharmacists,  he- 
shall  be  deemed  gTiilty  of  a  misdemeanor,  and  lined  not  less  than 
twenty-five  nor  more  than  one  hundred  dollars. 
1905,  e.  108,  s.  24. 

3650.  Pharmacist  doing  business  without  license.  If  any  per- 
son, not  being  licensed  as  a  pharmacist,  shall  conduct  or  manage  any 
drug  store,  pharmacy  or  other  place  of  business  for  the  compounding, 
dispensing  or  sale  at  retail  of  any  drugs,  medicines  or  poisons,  or 
for  the  compounding  of  physicians'  prescriptions  contrary  to  the 
provisions  of  chapter  uinetj'-fivc,  subchapter  Pharmacists,  he  shall 
be  deemed  guilty  of  a  misdemeanor,  and  he  fined  not  less  than 
twenty-five  nor  more  than  one  hundred  dollars,  and  each  week  such 
drug  store  or  pharmacy  or  other  place  of  business  is  so  unlawfully 
conducted  shall  be  held  to  constitute  a  separate  and  distinct  offense. 

1905,  c.  108,  s.  23. 

3651.  Pharmacist  not  displaying  license,  if  any  person,  king 

the  holder  of  a  license  or  permit  gTanted  under  the  provisions  of 
chapter  ninety-five,  subchapter  Pharmacists,  .shall  fail  to  expose 
such  license  or  permit,  or  renewal  thereof,  in  a  conspicuous  position 
in  the  jjlace  of  business  to  which  such  permit  or  license  relates,  or 
in  which  the  holder  thereof  is  employed,  contrary  to  the  provisions 
of  such  subchapter,  he  shall  be  guilty  of  a  misdemeanor,  and  fined 
not  less  than  five  nor  more  than  twenty-five  dollars,  and  each  day 
that  such  license,  permit,  or  renewal  thereof,  shall  not  be  exposed  shall 
be  held  to  constitute  a  separate  and  distinct  offense. 
1905,  c.  108,  s.  26;  1897,  c.  187,  s.  6. 

3652.  Pharmacist,  not  licensed,  using  title.  If  any  person,  not 

being  legally  licensed  as  a  iiliarmacist,  shall  take,  use  or  exhibit  the 
title  of  pharmacist,  licen.sed  or  registered  pharmacist,  druggist,  apoth- 
ecary or  any  other  title,  name  or  description  of  like  import,  contrary 
to  the  provisions  of  section  four  thousand  four  hundred  and  eighty- 
six,  he  shall  bo  guilty  of  a  misdemeanor,  and  be  fined  not  less  than 
twenty-five  nor  more  than  one  hundred  dollars. 
1905,  c.  108,  s.  29. 


3653  CRIMES— ZXF/7.  Professions.  Ch.   81 

3653.  Pharmacist  not  renewing  license.  If  any  person,  being  a 

holder  of  a  license  or  pcniiit  granted  under  chapter  ninety-five, 
subchapter  Pharmacists,  shall,  after  tlie  expiration  of  such  license 
or  permit,  and,  without  renewing  the  same,  continiie  to  carry  on  the 
business  for  which  such  license  or  permit  was  granted,  contrary  to 
the  provisions  of  section  four  thousand  four  hundred  and  eighty-four, 
he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than  five  nor 
more  than  twenty-five  dollars. 
1905,  c.  108,  s.  27. 

3654.  Pharmacist  obtaining  license  fraudulently,  if  any  per- 
son shall  make  any  fraudulent  or  false  representations  for  the  pur- 
pose of  procuring  a  license  or  permit,  or  renewal  thereof,  either  for 
himself  or  for  another,  he  shall  be  gaiilty  of  a  misdemeanor,  and 
fined  not  less  than  twenty-five  nor  more  than  one  hundred  dollars, 
and  if  any  person  shall  wilfully  make  a  fal?e  affidavit  or  any  other 
false  or  fraudulent  representation  for  the  purpose  of  procuring  a 
license  or  permit,  or  renewal  thereof,  either  for  himself  or  for  an- 
other, he  shall  be  deemed  gnilty  of  perjury,  and  upon  conviction 
thereof  shall  be  subject  to  like  punishment  as  is  now  prescribed  for 
the  crime  of  perjury. 

1905,  0.  108,  s.  25. 

3655.  Selling  poison  without  label.  If  any  person  shall  sell  or 
deliver  to  any  person  any  poisonous  substance  specified  in  section 
three  thousand  eight  hundred  and  twenty-nine  or  section  three  thou- 
sand nine  hundred  and  seventy  (a),  without  labeling  the  same 
and  recording  the  delivery  thereof  in  the  manner  prescribed  in  said 
section,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than 
twenty-five  nor  more  than  one  hundred  dollars. 

1905.  c.  108,  s.  28. 

3656.  Trained  nurse,  acting  as,  Illegally.  If  any  person  shall 

procure  license  as  a  trained  nurse  by  false  representation,  or  shall  re- 
fuse to  surrender  a  license  which  has  been  duly  revoked  in  the  manner 
prescribed  by  law,  or  shall  use  the  title  "Registered  ISTurse"  or 
"R.  IST.-'  without  first  having  obtained  license  to  do  so,  he  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined  not  more 
than  fifty  dollars  or  imprisoned  not  exceeding  thirty  days. 
1903,  e.  359,  s.  9. 

XXVIII.     Prisoners  and  Convicts. 

3657.  Breaking  prison.  If  any  person  shall  break  prison,  being 
lawfully  confined  therein,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  1021;  R.  C,  c.  34,  s.  19;  1  Edw.  II.,  st.  2d. 
Rev.  Vol.  1—64  1073 


3658         CRIMES— A'X17//.  Prifioners  and  Convicts.         Ch.   SI 

3658.  Escape.  If  any  prisoner,  who  shall  he  i-enioved  from  the 
prison  of  the  respective  counties,  cities  and  towns  under  the  law 
providing  for  hiring  prisoners,  shall  escape  from  the  person  or  com- 
pany having  him  in  custody,  he  shall  be  guilty  of  a  misdemeanor, 
and  imprisoned  at  hard  labor  not  more  than  thirty  days,  or  lined 
not  more  than  fifty  dollars. 

Code,  s.  3455;   1876-7,  c.  196,  s.  4. 

3659.  Escape  of,  permitting,  or  maltreating.   If  any  person 

charged  in  any  way  with  the  control  or  management  of  convicts, 
hired  for  service  outside  of  the  state's  prison,  shall  negligently  permit 
them  to  escape,  or  shall  maltreat  them,  he  shall  be  guilty  of  a  misde- 
meanor; but  this  provision  shall  not  be  held  to  relieve  any  person 
from  any  criminal  liability. 
Code,  s.  3450;  1881,  c.  127,  s.  2. 

3660.  In  improper  apartments.  If  the  sheriff  or  jailer  shall 
wantonly  or  unnecessarily  confine  those  committed  to  his  custody  in 
any  apartment,  other  than  that  provided  and  designated  by  law  fov 
persons  of  the  description  of  the  prisoner,  he  shall  be  guilty  of  a 
misdemeanor. 

Code,  s.  3471;  R.  C,  c.  87,  s.   16;   1795,  c.  433,  s.  4. 

3661.  Injury  to,  by  jailer,  if  the  keeper  of  a  jail  shall  do,  or 
cause  to  be  done,  any  wrong  or  injury  to  the  ]n'isoners  committed 
to  his  custody,  contrary  to  law,  he  shall  not  only  pay  treble  dam- 
ages to  the  person  injured,  but  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  3463;  R.  C.  c.  87,  s.  8;  1795,  c.  433,  s.  6. 

3662.  Messages  and  weapons,  conveying  to.   If  any  person 

shall  convey  to  or  from  any  convict  any  letters  or  oral  messages,  or 
shall  convey  to  him  any  weapon  or  instrument  by  which  to  effect 
an  escape,  or  that  will  aid  him  in  an  assault  or  insurrection,  or 
shall  trade  with  a  convict  for  his  clothing  or  stolen  goods,  or  shall 
sell  to  him  any  article  forbidden  him  by  prison  rules,  he  shall  bo 
guilty  of  a  misdemeanor:  Provided,  when  murder,  an  assault  or  an 
escape  is  effected,  with  means  furni.shed  the  convicts,  the  person  con- 
victed of  furnishing  the  means  shall  be  sentenced  to  not  less  than 
four  years'  hard  labor  in  the  state's  prison. 
Code,  s.  3441;   1873-4,  c.  158.  s.  12. 


Note.     Working  female  convicts  on  roads,  see  s.  3596. 


;;(i03  CRIMES— XA'/X.  Property.  Ch.   81 

XXIX.     Peopekty. 

3663.  Contractor  failing  to  furnish  owner  indebtedness  for  la- 
bor and  materials.  If  anv  contractor  or  architect  shall  fail  to  fur- 
nish to  the  owner  au  itemized  statement  of  the  sums  due  to  every 
one  of  the  laborers,  mechanics  or  artisans  employed  by  him,  or  the 
amount  due  for  materials,  before  receiving  any  part  of  the  contract 
price,  he  shall  be  guilty  of  a  misdemeanor. 

1887,  c.  G7,  s.  4. 

3664.  Crop,  tenant's,  seized  by  landlord.  If  any  landlord  shall 

unlawfully,   wilfnlly,   knowingly   and  without  process   of  law,    and 
unjustly  seize  the  crop  of  his  tenant  when  there  is  nothing  due  him, 
he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  1759;  1876-7,  c.  283,  3.  6;  1883,  c.  83. 

3665.  Crop,  removal  of,  by  tenant.  If  any  lessee  or  cropper,  or 
the  assigns  of  either,  or  any  other  person,  shall  remove  a  crop,  or 
any  part  thereof,  from  land  without  the  consent  of  the  lessor  or  his 
assigns,  and  without  giving  him  or  his  agent  five  days'  notice  of 
such  intended  removal,  and  before  satisfying  all  the  liens  held  by 
the  lessor  or  his  assigns,  on  said  crop,  he  shall  be  guilty  of  a  mis- 
demeanor. 

Code,  s.  1759;  1876-7,  c.  283,  s.  6;  1883,  e.  83. 

3666.  Electric  and  steam  appliances  protected.  If  any  person 

shall  wilfully,  with  intent  to  injure  or  defraud,  commit  any  of  the 
acts  set  forth  in  the  following  subsections,  he  shall  be  guilty  of  a 
misdemeanor : 

L  Connect  a  tube,  pipe,  wire  or  other  instrument  or  contrivance 
with  a  pipe  or  wire  used  for  the  conducting  or  supplying  illumina- 
ting gas,  fuel,  natural  gas  or  electricity  in  such  a  manner  as  to  sup- 
jily  such  gas  or  electricity  to  any  burner,  orifice,  lam]3  or  motor 
where  the  same  is  or  can  be  burned  or  used  without  passing  through 
the  meter  or  instrument  provided  for  registering  the  quantity  con- 
sumed ;  or, 

2.  Obstruct,  alter,  injure  or  prevent  the  action  of  a  meter  or 
other  instrument  used  to  measure  or  register  the  quantity  of  illu- 
minating fuel,  natural  gas  or  electricity  consumed  in  a  house  or 
apartment,  or  at  an  orifice  or  burner,  lamp  or  motor,  or  by  a  con- 
sumer or  other  person  other  than  an  employee  of  the  company  own- 
ing any  gas  or  electric  meter,  who  wilfully  shall  detach  or  discon- 
nect such  meter,  or  make  or  report  any  test  of,  or  examine  for  the 
purpose  of  testing  any  such  meter  so  detached  or  disconnected ;  or, 

.1.  In  any  manner  whatever  change,  extend  or  alter  any  service 
or  other  pipe,  wire  or  attachment  of  any  kind,  connecting  or  through 

1075 


3666  CKIMES— XZZZ.  Property.  Ch.   SI 

which  natural  or  artificial  .gas  or  electricity  is  furnished  from  the 
gas  mains  or  pipes  of  any  person,  without  first  procuring  from  said 
person  written  permission  to  make  siich  change,  extension  or  altera- 
tions ;  or, 

4.  Make  any  connection  or  reconnection  with  the  gas  mains,  serv- 
ice pipes  or  wires  of  any  person,  furnishing  to  consumers  natural 
or  artificial  gas  or  electricity,  or  turn  on  or  off  or  in  any  manner 
interfere  with  any  valve  or  stop-cock  or  other  appliances  belonging 
to  such  person,  and  connected  with  its  service  or  other  pipes  or  wires, 
or  enlarge  the  orifice  of  mixers,  or  uses  natural  gas  for  heating  pur- 
poses except  through  mixers,  or  electricity  for  any  purpose  without 
first  procuring  from  such  person  a  written  permit  to  turn  on  or  off 
such  stop-cock  or  valve,  or  to  make  such  connection  or  j-econnections, 
or  to  enlarge  the  orifice  of  mixers,  or  to  use  for  heating  purposes 
without  mixers,  or  to  interfere  with  the  valves,  stop-cocks,  wires,  or 
other  appliances  of  such,  as  the  case  may  be ;  or, 

5.  Retain  possession  of  or  refuse  to  deliver  any  mixer,  meter, 
lamp,  or  other  appliances  which  may  be  leased  or  rented  to  them 
by  any  person,  for  the  purpose  of  furnishing  gas,  electricity  or  power 
through  the  same,  or  who  sells,  loans  or  in  any  manner  disposes  of 
the  same  to  any  person  other  than  the  said  person  entitled  to  the 
possession  of  the  same;  or, 

6.  Set  on  fire  any  gas  escaping  from  wells,  broken  or  leaking 
mains,  pipes,  valves  or  other  appliances  used  by  any  person  in  con- 
veying gas  to  consumers,  or  interfere  in  any  manner  with  the  wells, 
pipes,  mains,  gate-boxes,  valves,  stop-cocks,  wires,  cables,  conduits 
or  any  other  appliances,  machinery  or  property  of  any  person  en- 
gaged in  furnishing  gas  to  consumers  unless  employed  by  or  acting 
imder  the  authority  and  direction  of  such  person;  or, 

7.  Open  or  cause  to  be  opened,  or  reconnect,  or  cause  to  be  recon- 
nected any  valve  lawfully  closed  or  disconnected  by  a  district  stcaui 
corporation ;  or, 

8.  Turn  on  steam  or  cause  it  to  be  turned  on,  nr  re-(>nter  any 
premises  when  the  same  has  been  lawfully  stojiped  from  entering 
such  premises. 

1901,  c.  735. 

3667.  Engines,  boilers,  machinery;  tampering  with,  if  any  per- 
son shall  wilfully  turn  out  water  from  any  lioiler  or  turn  the  bolts 
of  any  engine  or  boiler,  or  meddle  or  tamper  with  sucli  boiler  or 
engine,  or  any  other  machinery  in  connection  with  any  boiler  or 
engine,  causing  loss,  damage,  danger,  or  delay  to  the  owner  in  tlie 
prosecution  of  his  work,  he  shall  be  guilty  of  a  misdemeanor. 

1901,  c.  733. 


3668  CRIMES— XXZZ.  Property.  Ch.   81 

3668.  Fairs;  injuring  exhibits  at;  indictment.  If  any  person,  with- 
out license  of  tlie  owner,  or  any  agricultural  or  other  society,  shall 
unlawfully  carry  away,  remove,  destroy,  mar,  deface  or  injure  any- 
thing, animate  or  inanimate,  while  on  exhibition  on  the  grounds  of 
any  such  society,  or  going  to  or  returning  from  the  same,  he  shall  be 
guilty  of  a  misdemeanor.  It  shall  be  sufficient  in  any  indictment 
for  any  such  offense,  or  for  the  larceny  of  any  such  thing,  animate  or 
inanimate  as  aforesaid,  to  charge  that  the  thing  so  carried  away, 
destroyed,  marred,  injured  or  feloniously  stolen,  is  the  property  of 
the  society  to  which  the  said  thing  shall  be  foi'warded  for  exhibition. 

Code,  s.  2796;   1870-1,  c.  184,  s.  4. 

Note.     For  fraudulent  entries  at  fairs,  see  s.  3429. 

3669.  Fair  grounds,  unlawfully  entering.  If  any  person,  after 

having  been  expelled  from  the  fair  grounds  of  any  agricultural  or 
horticultural  society,  shall  offer  to  enter  the  same  again  without  per- 
mission from  such  society;  or  if  any  person  shall  break  over  the 
<?nclosing  structure  of  said  fair  grounds  and  enter  the  same,  or 
shall  enter  the  enclosure  of  said  grounds  by  means  of  climbing  over, 
under  or  through  the  enclosing  structure  surrounding  the  same,  qr 
shall  enter  the  enclosure  through  the  gates  without  the  permission 
of  its  gate-keeper  or  the  proper  officer  of  said  fair  association,  he 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined 
not  more  than  fifty  dollars,  or  imprisoned  not  more  than  thirty  days. 

Code,  s.  2795;   1901,  e.  291;   1870-1,  c.  184,  s.  3. 

3670.  Forcible  entry  and  detainer.   No  one  shall  make  entry 

into  any  lands  and  tenements,  or  term  for  years,  but  in  case  where 
entry  is  gi\'en  by  law ;  and  in  such  case,  not  with  strong  hand  nor 
with  multitude  of  people,  but  only  in  a  J)eaceable  and  easy  manner; 
and  if  any  man  do  the  contrary,  he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  1028;  R.  C,  c.  49,  s.  1 ;  5  Ric.  II.,  c.  8. 

3671.  Gas  company;  injuring  machinery,  fixtures,  etc.  If  any 

person  shall  wilfully,  wantonly  or  maliciously  remove,  obstruct,  in- 
jure or  destroy  any  part  of  the  plant,  machinery,  fixtures,  structures 
or  buildings,  or  anything  appertaining  to  the  works  of  any  gas  com- 
pany, or  shall  use,  tamper  or  interfere  with  the  same,  he  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined 
not  exceeding  fifty  dollars  or  imprisoned  not  more  than  thirty  days 
for  such  offense,  and  such  person  shall  also  forfeit  and  jiay  to  the 
company  so  injured,  to  be  sued  for  and  recovered  in  a  civil  action, 
double  the  amount  of  the  damages  sustained  by  any  such  injury. 
1889   (Pr.),  c.  35,  s.  3. 


1077 


3G72  CKIMES— A'X/Z.  Property.  Ch.  81 

3672.  Graves,  disturbing.  If  any  person  shall,  without  due  pro- 
cess of  law,  or  the  consent  of  the  surviving  husband  or  wife,  or  the 
next  of  kin  of  the  deceased,  and  of  the  person  having  the  control  of 
such  grave,  open  any  grave  for  the  purpose  of  taking  therefrom  any 
such  dead  body,  or  any  part  thereof  buried  therein,  or  anything 
interred  therewith,  he  shall  be  guilty  of  a  felony,  and  upon  convic- 
tion thereof  shall  be  fined  or  imprisoned,  or  both,  at  the  discretion 
of  the  court. 

1885,  c.  90. 

3673.  Houses,  churches,  fences,  walls;  injuries  to.  if  any  per- 
son shall,  by  any  other  means  than  burning  or  attempting  to  burn, 
unlawfully  and  wilfully  demolish,  destroy,  deface,  injure,  or  dam- 
age any  of  the  houses  or  buildings  previously  mentioned  in  this 
chapter;  or  shall  unlawfully  and  wilfully  burn,  demolish,  pull  down, 
destroy,  deface,  damage,  or  injure  any  church,  uninhabited  house, 
otithouse,  or  other  house  or  building  not  mentioned  before  in  this 
chapter;  or  shall  unlawfully  and  wilfully  burn,  destroy,  pull  down, 
injure,  or  remove  any  fence,  wall,  or  other  inclosure,  or  any  part 
thereof  surrounding  or  about  any  yard,  garden,  cultivated  field  or 
pasture,  or  about  any  church,  graveyard,  factory,  or  other  house  in 
which  machinery  is  used,  every  person  so  offending  shall  be  guilty 
of  a  misdemeanor. 

Code,  s.  1062;  R.  C,  c.  34,  s.  103. 

3674.  Landmarks,  altering  or  removing.  If  any  person  shall 

wilfully  or  fraudulently  remove,  alter  or  deface  any  landmark,  in 
anywise  whatsoever,  such  person  shall  be  guilty  of  a  misdemeanor. 
This  section  shall  not  apply  to  such  landmarks  as  creeks  and  other 
small  streams,  which  the  interest  of  agriculture  may  require  to  b;' 
altered  or  turned  from  their  channels. 
Code,  s.  1063;  1858-9,  c.  17. 

3675.  Live  stocl<,  shipping,  on  Scuppernong  river,  if  any  trans- 
portation company  or  couiuniu  carrier  shall  receive  live  stock  for 
shipment  at  any  of  the  landings  or  shipinug  points  on  Scu])pernong 
river,  Columbia  excepted,  between  the  hours  of  sunset  and  sunrise, 
or  shall  during  the  time  any  live  stock  may  be  held  for  shipment 
at  any  landing  or  shipping  point  on  said  river,  Columbia  excepted, 
fail  to  keep  the  same  in  a  covered  pound  or  inclosure,  sujiplied  with 
necessary  food  and  drinking  water,  and  at  all  times  in  full  view  of 
the  public,  such  transportation  company,  common  carrier,  or  tlie 
agent  of  either  shall  be  guilty  of  a  misdemeanor  and  upon  convic- 
tion shall  Ix?  fined  or  imprisoned,  or  both,  at  the  discretion  of  the 
court. 

1903,  c.  283. 

1078 


3676  CEIMES— A'-Y/X.  Property.  Ch.  81 

3676.  Malicious  injury  to  personal  property.  If  any  person  shall 

wantonly  and  wilfully  injure  the  pcrsoiuil  property  of  another,  he 
shall  be  guilty  of  a  misdemeanor,  whether  the  property  be  destroyed 
or  not,  and  shall  be  punished  by  fine  or  imprisonment,  or  both,  in 
the  discretion  of  the  court. 

Code,  s.  1082;  1885,  c.  53;  1876-7,  c.  18. 

3677.  Malicious  injury  to  real  property.  If  any  person  shall  ma- 
liciously commit  any  damage,  injury  or  spoil  upon  any  real  prop- 
erty whatsoever,  either  of  a  public  or  private  nature,  for  which  no 
punishment  is  provided  by  any  existing  law%  every  person  so  offend- 
ing shall  be  guilty  of  a  misdemeanor :  Provided,  that  nothing  herein 
shall  extend  to  any  case  Avhere  the  party  trespassing  or  doing  the 
injury  acted  under  a  fair  and  reasonable  belief  that  he  had  a  right 
to  do  the  act  complained  of,  nor  to  any  trespass,  not  being  wilful 
and  malicious,  committed  in  hunting,  fishing  or  the  pursuit  of  game. 
When  the  owner,  or  one  of  the  owners  of  an  estate  in  possession, 
shall  complain  of  the  injury  before  a  justice  of  the  peace  of  the 
county  in  which  the  offense  is  charged  to  have  been  committed  before 
the  regular  term  of  the  suiDerior  court  next  after  the  commission  of 
the  offense,  and  shall  fail  to  state  in  his  complaint  that  the  damage 
exceeds  ten  dollars,  the  punishment,  upon  conviction  of  the  offense, 
shall  not  exceed  a  fine  of  fifty  dollars  or  imprisonnieBt  for  thirty 
days. 

Code,  s.  1081;  R.  C,  c.  34,  s.  Ill;   1873-4,  c.  176,  s.  5. 

3678.  Milldams,  injuries  to.  If  any  person  shall  cut  away,  destroy, 
or  otherwise  injure  any  dam,  or  part  thereof,  or  shall  obstruct  or 
damage  any  race,  canal,  or  water  channel  erected,  opened,  used, 
or  constructed  for  the  purpose  of  furnishing  water  for  the  opera- 
tions of  any  mill,  factory  or  machine  works,  or  for  the  escape  of 
water  therefrom,  he  shall,  upon  conviction,  be  fined  or  imprisoned, 
or  both,  at  the  discretion  of  the  court. 

Code,  s.  1087;  18G6,  c.  48. 

3679.  Mills,  false  toll-dishes.  If  any  owner,  by  himself  or  serv- 
ant, keeping  any  mill,  shall  keep  any  false  toll-dishes,  he  shall  be 
guilty  of  a  misdemeanor. 

Code,  s.  1848;  E.  C,  c.  71,  s.  7;  1777,  c.  122,  s.  11. 

3680.  Monuments  and  tombstones;  defacing  or  removing.  If 

any  person  shall,  unlawfully  and  on  purpose,  remove  from  its  place 
any  monument  of  marble,  stone,  brass,  wood  or  other  material, 
erected  for  the  purpose  of  designating  the  spot  where  any  dead  body 
is  interred,  or  for  the  purpose  of  preserving  and  perpetuating  the 
memory,  name,  fame,  birth,  age  or  death  of  any  person,  whether 


3680  CROrES— -YA7X.  Property.  Ch.  81 

situated  in  or  out  of  the  common  biirying  ground,  or  shall  unlaw- 
fully or  on  purpose  break  or  deface  such  monument,  or  alter  the 
letters,  marks  or  inscription  thereof,  he  shall  be  guilty  of  a  mis- 
demeanor. 

Code.  s.  1088;  K.  C.  c.  :i4_,  s.  102;   1840.  c.  li. 

3681.  Moving  enclosures  of  graveyards.   If  any  person  shall 

unlawfully  take  away  any  stone,  brick,  iron  or  anything  that  encloses 
private  graveyards,   he  shall  be  guilty  of  a  misdemeanor,   and   on 
conviction,  shall  be  fined  not  more  than  ten  dollars  or  imprisoned 
not  more  than  thirty  days. 
1889,  c.  130. 

3682.  Possession;  surrendering,  to  other  than  landlord.   Any 

tenant  or  lessee  of  lands  who  shall  wilfull}',  wrongfully  and  with 
intent  to  defraud  the  landlord  or  lessor,  give  up  the  possession  of 
the  rented  or  leased  premises  to  any  person  other  than  his  landlord 
or  lessor,  shall  be  giiilty  of  a  misdemeanor. 
Code,  s.  1760;  1883,  c.  138. 

3683.  Removing  dog-tongue,  etc.,  in  certain  counties,  if  any 

person  shall  enter  upon  and  remove  from  the  lauds  of  ;iny  other  per- 
son, without^  first  obtaining  permission  from  the  landowner,  any 
dog-tongue  (or  vanilla),  whortleberries  or  other  fruits,  or  any  other 
marketable  product  of  the  soil,  he  shall  be  guilty  of  a  misdemeanor, 
and,  upon  conviction,  shall  be  fined  not  less  than  five  dollars  nor 
more  than  fifty  dollars  for  each  offense,  or  imprisoned  not  more 
than  thirty  days:  Provided,  that  this  section  shall  apply  to  the  coun- 
ties of  Sampson  and  Duplin  only. 
1889,  c.  77. 

3684.  Surveyor's  chain  tested.  If  any  person  who  shall  use 
any  chain  for  measuring  land  without  having  the  same  first  meas- 
ured and  sealed  by  the  standard-keeper,  or  who  shall  use  the  same 
for  a  longer  period  than  two  years  without  bringing  it  to  the  stand- 
ard-keeper and  having  the  same  measured  and  sealed  by  him,  he 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined 
not  exceeding  ten  dollars. 

18S!),  c.  40il.  s.  2. 

3685.  Taking  unlawful  possession  of  another's  house.   If  any 

per.son  shall  enter  u]i(iu  the  lands  of  another  and  take  possession  of 
any  house  or  building  being  thereon,  without  permission  of  the 
owner  or  agent  and  without  a  bona  fide  claim  of  right  or  title  so  to 
enter  and  take  jio.ssession,  and  shall  fail  or  refuse  to  vacate  said 
premises  within  icn  <liiys  after  being  notified   pevsoiuilly  in  writing 

1080 


3(585  CRIMES— A'AYX.  Property.  Ch.   81 

to  quit  said  premises,  he  shall  be  guilty  of  a  misdemeanor  and  fined 
or  imprisoned  at  the  discretion  of  the  court. 
1893,  c.  347. 

3686.  Tenant  injuring  houses,  fences,  trees,  etc.  if  any  tenant 

shall,  diiring  his  term  or  after  its  expiration,  wilfully  and  unlaw- 
fully demolish,  destroy,  deface,  injure  or  damage  any  tenement 
house,  uninhabited  house  or  other  outhouse,  belonging  to  his  land- 
lord or  upon  his  premises  by  removing  parts  thereof  or  by  burning, 
or  in  any  other  manner,  or  shall  unlawfully  and  wilfully  burn, 
destroy,  pull  down,  injure  or  remove  any  fence,  wall  or  other  inclos- 
ure  or  any  part  thereof,  built  or  standing  upon  the  premises  of  such 
landlord,  or  shall  wilfully  and  unlawfully  cut  do^vn  or  destroy  any 
timber,  fruit,  shade  or  ornamental  tree  belonging  to  said  landlord, 
he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  1761;  1883,  c.  224. 

3687.  Timber,  cutting  or  removing,  from  land  of  another.   If 

any  person,  not  being  the  bona  fide  owner  thereof,  shall  knowingly 
and  wilfully  cut  down,  injure  or  remove  any  standing,  growing,  or 
fallen  tree,  or  log,  the  property  of  another,  he  shall  be  guilty  of  a 
misdemeanor  and  punished  by  a  fine  of  not  more  than  fifty  dollars 
or  imprisoned  not  more  than  thirty  days. 

1889,  c.   168. 

3688.  Trespass  on  land  after  being  forbidden;  license  to  look 

for  estrays.  if  any  person,  after  being  forbidden  to  do  so,  shall  go 
or  enter  upon  the  lands  of  another,  without  a  license  therefor,  he 
shall  be  gaiilty  of  a  misdemeanor,  and  on  conviction,  shall  be  fined 
not  exceeding  fifty  dollars,  or  imprisoned  not  more  than  thirty  days : 
Provided,  that  if  any  person  shall  make  a  written  affidavit  before  a 
justice  of  the  peace  of  the  county  that  any  of  his  cattle  or  other  live 
stock  (which  shall  be  specially  described  and  set  forth  in  such  affi- 
davit) have  strayed  away,  and  he  has  good  reason  to  believe  that 
they  are  on  the  lands  of  another  person,  then  such  justice  may,  in 
his  discretion,  allow  such  person  to  enter  on  said  premises  with  one 
or  more  servants,  without  firearms,  in  the  day  time  (Sunday  ex- 
cepted), between  the  hoiirs  of  sunrise  and  sunset,  and  make  search 
for  his  estrays  for  such  limited  time  as  to  said  justice  shall  appear 
reasonable ;  but  the  only  effect  of  such  license  shall  be  to  protect  the 
persons  entering  from  indictment  therefor,  and  then  only,  provided 
the  license  shall  have  been  made  bona  fide,  and  without  any  damage 
except  such  as  were  necessary  to  condiict  the  search. 

Code,  s.  1120:   1866,  c.  60. 


3689  CRIMES— XX/X.  Propert,/.  Ch.  81 

3689.  Trustee  in  deed  of  trust  for  creditors  violating  duty.  If 

any  trustee  in  a  deed  oi  trust  for  the  benefit  of  creditors  shall  fail 
to  file  his  inventory  as  required  by  law,  or  shall  knowingly  make  any 
false  statement  in  such  inventory,  or  shall  knowingly  fail  to  include 
any  proijerty  therein,  or  shall  sell  any  part  of  the  property  described 
in  the  deed  of  trust  within  ten  days  unless  such  property  so  sold  be 
perishable,  or  shall  fail  to  file  either  of  the  quarterly  accounts  or 
the  final  accounts  as  required  by  law,  or  shall  knowingly  make  any 
false  statement  in  such  quarterly  or  final  acco\nit,  or  shall  knowingly 
fail  to  include  any  property,  money  or  disbursement  in  such  quar- 
terly or  final  account,  he  shall,  in  either  case,  be  guilty  of  a  misde- 
meanor. 

1893.  c.  453,  s.  8. 

Note.     See  Conveyance.s,  subchapter  Deeds  of  Trust  for  Creditors. 

XXX.     Public  Justice. 

3690.  Corporations,  agents  of,  refusing  certain  demands  by 

officer  with  execution  for  service.  If  any  agent  or  person  having 
charge  or  control  of  any  property  of  a  corporation,  or  any  clerk, 
cashier,  or  other  officer  of  a  corporation,  who  has  at  the  time  the 
custody  of  the  books  of  the  company,  or  if  any  agent  or  person  hav- 
ing custody  of  any  evidence  of  debt  due  to  a  corporation,  shall,  on 
request  of  a  public  officer  having  in  his  hands  for  service  an  execu- 
tion against  the  said  corporation,  wilfully  refuse  to  give  to  such  offi- 
cer the  names  of  the  directors  and  officers  thereof,  and  a  schedule 
of  all  its  property,  including  debts  due  or  to  become  due,  or  shall 
wilfully  refuse  to  give  to  such  officer  a  certificate  of  the  number  of 
shares,  or  amount  of  interest  held  by  such  corporation  in  any  other 
corporation,  or  shall  wilfully  refuse  to  deliver  to  such  officer  any 
evidences  of  indebtedness  due  or  to  become  due  to  such  corporation, 
he  shall  be  giiilty  of  a  misdemeanor. 
1901,  c.  2,  ss.  67,  68,  70. 

3691.  Corporation  commission,  witnesses  before.  If  any  per- 
son duly  summoned  to  appear  and  testify  before  tlio  coriioration  com- 
mission shall  fail  or  refuse  to  testify  without  lawful  excuse  or  shall 
refuse  to  answer  any  proper  question  propounded  to  him  by  said 
commission  in  the  discliarge  of  duty  or  shall  conduct  himself  in  a 
rude,  disrespectful  or  disorderly  manner  before  said  commission,  or 
any  of  them  deliberating  in  the  discharge  of  duty,  such  person  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof, 
shall  be  fined  not  less  than  fifty  nor  more  than  one  thousand  dollars. 

1899,  c.  164,  s.  10. 

3692.  General  assembly;  failure  to  attend  as  witness  before 

committee  of.    if  any  jierson  shall  wilfully  fail  or  refuse  to  attend 


3692  CRIMES— A'ZX.  Public  Justice.  Ch.   81 

or  produce  papers,  or  summons  of  any  committee  of  investigation 
of  either  house  of  the  general  assembly,  either  select  or  committee 
of  the  whole,  he  shall  be  guilty  of  a  misdemeanor,  and  on  conviction 
in  the  superior  court  of  the  county  in  which  such  witness  may  reside 
or  be  found,  he  shall  be  fined  not  less  than  five  hundred  dollars  nor 
more  than  one  thousand  dollars,  and  imprisoned,  at  the  discretion  of 
the  court. 

Code,   s.  2854;    1869-70,  c.   5.   s.   2. 

3693.  Internal  improvements,  witnesses  before  board  of.  If  any 

person  shall  refuse  to  obey  any  summons  of,  or  answer  any  ques- 
tions when  required  so  to  do  by,  a  member  of  the  board  of  internal 
improvements,  who  is  making  an  investigation  as  authorized  by  law, 
he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  1721;   1879,  c.  281,  s.  3. 

3694.  Insane  person;  aiding,  to  escape  from  hospital.  If  any 

person  shall  assist  any  inmate  of  a  state  hospital  to  escape  therefrom, 
he  shall  be  guilty  of  a  misdemeanor. 

1899,  c.   1,   s.   .53. 

3695.  Insane;  violation  of  ordinance  of  hospital.  If  any  person 

shall  violate  any  ordinance  adopted  by  the  board  of  directors  of  any 
state  hospital  for  the  insane,  or  of  the  Xorth  Carolina  school  for  the 
deaf  and  dumb,  or  the  deaf,  dumb  and  blind,  he  shall  be  guilty  of 
a  misdemeanor,  and  upon  conviction,  shall  be  fined  not  exceeding 
fifty  dollars  or  imprisoned  not  exceeding  thirty  days. 

1899,  e.  1,  s.  54;   1901,  c.  627. 

3696.  Jurors  and  witnesses,  intimidating.   If  any  person  shall 

by  threats,  menaces,  or  in  any  other  manner,  intimidate  or  attempt  to 
intimidate  any  person  who  is  summoned  or  acting  as  a  juror  or  wit- 
ness in  any  of  the  courts  of  this  state,  or  prevent  or  deter,  or  attempt 
to  prevent  or  deter  any  person  summoned  or  acting  as  such  juror  or 
witness  from  attendance  upon  such  court,  he  shall  be  guilty  of  a  mis- 
demeanor, and  upon  conviction  shall  be  fined  or  imprisoned  in  the 
discretion  of  the  court. 
1891,  c.  87. 

3697.  Jurors,  bribery  of.  If  any  juror,  either  directly  or  indi- 
rectly, shall  take  anything  from  the  plaintiff  or  defendant  in  a  civil 
suit,  or  from  any  defendant  in  a  state  prosecution,  or  from  any 
other  person,  to  give  his  verdict,  every  such  juror,  and  the  person 
who  shall  give  such  juror  any  fee  or  reward  to  influence  his  verdict, 
or  induce  or  procure  him  to  make  any  gain  or  profit  by  his  verdict. 


3697  CRIMES— ZXX.  Public  Justice.  Ch.  81 

shall  be  guilty  of  a  felony,  and  imprisoned  in  the  state's  prison  or 
county  jail  not  less  than  fonr  months  nor  more  than  ten  years. 

Code,  s.  990:  R.  C,  c.  34,  s.  34;  5  Edw.  III.,  c.  10;  34  Edw.  III.,  c.  8;  38  Edw. 
Ill,,  c.  12. 

3698.  Lynching.  If  any  person  shall  conspire  to  break  or  enter 
any  jail  or  other  place  of  confinement  of  prisoners  charged  with 
crime  or  under  sentence,  for  the  purpose  of  killing  or  otherwise 
injuring  any  prisoner  confined  therein ;  or  if  any  person  shall  engage 
in  breaking  or  entering  any  such  jail  or  other  place  of  confinement 
of  such  prisoners  with  intent  to  kill  or  injure  any  prisoners,  he  shall 
be  guilty  of  a  felony,  and  upon  conviction,  or  upon  a  plea  of  guilty, 
shall  be  fined  not  less  than  five  hundred  dollars,  and  imprisoned  in 
the  state's  prison  or  the  county  jail,  not  less  than  two  nor  more  than 
fifteen  years. 

1893,  e.  461,  s.   1. 

,  3699.  Lynching;  witness  refusing  to  appear  and  testify.  If  any 

person  be  summoned  as  a  witness  in  the  investigation  of  a  charge  of 
lynching  shall  wilfully  fail  to  attend  as  a  witness  in  obedience  to 
the  process  served  on  him,  or  if,  after  being  sworn,  he  refuse  to 
answer  questions  pertinent  to  the  matter  being  investigated  before 
any  tribunal,  he  shall  be  guilty  of  a  misdemeanor,  and,  on  conviction, 
shall  be  fined  or  imprisoned,  or  both,  at  the  discretion  of  the  court. 
1893,  e.  461,  s.  3. 

3700.  Officers,  resisting.  If  any  person  shall  wilfully  and  un- 
lawfully resist,  delay  or  obstruct  a  jniblic  officer  in  discharging  or 
attemiJting  to  discharge  a  duty  of  his  office,  he  shall  be  guilty  of  a 
misdemeanor. 

1889,  c.  51.  s.  1. 

3701.  Officer;  refusing  to  aid,  in  arrest.  If  any  person,  after 

having  been  lawfully  commanded  to  aid  an  officer  in  arresting  any 
person,  or  in  retaking  any  person  who  has  escaped  from  legal  ens- 
tody,  or  in  executing  any  legal  process,  wilfully  neglects  or  refuses 
to  aid  such  officers,  he  shall  be  guilty  of  a  misdemeanor. 
1889,  c.  51.  s.  2. 

3702.  Town  ordinance,  violation  of.  If  any  person  shall  violate 
an  ordinance  nf  a  city  or  town,  lie  shall  be  guilty  of  a  misdonieanor, 
and  shall  be  fined  not  exceeding  fifty  dollars,  or  imprisoned  not 
exceeding  thirty  days. 

Code,  s.  3820;   1871-2,  c.  195,  s.  2. 


370?.  dRIMES— XA'AV.  Public  Peace.  Ch.  81 

XXXI.     Public  Peace. 

3703.  Armed  men  in  bodies  as  detectives.  If  any  body  of  men 

composed  of  more  than  three  persons  calling  themselves  detectives 
or  claiming  to  be  in  the  employ  of  any  detective  agency  or  known 
and  designated  as  detectives,  shall  go  armed,  they  shall  be  guilty  of 
a  misdemeanor,  and  npon  conviction  shall  be  fined  or  imprisoned  in 
the  discretion  of  the  conrt. 
1893,  c.  191. 

3704.  Disturbing  certain  meetings.  If  any  person  shall  wil- 
fully interrupt  or  disturb  any  picnic,  excursion  party,  school  enter- 
tainment, political  meeting,  or  any  meeting  or  other  organization 
whatsoever  lawfully  and  peaceably  held,  either  at,  within  or  without 
the  place  where  such  picnic,  excursion  party,  school  entertainments, 
political  meetings  or  any  meetings  or  other  organization  is  held,  he 
shall  be  guilty  of  a  misdemeanor,  and  fined  or  imprisoned,  in  the 
discretion  of  the  conrt. 

1897,  c.  213. 

3705.  Disturbing  religious  assembly  by  certain   exhibitions. 

If  any  person  shall  bring  within  half  a  mile  of  any  place  where 
the  people  are  assembled  for  divine  Avorship,  and  stop  for  exhi- 
bition any  stud-horse  or  jack,  or  shall  bring  within  that  distance 
any  natural  or  artificial  curiosities,  and  there  exhibit  them,  he  shall 
forfeit  and  pay  to  any  one  Avho  will  sue  therefor  the  sum  of  twenty 
dollars  and  shall  also  be  guilty  of  a  misdemeanor :  Provided,  that 
nothing  herein  shall  be  construed  to  prohibit  such  exhibitions  at 
any  time,  if  made  within  the  limits  of  any  incorporated  town,  or 
without  such  limits,  if  made  before  the  hour  of  ten  o'clock  in  the 
forenoon,  or  after  three  o'clock  in  the  afternoon. 
Code.  s.  3670;  E.  C,  c.  97,  s.  6;   1809,  c.  779,  s.  1. 

3706.  Disturbing  religious  congregation.  If  any  person  shall  be 

intoxicated  or  shall  be  guilty  of  any  ru<le  and  disorderly  conduct  at 
any  place  where  people  are  accustomed  to  meet  for  divine  worship, 
and  while  the  people  are  there  assembled  for  such  worship,  whether 
such  worship  should  have  begun  or  not,  he  shall  be  guilty  of  a  mis- 
demeanor, and  shall,  npon  conviction,  be  fined  or  imprisoned  in  the 
discretion  of  the  conrt. 
1901,  c.  738. 

3707.  Prize-fighting;  engaging  in,  betting  on,  aiding  and  abet- 
ting. If  any  two  nr  nmrc  jicrsons  engage  in  a  ]irize  fight,  or  spar- 
ring match,  or  glove  or  fist  contest,  for  money  or  other  valuable  prize 
or  stake ;  or  if  any  person  bet  or  lay  a  wager  on  the  result  tJiereof ; 


3707  CEIMES— A'ZX/.  Public  Peace.  Ch.  SI 

or  advise,  aid  or  abet  in  any  way  whatever  in  promoting  the  same,  he 
shall  be  tined  not  less  than  five  hundred  dollars,  or  imprisoned  in 
the  state's  prison  or  jail  for  not  less  than  one  year  nor  more  than 
five  years,  or  both,  in  the  discretion  of  the  court. 

1895,  c.  28,  ss.  1-4. 

Note.     See  s.  5328. 

3708.  Weapons,  carrying  concealed.  If  any  one,  except  when 

on  his  own  premises,  shall  carry  concealed  about  his  person  any 
pistol,  bowie-knife,  dirk,  dagger,  slungshot,  loaded  cane,  brass,  iron 
or  metallic  knuckles  or  razor  or  other  deadly  weapon  of  like  kind, 
he  shall  be  giiilty  of  a  misdemeanor,  and  fined  or  imprisoned  at  the 
discretion  of  the  court.  And  if  any  one,  not  being  on  his  o^^'^l  lands, 
shall  have  about  his  person  any  such  deadly  weapon,  such  possession 
shall  be  prima  facie  evidence  of  the  concealment  thereof.  This  sec- 
tion shall  not  apply  to  the  following  persons:  Officers  and  soldiers 
of  the  United  States  array,  civil  oflicers  of  the  United  States  while 
in  the  discharge  of  their  official  duties,  officers  and  soldiers  of  the 
militia  and  the  state  guard  when  called  into  actual  service,  officers 
of  the  state,  or  of  any  county,  city  or  town,  charged  with  the  exe- 
cution of  the  laws  of  the  state,  when  acting  in  the  discharge  of  their 
official  duties. 

Code,  s.  1005. 

Note.     Hampton's  Detective  Biu'eau  exempt  in  Buncombe  county. 

XXXII.     Public  Police. 

3709.  Advertisements,  injury  to.  If  any  person  shall  wantonly 
01  maliciously  mutilate,  deface,  pull  or  tear  do\vn,  destroy  or  other- 
wise damage  any  notice,  sign  or  advertisement,  unless  immoral  or 
obscene,  whether  jjut  up  by  an  officer  of  the  law  in  performance  of 
the  duties  of  his  office,  or  other  person  for  a  lawful  purpose,  before 
the  object  for  which  such  notice,  sign  or  advertisement  shall  have 
been  posted  shall  have  been  accomplished,  he  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined  not  exceed- 
ing twenty-five  dollars  or  imprisoned  not  exceeding  thirty  days  at 
the  discretion  of  the  court.  ISTothing  herein  contained  shall  apply 
to  any  j^erson  mutilating,  defacing,  pulling  or  tearing  down,  de- 
stroying or  otherwise  damaging  notices,  signs  or  advertisements  put 
up  on  his  own  land  or  lands  of  which  he  may  have  charge  or  con- 
trol, unless  consent  of  such  person  to  put  up  such  notice,  sign  or 
advertisement  shall  have  first  been  obtained,  except  those  put  up 
by  an  officer  of  the  law  in  the  performance  of  the  duties  of  his  office. 

1885,  c.  302. 


3710  CRIMES— ZZZZ/.  Puhlic  Police.  Ch.  81 

3710.  Advertisements,  defacing.   If  any  person  shall  wilfully 

and  imlawfully  defacL',  tear  down,  remove  or  destroy  any  legal  notice 
or  advertisement  authorized  by  law  to  be  posted  by  any  officer  or  other 
person,  the  same  being  actually  posted  at  the  time  of  such  defacing, 
tearing  down,  removing  or  destruction,  during  the  time  for  which 
such  legal  notice  or  advertisement  shall  be  authorized  by  law  to  be 
posted,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  exceeding 
fifty  dollars,  or  imprisoned  not  exceeding  thirty  days. 
Code,  s.  981;   187G-7,  e.  215. 

3711.  Bills,  etc.,  unauthorized,  issued  to  circulate  as  money. 

If  any  person  or  corporation,  unless  the  same  be  expressly  allowed 
by  law,  shall  issue  any  bill,  due  bill,  order,  ticket,  certificate  of 
deposit,  promissory  note  or  obligation,  or  any  other  kind  of  security, 
whatever  may  be  its  form  or  name,  with  the  intent  that  the  same 
shall  circulate  or  pass  as  the  representative  of,  or  as  a  substitute  for, 
money,  he  shall  foi'feit  and  pay  for  each  offense,  the  sum  of  fifty 
dollars ;  and  if  the  party  offending  be  a  corporation,  it  shall  also 
forfeit  its  charter.  And  every  person  offending  ag'ainst  this  sec- 
tion, or  aiding  or  assisting  therein,  shall  be  guilty  of  a  misdemeanor. 
Code.  s.  2493;  1895,  c.  127;  E.  C,  c.  36,  s.  5. 

3712.  Bills,  etc.,  unauthorized,  passing  as  money.  If  any  per- 
son or  corjioration  shall  pass  or  receive,  as  the  representative  of, 
or  as  the  substitute  for,  money,  any  such  bill,  check,  certificate, 
promissory  note,  or  other  security  of  the  kind  mentioned  in  preced- 
ing section,  whether  the  same  were  issued  within  or  without  the  state, 
such  person  or  corporation,  and  the  officers  and  agents  of  such  corpo- 
ration aiding  therein,  who  shall  offend  against  this  section,  shall  for 
every  such  offense  forfeit  and  pay  five  dollars,  and  shall  be  guilty  of 
a  misdemeanor. 

Code.  s.  2494;  1895,  c.  127;  R.  C,  c.  36,  s.  6. 

3713.  Crop  pests;  preventing  inspection.  If  any  one  shall  seek 

to  prevent  inspection  of  his  premises  as  ]irovided  in  law  for  extermi- 
nation of  crop  pests,  or  shall  otherwise  interfere  with  any  agent  of 
the  commission  while  in  performance  of  his  duties,  he  shall,  upon 
conviction,  be  fined  not  less  than  five  nor  more  than  fifty  dollars  for 
each  offense,  or  may  be  imprisoned  for  not  less  than  ten  nor  more 
than  thirty  days. 
1897,  c.  264,  s.  4. 

3714.  Ginseng;  digging,  between  April  and  September.  If  any 

person  dig  ginseng,  except  on  his  own  ])rennses,  or  for  the  purpose 
of  replanting  the  same,  between  the  first  day  of  April  and  the  first 
day  of  September,  he  shall  forfeit  and  pay  the  sum  of  ten  dollars 

10S7 


3714  CRniES— A'.V.V//.  Public  I'ulke.  Ch.  SI 

for  each  day  or  part  of  a  day's  dipjiinii',  and  shall  also  be  guilty  of  a 
misdemeanor. 

Code,  s.  1053;  1866-7,  c.  60;  1905,  c.  -211. 

Xote.     For  larceny  of  ginseng,  see  s.  .')502. 

3715.  Gambling.  If  any  jierson  play  at  any  game  of  chance  at 
which  inonej',  property  or  other  thing  of  value  is  bet,  whether  the 
same  be  in  stake  or  not,  both  those  who  play  and  those  who  bet 
thereon  shall  be  guilty  of  a  misdemeanor. 

1891,  e.  29. 

Note.     For  dealing  in  futures,  see  ss.  382.3-3826. 

3716.  Gambling:  allowing,  in  house  where  liquor  sold;  duty  of 

police  officers;  penalty.  If  any  keeper  of  an  ordinary,  or  house  of 
entertainment,  or  of  a  house  wherein  liquors  are  retailed,  shall  know- 
ingly suffer  any  game,  at  which  money  or  property,  or  anything  of 
value,  is  bet,  whether  the  same  be  in  stake  or  not,  to  be  played  in  any 
such  house,  or  in  any  part  of  the  premises  occupied  therewith;  or 
shall  furnish  persons  .so  ]ilaying  or  betting  either  on  said  premises 
or  elsewhere  with  drink  or  other  thing  for  their  comfort  or  sub- 
sistence during  the  time  of  play,  he  shall  be  guilty  of  a  mis- 
demeanor, and  fined  not  less  than  five  hamdred  dollars,  and  be 
imprisoned  not  less  than  six  months.  Any  person  who  shall  be  con- 
victed under  this  section  shall,  upon  such  conviction,  forfeit  his 
license  to  do  any  of  the  businesses  mentioned  in  this  section,  and 
shall  be  forever  debarred  from  doing  any  of  the  said  businesses  in 
this  state,  and  the  court  shall  embody  in  its  judgment  that  such  per- 
son has  forfeited  his  said  license,  and  no  board  of  county  commi.s- 
sioners,  board  of  town  commissioners  or  board  of  aldermen  shall 
hereafter  have  power  or  authority  to  grant  to  such  convicted  person 
or  his  agent  a  license  to  do  any  of  the  businesses  mentioned  herein. 
It  shall  be  the  duty  of  Qxcry  police  officer  of  the  cities,  towns  and 
villages  of  this  state  to  make  diligent  in(]uiry  and  to  exercise  con- 
stant watchfulness  to  discover  whether  any  of  the  offenses  enume- 
rated in  said  section  are  being  committed,  and  to  report  once  a  week 
under  oath  to  the  mayor  or  other  chief  officer  of  his  city,  town  or 
village,  whether  such  offenses  are  being  committed,  and  all  the  facts 
within  his  knowledge,  or  of  which  he  has  information  relating 
thereto,  and  if  any  such  police  officer  shall  know  or  have  information 
tliat  such  offenses  are  being  committed  and  shall  fail  or  neglect  to 
report  the  same  to  such  mayor  or  chief  officer,  together  with  all  the 
information  known  to  him,  as  to  the  person  or  persons  committing 
the  same,  the  time  and  place  of  the  conunission  and  the  names  of 
the  witnesses  thereto,  he  shall  bo  guilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  fined  or  imprisoned,  or  both,  in  the  discretion  of 
the  court  and  shall  forfeit  his  office.     And  it  shall  bo  the  dutv  of 


3710  CliniKH—XXXII.  J'uhlic  Police  Cli.   Si 

such  mayor  or  chief  officer  to  require  the  said  report  herein  provided 
for,  and  to  require  that  the  same  shall  be  verified  by  the  oath  of 
such  policeman,  and  if  it  appear  upon  such  reports  that  any  of 
the  said  offenses  have  been  committed,  it  shall  be  the  duty  of  such 
mayor  or  chief  officer  to  issue  his  warrant  for  the  arrest  of  the 
offender.  Any  such  mayor  or  chief  officer  of  any  of  the  said  cities, 
towns,  or  villages  Avho  shall  fail  or  neglect  to  require  the  reports 
herein  mentioned,  or  shall  fail  or  neglect  to  require  of  siTch  police 
officer  to  verify  the  same  upon  oath,  or  who  shall  refuse  or  neglect 
upon  its  appearing  from  sucli  reports  that  there  is  probable  cause 
to  believe  that  any  of  the  said  off'euses  have  been  conunitted  to  issue 
his  warrant  for  the  arrest  of  the  offender,  shall  be  giiilty  of  a  mis- 
demeanor. Any  person  committing  any  of  the  offenses  mentioned 
in  this  section  shall  be  liable  to  a  penalty  of  five  hundred  dollars, 
to  be  recovered  by  suit  in  the  superior  court  in  the  county  in  which 
such  offense  may  have  been  committed,  one-half  thereof  to  the  use 
of  the  person  bringing  said  suit,  and  one-half  to  the  school  fund  of 
the  county. 

Code,  s.  1043;  1901,  c.  T.')3 :  R.  ('..  o.  34,  s.  76;  1799.  c.  52fi:  1801.  c.  581; 
1831,  c.  26. 

3717.  Gambling,  faro-banks  and  tables,    if  any  person  shall 

open,  establish,  use,  or  keep  a  faro-bank  or  a  faro-table,  with  the 
intent  that  games  of  chance  may  be  played  thereat,  or  shall  play  or 
bet  thereat  any  money,  property,  or  thing  of  value,  whether  the  same 
bo  in  stake  or  not,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  at 
least  two  hundred  dollars  and  imprisoned  not  less  than  three  months. 

Code,  s.  1044;  R.  C,  c.  34,  s.  71;   1848,  c.  34;   1856-7,  c.  25. 

3718.  Gaming  tables,  betting  thereat.  If  any  person  shall  es- 
tablish, use  or  keep  any  gaming  table  (other  than  a  faro-bank)  by 
whatever  name  such  table  may  be  called,  at  which  games  of  chance 
shall  be  played,  he  shall  on  conviction  thereof  be  fined  not  less  than 
two  hundred  dollars,  and  be  imprisoned  not  less  than  thirty  days; 
and  every  person  who  shall  play  thereat  or  thereat  bet  any  money, 
property  or  thing  of  value,  whether  the  same  be  in  stake  or  not, 
shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than  ten  dollars. 

Todp,  s.  1045;  R.  ('..  o.  34,  s.  72:  1791,  c.  330:  179S,  c.  502,  s.  2. 

3719.  Gaming  tables;  allowing,  on  premises,  if  any  person  slwil 

knowingly  suffer  to  be  opened,  kept  or  \ised  in  his  house  or  any  part 
of  the  premises  occupied  therewith,  any  of  the  gaming  tables  by 
this  chapter  prohibited,  he  shall  forfeit  and  pay  to  any  one  who  will 
sue  therefor  two  hundred  dollars,  and  shall  also  be  guilty  of  a  mis- 
demeanor and  fined  and  imprisoned. 

Code,  s.  1046;  E.  C,  c.  34,  s.  73;  1798,  c.  502,  s.  3;  1800,  c.  5.  s.  2. 
Rev.  Vol.  1—05  1089  " 


3720  CRIMES— A'A'A'//.  Public  Police.  Cli.   81 

3720.  Gaming  tables  destroyed  by  justices.  All  justices  of  the 

peace,  sheriffs,  constables,  and  otKcers  of  police  are  hereby  authorized 
and  directed,  on  information  made  to  them  on  oath  that  any  gam- 
ing table  prohibited  to  be  used  by  this  chapter  is  in  the  possession 
or  use  of  any  person  within  the  limits  of  their  jurisdiction,  to  de- 
stroy the  same  by  every  means  in  their  power;  and  they  shall  call 
to  their  aid  all  the  good  citizens  of  the  county,  if  necessary,  to  effect 
their  destruction. 

Code,  s.  1049;  R.  C,  e.  34,  s.  74:   1791,  c.  336;   1798,  c.  502.  s.  2. 

3721.  Gambling;  justices  and  other  officers  to  summon  wit- 
nesses. All  justices  of  the  peace,  intendants  and  magistrates  of 
police,  mayors  of  towns,  and  judges  of  the  supreme  or  superior  court, 
who  shall  have  good  reason  to  believe  that  any  person  within  their 
jurisdiction  has  knowledge  of  the  existence  and  establishment  of 
any  faro-bank  or  faro-table,  or  gaming  tables,  prohibited  by  this 
chapter,  or  place  where  intoxicating  liquors  are  sold  contrary  to  law, 
in  any  town  or  county  within  their  several  jurisdictions,  and  such 
person  not  being  minded  to  make  voluntary  information  thereof 
on  oath,  then  it  shall  be  lawful  for  such  justice  of  the  peace,  in- 
tendant  and  magistrate  of  police,  mayor  of  town,  or  judge  of  su- 
preme or  superior  court,  to  issue  to  the  sheriff  of  the  county,  or  any 
constable  of  the  town  or  township  in  which  said  faro-bank  or  faro- 
table,  or  gaming  table  or  tables,  or  place  where  intoxicating  liquors 
are  sold  contrary  to  law,  are  supposed  to  be,  a  subpoena,  capias  ad 
testificandum,  or  summons  in  writing,  commanding  such  person  to 
appear  immediately  before  said  justice  of  the  peace,  intendant  or 
magistrate  of  police,  mayor  or  judge,  and  give  evidence  on  oath  as 
to  what  he  niay  know  toiiching  the  existence,  establishment  and 
whereabouts  of  said  gaming  table  or  tables,  faro-bank  or  faro-table, 
or  places  where  intoxicating  liquors  are  sold  contrary  to  law,  and 
the  names  and  personal  description  of  the  keepers  thereof;  and 
such  evidence  when  obtained  shall  be  considered  and  held  in  law 
as  an  information  on  oath,  and  said  justice,  intendant,  magistrate, 
mayor  or  judge,  may  thereupon  proceed  to  seize  and  arrest  said 
keepers  and  destroy  said  tables,  or  issue  process  therefor,  in  like 
manner  as  they  do  by  authority  of  the  preceding  section. 

Code,  s.  10r>0:  1858-9,  c.  34,  s.  1;  1889,  c.  355. 

3722.  Gambling;  money  to  be  seized.  All  moneys,  or  other  prop- 
erty or  thing  of  value  exhibited  for  the  purpose  of  alluring  persons 
to  bet  on  any  game,  shall  be  liable  to  be  seized  by  any  justice  of 
the  peace,  or  by  any  person  acting  under  his  warrant.  And  the 
moneys  or  other  j^roperty  or  thing  which  shall  be  so  seized,  shall 


3722  CRIMES— Z.YA7/.  Public  Police.  Ch.  81 

belong  one-half  to  the  person  seizing  them,  and  the  other  half  to 
the  use  of  the  poor. 

Code,  s.  1051;  R.  C,  c.  34,  s.  77;   1798,  c.  502,  s.  3. 

3723.  Gaming  tables;  opposing  destruction  of.  If  any  person 

shall  oppose  the  destruction  of  any  prohibited  gaming  table,  or  the 
seizure  of  any  moneys,  property,  or  other  thing  staked  on  forbidden 
games,  or  shall  take  and  carry  away  the  same  or  any  part  thereof 
after  seizure,  he  shall  forfeit  and  pay  to  the  person  so  opposed  one 
thousand  dollars,  for  the  use  of  the  state  and  the  person  so  opposed ; 
and  shall,  moreover,  be  guilty  of  a  misdemeanor. 
Code,  s.  1052;  R.  C,  e.  34,  s.  78;  1798,  c.  502,  s.  4. 

3724.  Insects,  ravages  of.    If  any  person  shall  wilfully  violate 

any  regulation  made  by  the  commissioner  and  board  of  agriculture 
for  the  destruction  of  insect  pests  he  shall  be  guilty  of  a  misde- 
meanor. 

1901,  c.  479,  s.  4,  subsec.  4. 

3725.  Lotteries;  advertising.  If  any  one  by  writing  or  printing 
or  by  circular  or  letter  or  in  any  other  way  advertise  or  publish 
an  account  of  a  lottery,  whether  within  or  without  this  state,  stating 
how,  when  or  where  the  same  is  to  be  or  has  been  drawn  or  what  are 
the  prizes  therein  or  any  of  them  or  the  price  of  a  ticket  or  any  share 
or  interest  therein  or  where  or  how  it  may  be  obtained,  he  shall  be 
guilty  of  a  misdemeanor. 

1887,  c.  211. 

3726.  Lotteries,  if  any  person  shall  open,  set  on  foot,  carry  on, 
promote,  make  or  draw,  publicly  or  privately,  a  lottery,  by  whatever 
name,  style  or  title  the  same  may  be  denominated  or  known ;  or 
if  any  person,  by  such  way  and  means,  expose  or  set  to  sale  any 
house  or  houses,  real  estate,  or  any  goods  or  chattels,  cash,  or  written 
evidence  of  debt,  or  certificates  of  claims,  or  anything  of  value 
whatsoever,  every  person  so  offending  shall  be  giiilty  of  a  misde- 
meanor, and  be  fined  not  exceeding  two  thousand  dollars,  or  impris- 
oned not  exceeding  six  months,  or  botli,  in  the  discretion  of  the 
court.  Any  person  who  engages  in  disposing  of  any  species  of  prop- 
erty whatsoever,  money  or  evidences  of  debt,  or  in  any  manner  dis- 
tributes gifts  or  prizes  upon  tickets  or  certificates  sold  for  that  pur- 
pose, shall  be  held  liable  to  prosecution  under  this  section. 

Code,  s.  1047;  R.  C.  c.  34.  s.  69;   1834,  c.  19,  s.  1;   1874-5,  c.  96. 

3727.  Lottery  tickets,  sale  of.  If  any  person  shall  sell,  barter 
or  dispose  of  any  lottery  ticket  or  order,  for  any  number  or  shares  in 
any  lottery,  or  shall  in  anywise  be  concerned  in  such  lottery,  by  act- 


3727  CRUIES— XXXII.  Public  Police.  C!i.   M 

ing  as  agent  in  the  state  for  or  on  behalf  of  anv  such  lottery,  to  be 
drawn  or  paid  either  out  of  or  within  the  state,  such  person  shall  be 
guilty  of  a  misdemeanor,  and  pimished  as  in  tlie  preceding  section. 
Code,  s.  1048:  R.  C,  c.  34,  s.  70;  1834,  e.  19,  s.  2. 

3728.  Letters;  wrongfully  opening  or  reading.    If  any  person 

shall  wilfully,  and  without  authority,  open  or  read,  or  cause  to  be 
opened  or  read,  a  sealed  letter  or  telegram,  or  shall  publish  the  whole 
or  any  portion  of  such  letter  or  telegram,  knowing  it  to  have  been 
opened  or  read  without  authority,  he  shall  be  guilty  of  a  misde- 
meanor. 

1889,  c.  41,  s.  2. 

3729.  IVIinor  going  in  barroom,  etc.  If  the  keeper  or  owner  of 

any  barroom,  billiard  room,  or  bowling  alley,  shall  allow  any  minor 
to  enter  or  remain  in  such  barroom,  billiard  room,  or  bowling  alley, 
if  before  such  minor  enters  or  remains  in  such  barroom,  billiard 
room,  or  bowling  alley,  the  owner  or  kee]:)er  thereof  has  been  notitied 
by  the  parents  or  guardian  of  such  minor  not  to  allow  such  minor 
to  enter  or  remain  in  such  barroom,  billiard  room,  or  bowling  alley, 
he  shall  be  guilty  of  a  misdemeanor  and  upon  conviction  be  fined  not 
exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty  days. 
1897,  c.  278. 

3730.  Nontransferable  script  to  laborers.   If  any  person  who 

employs  laborers  by  the  day,  week  or  month  shall  issue  in  payment 
for  such  labor  any  ticket  or  tickets,  certificate  or  other  script  bearing 
upon  their  face  the  word  "nontransferable,"  or  shall  issue  tickets, 
certificates  or  script  in  any  form  that  would  render  them  void  by 
transfer  from  the  person  to  whom  issiied ;  or  shall  refuse  to  pay  to 
the  person  holding  the  same  their  face  value,  he  shall  be  guilty  of 
a  misdemeanor,  and  upon  conviction  thereof  shall  be  fined  not  less 
than  ten  dollars  nor  more  than  fifty  dollars  for  each  offense,  or 
imprisoned  not  more  than  thirty  days. 

1889.  c.  280;  1891,  c.  78;  1891.  c.  4.56;  1891.  c.  40;  18(11.  vc.  107,  370;  189.-..  c. 
127;  1891,  cc.  167,  4.56. 

3731.  Obscene  literature.  If  any  person  .shall  exhibit  for  ilie 
purpose  of  gain,  lend  for  hire  or  otherwise  publish  or  sell  for  the 
purpose  of  gain,  or  exhibit  in  any  school,  college  or  otlicr  institution 
of  learning,  or  have  in  his  possession  for  tlie  purpose  of  sale  or  dis- 
tribution, any  obscene  book,  paper,  writing,  print,  drawing  or  otiier 
representation,  lie  shall  lie  guilty  of  a  uiisdeiiieaiior. 

1885,  c.  125. 


:)7:53  CRIMES— XA'AT/.  Piihllc  Police.  Ch.  81 

3732.  Pension  claims;  speculating  in.  If  any  person  shall  specu- 
late in  or  purchase  for  a  less  svim  than  that  to  which  each  may  be 
entitled  the  claims  of  any  soldier  or  sailor,  or  widow  of  a  deceased 
soldier  or  sailor,  allowed  under  the  provisions  of  the  pension  law, 
he  shall  be  guilty  of  a  misdemeanor  and  upon  conviction  shall  be 
fined  or  im25risoned,  or  both,  in  the  discretion  of  the  court. 

1903,  e.  273,  s.  12;   1885,  c.  214.  s.  12. 

3733.  Public  drunkenness.  If  any  person  shall  be  found  drunk 
or  intoxicated  on  the  jniblic  highway,  or  at  any  public  place,  or 
meeting,  in  the  counties  of  Dare,  Graham,  Buncombe,  Henderson, 
Jackson,  Ashe,  Stanly,  MadLson,  Gaston,  Cleveland,  Haywood, 
Macon,  Mecklenburg,  or  Rutherford,  or  in  Poplar  Branch  and  Fruit- 
ville  townships,  Currituck  county,  or  at  Pungo  in  Beaufort  county, 
he  shall  be  giiilty  of  a  misdemeanor  and  be  fined  not  exceeding  fifty 
dollars,  or  imprisoned  not  exceeding  thirty  days. 

1897,  c.  57;  1899,  cc.  87,  208,  008,  638;  1901,  e.  445;  1903,  e.  116;  1903,  c.  758; 
1903,  c.  124;   1903,  c.  523. 

3734.  Shooting  rifles  across  Currituck  sound  and  waters  of 

Dare  county,  if  any  per.son  shall  shoot  a  rifle  across  or  over  the 
waters  of  Currituck  sound,  or  the  waters  of  Dare  county,  except  in 
East  Lake  township,  he  shall  be  guilty  of  a  misdemeanor  and  be 
fined  not  less  than  ten  dollars  nor  more  than  fifty  dollars,  or  impris- 
oned not  less  than  ten  days  nor  more  than  thirty  days. 

1889,  c.  21,  ss.  1,  2;   1903,  c.  017. 

3735.  Tramps;  who  are;  discharged,  how.  If  any  person  shall 

go  about  from  jilace  to  place  begging,  or  subsisting  on  charity,  he 
shall  be  denominated  a  tramp,  and  piuiished  by  a  fine  not  exceeding 
fifty  dollars,  or  by  imprisonment  not  to  exceed  thirty  days :  Provided^, 
that  any  person  who  shall  furnish  satisfactory  evidence  of  good  char- 
acter shall  be  discharged  without  cost.  Any  act  of  begging  or  va- 
grancy by  any  person,  unless  a  well-known  object  of  charity,  shall  be. 
evidence  that  the  person  committing  the  same  is  a  tramp.  This  sec- 
tion shall  not  apply  to  any  woman,  or  minor  under  the  age  of  four- 
teen years,  or  to  any  blind  person. 

Code,  ss.  3828,  3829,  3831.  3833;  1897,  c.  20S  ;  1879.  c.  198,  ss,  1,  4,  0. 

3736.  Tramp  entering  dwelling  without  consent.  If  any  tramp 

shall  enter  any  dwelling-house  or  kindle  any  fire  on  the  highway  or 
on  the  land  of  another  without  the  consent  of  the  owner  or  occupant 
thereof,  or  shall  be  found  carrying  any  firearms  or  other  dangerous 
weapon,  or  shall  threaten  to  do  any  injury  to  any  ])erson,  or  to  the 
real  or  pei'sonal  estate  of  another,  lie  shall  be  punislied  by  imjn'ison- 
niont  at  the  disci'etion  of  the  court,  not  to  exceed  twelve  numtlis. 
Code,  s.  3829;  1879,  c.  198,  s.  2. 

1003 


3737  CRBIES— A"A"X//.  Fuhlic  Police.  Ch.  81 

3737.  Tramp  maliciously  injuring  person  or  property.   If  am- 

tramp  shall  wilfnllv  and  maliciously  do  any  injury  to  any  person 
or  to  the  real  or  personal  estate  of  another,  he  shall  be  punished 
by  imprisonment,  at  the  discretion  of  the  court,  not  to  exceed  three 
years. 

Code,  s.  3830;  1870,  e.  198,  s.  3. 

3738.  Tramp,  arrest  of.  Any  person,  upon  a  view  of  any  offense 
described  in  sections  throe  thousand  seven  hundred  and  thirty-tive, 
three  thousand  seven  hundred  and  thirty-six,  three  thousand  seven 
hundred  and  thirty-seven  and  three  thousand  seven  hundred  and 
thirty-eight  shall  cause  the  said  offender  to  be  arrested  upon  a  war- 
rant and  taken  before  some  justice  of  the  peace,  or  may  appreliend 
the  offender  and  take  him  before  a  justice  of  the  peace,  for  exam- 
ination, and,  on  his  conviction,  shall  be  entitled  to  the  same  fee  as 
a  sheriff. 

Code,  s.  3832;   187!»,  c.  1!)8,  s.  5. 

3739.  Trusts  and  monopolies.  If  any  person  in  any  way  violate 
any  of  the  provisions  of  the  law  against  trusts  and  monopolies,  he 
shall  be  gTiilty  of  a  misdemeanor  and  shall  be  fined  or  imprisoned, 
or  both,  in  the  discretion  of  the  court,  and  each  day  such  violation 
exists  after  conviction  and  liniil  jiidnuiout  in  the  iirst  trial  shall  con- 
stitute a  separate  offense. 

1901,  c.  580,  s.  12. 

3740.  Vagrancy,  if  any  person  shall  come  within  any  of  tlic 
following  classes,  he  shall  be  deemed  a  vagi-ant,  and  shall  be  fined  not 
exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty  days: 

1.  Persons  wandering  or  strolling  about  in  idleness  who  are  alilo 
to  work  and  have  no  property  to  support  them. 

2.  Persons  leading  an  idle,  immoral  or  profligate  life  who  have  no 
property  to  support  them  and  M-ho  are  able  to  work  and  do  not  work. 

3.  All  persons  able  to  work  having  no  property  to  supi)ort  them 
and  wlio  have  not  some  visible  and  known  means  of  a  fair,  hon(>st 
and  reputable  livelihood. 

4.  Persons  having  a  fi.xed  abode  who  have  no  visible  ]iroperty  to 
support  them  and  who  live  by  stealing  or  by  trading  in,  bartering  for 
or  buying  stolen  property. 

5.  Professional  gamblers  living  in  idleness. 

6.  All  able-bodied  men  who  have  no  other  visible  means  of  sup- 
port who  shall  live  in  idleness  upon  the  wages  or  earnings  of  tlicir 
mother,  wife  or  minor  child  or  children,  except  male  child  or  chil- 
(h'en  over  eighteen  years  of  age. 

190,';,  c.  391. 


3741  CRIMES— XZZ/Z7.  Public  Property.  Ch.   81 

XXXIIl.     Public  Peopeety. 

3741.  Cutting  timber  on  lands  before  obtaining  a  grant.  If  any 

person  shall  make  an  entry  of  any  lands,  and  before  perfecting  title 
to  same,  shall  enter  upon  such  lands  and  cut  therefrom  any  wood, 
trees  or  timber,  he  shall  be  guilty  of  a  misdemeanor.  One-half  of 
any  fine  collected  imder  this  section  shall  be  paid  to  the  informer 
and  one-half  to  the  school  fund  of  the  coimty  in  which  the  land  is 
situated.  Any  person  found  giiilty  under  the  provisions  of  this  sec- 
tion shall  further  pay  to  the  state  double  the  value  of  the  wood,  trees 
or  timber  taken  from  the  land,  and  it  shall  be  the  duty  of  the  solic- 
itor of  the  district  in  which  the  land  lies  to  sue  for  the  same. 

1003,  c.  272,  s.  4. 

3742.  Disorderly  conduct  in  public  buildings.  If  any  person  shall 

make  any  rude  or  riotous  noise  or  be  guilty  of  any  disorderly  con- 
duct in  or  near  any  of  the  public  buildings  of  the  state,  or  shall 
write  or  scribble  on,  mark,  deface,  besmear,  or  injure  the  walls 
of  any  of  the  public  buildings  of  the  state,  or  any  statue  or  monu- 
ment, or  who  shall  do  or  commit  any  nuisance  in  or  near  any  public 
building  of  the  state,  he  shall  be  guilty  of  a  misdemeanor.  The 
keeper  of  the  capitol  or  any  person  in  charge  of  any  of  the  public 
buildings  shall  have  authority  to  arrest  summarily  and  without  war- 
rant for  a  violation  of  this  section.  The  words  "public  buildings" 
as  used  in  this  section  shall  include  the  grounds  around  said  build- 
ings. 

Code,  s.  2308;  R.  C,  c.  103,  ss.  7,  8;  1829,  e.  29.  ss.  1,  2;  1842.  c.  47. 

3743.  Meridian  monument;  injuring,  or  failing  to  discharge  duty 

in  reference  thereto.  If  any  person  sliall  in  any  manner  injure,  de- 
face, remove  or  destroy  any  meridian  monument  or  tablets,  or  any 
part  thereof,  or  shall  fail,  neglect  or  refuse  to  do  and  perform  any 
act,  matter  or  thing  by  law  required  of  him  to  be  done  in  connec- 
tion with  such  monuments  or  tablets,  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  pay  a  fine  or  be  impris- 
oned, or  both,  at  the  discretion  of  the  court. 

1890,  c.  665.  s.  3;   1893,  c.  282,  s.  4. 

3744.  Phosphate  rock  in  rivers.  If  any  person  shall  dig,  mine 
or  remove  any  phosphate  rock  or  deposit  from  any  of  the  navigable 
waters  of  this  state,  except  for  the  purpose  of  prospecting  and  dis- 
covering as  allowed  by  law,  he  shall  be  guilty  of  a  misdemeanor,  and 
shall  also  forfeit  and  pay  ton  dollars  per  ton  for  every  ton  of  phos- 
phate rock  or  deposit  so  mined,  dug  or  removed,  one-half  to  the  use 
of  the  state,  and  the  other  one-half  to  go  to  the  informer. 

1891,  c.  476,  s.  8. 

ion.5 


3745  CEIMES— A'A'A7//.  Puhlir  Properttj.  C'li.   81 

3745.  Public  grounds  of  state  in  Raleigh.  If  any  person  shall 

wilfully  trespass  upon  any  of  the  public  lots  belonging  to  the  state 
in  the  city  of  Raleigh,  or  shall  cut  any  timber  or  commit  any  waste, 
or  shall  refuse  to  surrender  possession  after  the  ex])iration  of  their 
leases,  or  if  any  person  in  p)ossession  of  any  of  said  lots  above  men- 
tioned shall  refuse  to  leave  the  same  and  shall  further  refuse  to  sur- 
render possession  within  ten  days  after  demand  made  by  the  keeper 
of  the  Capitol,  said  person  shall  be  guilty  of  a  misdemeanor;  and 
it  shall  be  the  duty  of  said  keeper  of  the  capitol  to  rcjiort  all  such 
violations  of  law  to  the  governor  or  to  the  attorney  general,  and  if 
any  of  the  said  persons  shall  be  convicted,  they  shall  be  fined  or  im- 
prisoned at  the  discretion  of  the  court. 

Code,  s.  2313;   1870-1,  e.  282,  s.  4. 

3746.  Trespass  on  public  lands,  if  any  person  shall  erect  a 
building  on  any  public  lands  before  the  same  shall  have  been  sold 
or  gTanted  by  the  state,  or  on  any  lands  belonging  to  the  state  board 
of  education  before  the  same  shall  have  been  sold  and  conveyed  by 
them,  or  cultivate  or  remove  timber  from  any  of  said  lands,  such 
person  shall  be  guilty  of  a  misdemeanor ;  and,  when  any  person  shall 
be  in  possession  of  any  part  of  said  land,  it  shall  be  the  duty  of 
the  sheriff  of  the  county  in  which  the  land  is  situated,  and  he  is 
hereby  required,  to  give  notice  in  writing  to  such  person,  connnand- 
ing  him  to  depart  therefrom  forthwith ;  and  if  the  person  in  posses- 
sion, upon  being  so  notified,  shall  not,  within  two  weeks  after  the 
time  of  notice,  remove  therefrom,  the  sheriff  is  required  to  remove 
him  immediately,  and  if  necessary,  shall  summon  the  ]iower  of  the 
county  to  assist  him  in  so  doing. 

Code.  s.  1121  ;  R.  C.  e.  .34,  s.  42;   1823,  c.  1190;   1842,  c.  3G.  s.  4. 
XXXIV.       E.ULKOADS. 

3747.  Arrangement  of  cars.  If  any  oftioer  or  agent  of  a  railroad 
company  in  the  arrangement  of  cars  in  a  (rain  slinll  direct  or  know- 
ingly suffer  baggage,  freight,  merchandise,  m-  lumber  cars  to  be 
placed  in  the  rear  of  passenger  cars,  except  in  case  of  accident  or  ex- 
cept when  cars  are  provided  with  automatic  cou]ilers  or  brakes,  he 
shall  be  guilty  of  a  misdemeanor:  Provided,  this  section  shall  not 
apply  to  the  Wilmington  Sea-Coast  Railroad  Company. 

Code,  s.  1971;   1893,  c.  331;   1895,  c.  212;   1871-2,  c.  138,  s.  37. 

3748.  Beating  way  on  trains,  if  auy  person  other  than  a  rail- 
road employee  in  the  discharge  of  his  iluty,  withoiit  authority  from 
the  conductor  of  flic  train  or  by  permission  of  the  engineer  and  with 
the    intention    of    Iteing    transported    free    and    wiflidUl    imyiug    llie 


:;:iS  CRIMES— XA"A7T'.  Halhoads.  Ch.   81 

ii^iial  fare  for  such  transportation,  rides  or  attempts  to  ride  on  top 
of  anj'  car,  coach,  engine  or  tender,  on  any  railroad  in  this  state,  or 
on  the  draw-heads  between  cars,  or  under  cars  on  truss  rods,  or 
trucks,  or  in  any  freight  car,  or  on  a  platform  of  any  baggage  car, 
express  car  or  mail  car  on  any  train,  he  shall  be  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof,  shall  be  fined  not  exceeding 
fifty  dollars,  or  imprisoned  not  more  than  thirty  days.  Any  person 
charged  with  a  violation  of  this  section  may  be  tried  in  any  county 
in  this  state  through  which  such  train  may  pass  carrying  such  person, 
<:)r  in  any  county  in  which  such  violation  may  have  occun-ed  or  may 
be  discovered. 

1899,  c.  625;  1905,  c.  32. 

3749.  Discrimination  in  charges,  if  any  common  carrier  shall 
directly  or  indirectly  by  any  special  rate,  rebate,  drawback  or  other 
device,  charge,  demand,  collect  or  receive  from  any  person  a  greater 
or  less  compensation  for  any  service  rendered  or  to  be  rendered  in 
the  transportation  of  passengers  or  property  subject  to  the  provis- 
ions of  law  than  it  charges,  demands  or  collects  or  recei\'es  from 
any  other  person  or  persons  for  doing  for  him  or  them  a  like  and 
contemporaneous  service  in  the  transportation  of  a  like  kind  of 
traiSc  under  substantially  similar  circumstances  and  conditions ;  or 
shall  make  or  give  any  undue  or  unreasonable  preference  or  advan- 
tage to  any  particular  person,  company,  firm,  corporation  or  locality, 
or  any  particular  description  of  traffic  in  any  respect  whatsoever, 
or  shall  subject  any  particular  ]>crsou,  company,  firm,  corporation 
or  locality  or  any  particular  description  of  trafiic  to  any  undue  or 
unreasonable  prejudice  or  disadvantage  in  any  respect  whatsoever, 
such  person  or  corporation  shall  be  upon  conviction  thereof  fined 
not  less  than  one  thousand  nor  more  than  five  thousand  dollars  for 
each  and  every  off^ense. 

1890,  c.  164,  s.  1.1. 

3750.  Discriminating  against  Atlantic  and  l\lorth  Carolina  Rail- 
road. If  any  railroad  in  North  Carolina  shall  discriminate  against 
the  freights  received  from  the  Atlantic  and  North  Carolina  Rail- 
road, or  shall  make  rates  by  which,  either  directly  or  indirectly,  by 
rebates  or  otherwise,  freights  may  be  delivered  at  less  rate  when  re- 
ceived from  other  points  than  from  points  along  the  Altantic  and 
North  Carolina  Railroad  in  proportion  to  distance  hauled,  it  shall 
be  guilty  of  a  misdemeanor,  and  shall  be  punished  by  a  fine  of  not 
less  than  one  hundred  dollars  for  each  and  every  violation  thereof. 
An  indictment  for  the  misdemeanor  may  be  found  and  tried  either 
in  the  courts  where  the  goods  were  shipped  or  delivered,  but  the 
court  in  which  the  indictment  for  the  offense  is  first  found  shall 
have  exclusive   jurisdiction. 

1889,  c.  358. 

1007 


3751  CRIMES— ZZA7  r.  Ilailroads.  Ch.   M 

3751.  Discrimination  against  connecting  lines.  If  any  common 

carrier  shall  not  afford  all  reasonable,  proper  ami  e(iual  facilities  for 
the  interchange  of  traffic  between  their  respective  lines  and  for  the 
forwarding  and  delivering  of  jiassengers  and  freights  to  and  from 
their  several  lines  and  -those  connecting  therewith,  or  shall  discrimi- 
nate in  their  rates  and  charges  against  such  connecting  lines,  or  if 
any  connecting  lines  shall  not  make  as  close  connection  as  practica- 
ble for  the  convenience  of  the  traveling  public,  or  shall  not  obey  all 
rules  and  regulations  made  by  the  corporation  commission  relating 
to  trackage,  it  shall  be  punished  by  a  fine  of  not  less  than  five  hun- 
dred dollars  nor  exceeding  five  thousand  dollars  for  each  and  every 
offense. 

1899,  e.  164,  s.  21. 

3752.  Entering  cars  after  forbidden.  If  any  person  shall  enter 

into  a  railroad  passenger  car,  or  baggage  car,  or  mail  car,  or  caboose 
car,  or  upon  the  platforms  of  said  cars  after  being  forbidden  so  to 
do  by  the  conductor  or  his  assistants,  or  the  baggage  master  or  other 
person  in  charge  of  said  cars,  unless  said  persons  enter  said  cars  or 
on  said  platforms  as  a  passenger  or  in  some  official  capacity  author- 
ized by  law,  or  on  biisiness  with  a  passenger  or  some  official  or  em- 
ployee of  the  railroad  or  other  like  piirpose,  for  every  violation  of 
this  section  the  person  so  offending  .shall  be  guilty  of  a  misdemeanor, 
and  shall  be  fined  not  exceeding  ten  dollars. 

Code,  s.   1970;   1883,  c.  .3.51. 

3753.  Failure  to  construct  cattle-guards  and  crossings.  If  any 

incorporated  company  operating  an}'  railroad  passing  through  and 
over  the  land  of  any  person  now  enclosed,  or  which  may  hereafter 
become  enclosed,  shall  fail,  at  its  own  expense,  to  construct  and  con- 
stantly maintain  in  good  and  safe  condition,  good  and  sufficient  cat- 
tle-giiards  at  the  points  of  entrance  \ipon  and  e.xit  from  said  enclosed 
land,  or  shall  fail  to  make  and  keep  in  constant  repair  crossings  to 
any  plantation  road  thereupon,  s\ich  corporation  shall  be  guilty  of 
a  misdemeanor,  and  fined  in  the  discretion  of  the  court. 

Code,   s.    1975;    1883,   c.    394,   ss.    1,   2. 

3754.  Injuring  or  obstructing,    if  any  pcrsim  shall  wilfully  and 

maliciously  put  <ir  ])lacc  any  mailer  uv  thing  u])on,  over  or  near  any 
railroad  track;  or  sh.ill  wilfully  and  maliciously  destroy,  injure,  or 
remove  the  road-bctl,  en-  any  part  thereof,  oi-  any  rail,  sill,  or  other 
]iart  of  the  fixture  a])pnvt('nant  to,  or  constituting  or  su'|)])orting  any 
jiortion  of  the  track  of  such  railr()ad  ;  or  shall  wilfully  and  mali- 
ciously do  any  other  tiling  M'ith  intent  to  obstruct,  stop,  liindcr,  delay, 
or  displace  the  (•ars  I  rii\-eliug  on  sucli  road,  or  to  stop,  liimlei'  ky  delay 


3754  CRIMP:S— A'A'X/1'.  Railroads.  Ch.  81 

the  i^assengers  or  others  passing  over  the  same;  or  shall  wilfully 
and  maliciously  injure  the  road-bed  or  the  fixtures  aforesaid,  or  any 
part  thereof,  with  any  other  intent  whatsoever,  such  person  so  offend- 
ing shall  be  guilty  of  a  misdemeanor,  and  fined  not  exceeding  one 
thousand  dollars  nor  less  than  two  hundred -dollars,  and  be  impris- 
oned in  the  state's  prison  or  county  jail  not  less  than  four  months 
nor  more  than  ten  years,  and  shall  be  committed  to  jail  till  he  find 
surety  for  his  good  behavior,  for  a  space  of  time  not  less  than  three 
nor  more  than  sev^en  years.  And  if  it  shall  happen  that  by  reason 
of  the  commission  of  the  offenses  aforesaid,  or  any  of  them,  any 
engine  or  car  shall  be  displaced  from  the  track,  or  shall  be  stopped, 
hindered  or  delayed,  so  that  any  one  thereby  be  instantly  killed,  or 
so  wounded  or  hurt  as  to  die  therefrom  in  twelve  caleuchir  months 
thereafter,  or  shall  thereby  be  maimed  or  be  disabled  in  the  use  of 
any  limb  or  member,  then,  and  in  every  such  case,  the  party  so 
offending,  his  counselors,  aiders  and  abettors,  on  conviction,  shall 
suffer  death,  if  the  jjersdns  were  killed,  and  shall  be  imprisoned  in 
the  state's  prison  not  less  than  five  nor  more  than  sixty  years,  if 
the  persons  were  maimed  or  disabled.  And  if  any  person  shall  mali- 
ciously destroy  or  injure  any  plank-road,  turnpike  or  canal,  or  any 
ap]uirtenance  or  fixture  belonging  thereto,  or  used  therewith,  or  shall 
maliciously  destroy  or  injure  any  lock,  dam  or  sluice,  the  same 
being  a  part  of  any  work  erected  or  made  for  the  purpose  of  navi- 
gation, or  improving  the  navigation  of  any  water,  the  person  so 
offending  shall  be  guilty  of  a  misdemeanor,  and  shall  suffer  the 
like  punishment  as  in  this  section  provided  for  maliciously  injur- 
ing a  railroad. 

Code,  s.  1098;  K.  ('.,  c.  U,   ss.  99,  100;  1838,  e.  38;  1879,  c.  -255,  s.  2. 

3755.  Injuries  to,  without  malice,  if  any  person,  unlawfully 
au<l  on  purpose,  but  without  malice,  shall  commit  any  of  the  offenses 
mentioned  in  the  preceding  section,  he  shall  be  guilty  of  a  mis- 
demeanor. And  if  it  shall  happen  that  by  reason  of  the  commission 
of  any  such  offense  any  person  shall  be  instantly  killed,  or  so 
woimded  or  hurt  as  to  die  therefi'om  in  twelve  calendar  month's 
thereafter,  or  shall  thereby  be  maimed  or  disabled  in  the  use  of  any 
limb  or  member,  then,  and  in  every  such  case,  the  party  so  offending, 
his  coimselors,  aiders  and  abettors,  shall  be  imprisoned  not  less  than 
twelve  months,  and  fined  at  the  discretion  of  the  court. 

Code,  s.  1099;  R.  C,  c.  34,  s.  101. 

3756.  Injuries  to  property.  If  any  person  or  persons  shall  wil- 
fully do  or  cause  to  be  (hjno  any  act  or  acts  whatever  whereby  any 
building,  construction  or  work  of  any  railroad  corporation,  or  any 
engine,  machine  or  structure  or  any  matter  or  thing  appertaining 


3756  CEIMES— A'A'A'/T'.  Bailroads.  Ch.   81 

to  the  same  shall  be  stopped,  obsti-ucted,  impaired,  weakened,  in- 
jiired  or  destroyed,  he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  1974;  1871-2,  c.  138,  s.  39. 

3757.  Intoxicated  person  entering  train.  If  any  intoxicated  per- 
son, after  being  forbidden  by  the  conductor,  captain,  or  other  person 
having  charge  of  any  railroad  train,  steamboat,  or  other  conveyance 
for  the  use  of  the  traveling  public,  shall  enter  such  train,  boat  or 
other  conveyance,  he  shall  for  every  violation  of  this  section  be  guilty 
of  a  misdemeanor. 

1885,  c.  358,  s.  3. 

3758.  Intoxicated  engineer,  conductor,  brakeman.  If  any  per- 
son shall,  Avhile  in  charge  of  a  locomotive  engine  running  upon  the 
railroad  of  any  such  corporation  or  while  acting  as  the  conductor  or 
brakeman  of  a  car  or  train  of  cars  on  any  such  railroad,  be  intoxi- 
cated, he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  1972;   1891,  c.  114:   1871-2,  c.  138,  s.  38. 

3759.  Malicious  removal  of  waste  or  packing.  If  any  person 

shall  wilfully  and  maliciouslj'  take  or  remove  the  waste  or  packing 
from  any  journal  box  or  boxes  of  any  locomotive,  engine,  tender, 
carriage,  coach,  car,  caboose  or  truck  used  or  operated  upon  any  rail- 
road, whether  the  same  be  operated  by  steam  or  electricity,  he  shall, 
upon  conviction  thereof,  be  fined  or  imprisoned  in  the  jail  or  state's 
prison,  in  the  discretion  of  the  court. 
1905,  c.  335. 

3760.  Officers  failing  to  turn  over  property  to  successors.   If 

tlie  president  and  directors  of  the  several  railroads,  and  any  per- 
son acting  under  them,  shall,  upon  demand,  fail  or  refuse  to  account 
with  the  president  and  directors  elected  or  appointed  to  succeed  them, 
and  to  transfer  to  them  forthwith  all  the  money,  books,  papers, 
cho.ses  in  action,  property  and  effects  of  every  kind  and  description 
belonging  to  such  company,  they  shall  be  guilty  of  a  felony, 
and  shall  be  punished  by  imprisonment  in  the  state's  prison  for  not 
less  than  one  nor  more  than  five  years,  and  be  fined  at  the  discretion 
of  the  court.  All  persons  conspiring  with  any  such  president,  di- 
rectors or  their  agents  to  defeat,  delay  or  hinder  the  execution  of 
this  section  shall  be  guilty  of  a  misdemeanor,  and  punished  in  like 
manner.  The  governor  is  hereby  authorizcil,  at  the  recpicst  of  the 
president,  directors,  and  other  officers  of  any  railroad  comjiany,  to 
make  requisition  upon  the  governor  of  any  other  state  for  the  appre- 
hension of  any  such  ])resident  failing  to  com]dy  with  this  section. 

Cmlc,  ss.  2001,  2002:   1870-1,  c,  72.  ss,  1-3, 


3701  CRIMES— ZZX/T.  Railroads.  Ch.   81 

3761.  Passengers  with  second-class  tickets  riding  in  first- 
class  cars.  Any  passenger  purcliasiug  or  liuldiug  a  second-class 
ticket,  after  being  requested  or  directed  by  any  conductor  or  other 
otHcer  in  charge  of  any  train  on  any  railroad  or  steamboat  in  this 
state,  riding  in  any  first-class  coach  or  cabin,  refuses  to  pay  the  dif- 
ference between  a  first-class  and  a  second-class  fare  or  rate,  or  refuses 
to  go  into  the  second-class  coach  or  cabin,  of  any  railroad  or  steam- 
boat company,  when  there  shall  be  a  comfortable  second-class  coach 
or  cabin  in  said  train  or  on  said  steamboat,  he  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined  not  exceed- 
ing fifty  dollars  or  imprisoned  not  exceeding  thirty  days.  Any  jus- 
tice of  the  peace  in  the  county  where  such  offense  is  committed 
shall  have  jurisdiction  of  said  offense,  upon  sworn  complaint  of 
any  officer  of  such  railroad  or  steamboat  company. 

1903,  c.  795. 

^3762.  Pooling  freights.  If  any  person  shall  be  concerned  in  pool- 
ing freights  or  shall  directly  or  indirectly  allow  or  accept  rebates  on 
freights  he  shall  be  giiilty  of  a  misdemeanor,  and  upon  conviction 
shall  be  fined  not  less  than  one  thousand  dollars  or  imprisoned  not 
less  than  twelve  months. 
Code,  s.  196S;  1879,  e.  237,  s.  2. 

3763.  Shooting  or  throwing  at  cars.  If  any  person  shall  wil- 
fully and  unhiwfiilly  oast,  or  throw,  or  shoot  any  stone,  rock,  bullet, 
shot,  pellet,  or  other  missile,  at,  against  or  into,  any  railroad  car, 
locomotive  or  train,  while  the  said  car  or  locomotive  shall  be  in  prog- 
ress from  one  station  to  another,  or  while  the  said  car,  locomotive  or 
train  shall  be  stopped  for  any  purpose,  the  person  so  offending  shall 
Ije  guilty  of  a  misdemeanor,  and  punished  by  fine  or  imprisonment 
in  the  county  jail  or  state's  prison,  at  the  discretion  of  the  court. 

Code,  s.  1100;  1887,  c.  19;  1876-7,  c.  4. 

3764.  Tickets,  unlawful  sale  of.  If  any  person  shall  sell  or 
deal  in  tickets  issiied  by  any  railroad  company,  tmless  he  is  a  duly 
authorized  agent  of  said  railroad  company,  or  shall  refuse  upon 
demand  to  exhibit  his  authority  to  sell  or  deal  in  said  tickets  he  shall 
be  guilty  of  a  misdemeanor. 

1895.  c.  83,  s.  1. 

3765.  Train  robbery.  If  any  person  shall  enter  upon  any  loco- 
motive engine,  car  or  cars  on  any  railroad  in  this  state,  and  by 
threats,  the  exhibition  of  deadly  weapons,  or  by  the  discharge  of  any 
pistol  or  gun  on,  in  or  near  any  such  engine,  car  or  cars,  shall  induce 
or  compel  any  person  on  such  engine,  car  or  cars,  to  submit  and 


3765  CEIMES— ZZX/y.  Bailroads.  C'h.   81 

deliver  up,  or  allow  to  be  taken  therefrom,  or  from  him  anything 
of  value,  he  shall  be  guilty  of  train  robbery,  and  on  conviction 
thereof,  shall  be  punished  by  imprisonment  in  the  state's  prison 
not  less  than  ten  years  nor  more  than  twenty  years. 

1895,  e.  204,  s.  2. 

3766.  Train  robbery,  attempt.  If  any  person  or  persons  shall 
stop,  or  cause  to  be  stopped,  or  impede,  or  cause  to  be  impeded, 
or  conspire  together  for  that  purpose,  any  locomotive  engine,  or 
any  car  or  cars,  on  any  road  in  this  state,  by  intimidation  of  those 
in  charge  thereof  by  force,  threats,  intimidation,  or  otherwise,  of 
taking  therefrom  or  causing  to  be  delivered  up  to  such  person  or 
persons  forcing,  threatening  or  intimidating,  anything  of  value,  to 
be  appropriated  to  his  or  their  own  use,  he  shall  be  guilty  of  at- 
tempting train  robbery,  and,  on  conviction  thereof,  shall  be  punished 
by  confinement  in  the  state's  prison  not  less  than  two  years  nor  more 
than  twenty  years. 

1895,  c.  204,  s.  1, 

3767.  Unauthorized  railroads.  If  any  person  shall  make  or  es- 
tablish any  canal,  turnpike,  tramroad,  railroad  or  plankroad,  with 
intent  to  use  the  same  to  transport  passengers  other  than  persons  or 
members  owning  such  canal  or  road,  he  shall  be  guilty  of  a  misde- 
meanor. This  section  shall  not  apply  to  any  narrow-gauge  railroad 
or  tramroad  the  principal  business  of  which  is  the  transportation 
of  logs,  liunber  or  other  articles  for  the  owners  of  such  roads. 

Code,  s.  1717;  1901,  c.  282. 

3768.  Unreasonable  rates.  If  any  railroad  doing  business  in 
this  state  shall  charge,  collect,  demand  or  receive  more  than  a  fair 
and  reasonable  rate  of  toll  or  compensation  for  the  transportation 
of  passengers  or  freight  of  any  de^^criiition,  or  fur  tlie  use  and  trans- 
portation of  any  railroad  car  upon  its  track  or  any  of  the  branches 
thereof  or  upon  any  railroad  in  this  state  which  has  the  right, 
license  or  permission  to  use,  operate  or  control  the  same,  it  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall 
be  fined  not  less  than  five  hundred  nor  more  tlian  five  thousand  dol- 
lars. 

1899,  c.  164,  s.   12. 

XXXV.     Roads   .\nd   Bhidoes. 

3769.  Barbed-wire  fences  along.   If  any  person  sluUl  erect  or 

maintain  a  l)arbod-wirp  fenc(>  along  any  imlilic  road  or  liighway,  and 
williin  ten  yards  thereof,  wit]io\it  putting  a  vailing  or  jdank  on 
top  of  said  fence  not   less  tluin   tlircc   iuclics   in   widlh,   lie  sliall  be 


"3769  CRIMES— XZZF.  Roads  and  Bridges.  Ch.   si 

guilty  of  a  misdemeanor  and  fined  or  imprisoned  at  the  discretion  of 
the  court.  This  section  shall  apply  to  the  counties  of  Rowan,  Swain, 
ITayAvood,  Catawba,  Greene,  Richmond,  Stokes,  Rutherford,  Forsyth, 
Yadkin,  Brunswick,  Durham,  Wilkes,  Stanly,  Cumberland,  Iredell, 
Macon  and  Rockingham. 

1895,  e.  65;  1899,  e.  43,:  1899,  c.  225;  1905,  c.  220. 

3770.  Board  of  supervisors  failing  to  make  reports.   If  any 

board  of  supervisors  shall  fail  to  make  any  report  required  by  law, 
or  to  discharge  any  duty  imposed  by  law,  the  members  thereof  shall 
be  guilty  of  a  misdemeanor.  The  indictment  may  be  against  the 
board  jointly,  or  against  the  justices  composing  said  board,  or  any 
one  or  more  of  them  severally. 
Code,  s.  2024;  1879,  c.  82,  s.  10. 

3771.  Bridges,  injuring.  If  any  person  shall  imlawfully  and 
wilfully  demolish,  destroy,  break  or  tear  down,  injure  or  damage 
any  bridge  across  any  of  the  creeks  or  rivers  or  other  streams  in  the 
state,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  or  imprisoned, 
or  both,  in  the  discretion  of  the  court. 

Code,  s.  993;   1883,  e.  271. 

3772.  Bridges,  failure  to  repair.  If  any  owner  of  a  water-mill, 
situated  on  any  public  road  or  any  other  person  whose  duty  it  is 
to  keep  up  and  repair  bridges  built  across  any  ditch,  drain,  or  canal, 
in  the  chapter  entitled  Roads,  Bridges  and  Ferries,  shall  refuse  or 
neglect  to  keep  up  and  repair,  or  shall  suffer  to  remain  out  of  repair 
for  the  space  of  ten  days,  any  bridge  which  by  law  he  may  be  I'e- 
quired  to  keep  up  and  repair,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  1086;  R.  C,  c.  34,  s.  40;  1819,  c.  941,  s.  3. 

3773.  Bridges,  failure  to  maintain.  If  any  person,  who  is  liable 

to  keep  np  and  maintain  any  bridge  across  the  public  road,  as  pro- 
vided by  section  one  thousand  seven  hvmdi'ed  and  seventy-two,  shall 
pemiit  such  bridge  to  remain  out  of  repair  for  ten  days,  nnless  un- 
avoidably prevented,  he  shall  be  guilty  of  a  misdemeanor. 

Code,  s.  2037;  R.  C,  c.  101,  s.  25;  1817,  c.  941,  s.  2;  1876-7,  c.  90;  1876-7, 
e.  211. 

3774.  Bridges:  vessels  not  fastened  to.   if  any  person  shall 

fasten  any  decked  vessel  or  steamer  to  any  bridge  that  crosses  a 
navigable  stream,  he  shall  be  guilty  of  a  misdemeanor,  and  in  the 
case  of  a  bridge  that  crosses  a  county  line,  may  be  prosecuted  in 
either  county. 

Code,  s.  2050;  1887,  c.  93,  s.  3 ;  R.  C,  c.  101,  s.  31;  R.  S..  c.  104:  1858-9,  c. 
58,  s.  1. 

1103 


377.-3  CEI-MES— A'A'AT.  lloads  and  Bridges.  Ch.   ,M 

3775.  Bridges,  failure  of  railroads,  etc.,  to  keep  up.   If  am 

railroad,  jilank-rciail,  or  turnpike  eoiujianj^  shall  fail  to  keep  iip, 
at  its  own  exjiense,  all  bridges  on  or  over  county  or  incorporated 
roads,  which  it  has  made  necessary  to  be  built  in  establishing  its 
road,  it  shall  bo  guilty  of  a  misdemeanor,  and  fined. 

Code,  s.  2054;  R.  C,  c.  101,  s.  35;    18.38,  c.  5,  ss.  1-4. 

3776.  Churches,  way  to.  If  any  person  shall  maliciously  stop 
ujD  or  obstruct  the  waj'  leading  to  any  place  of  public  worship,  or 
to  any  spring  or  well  commonly  used  by  the  congregation,  he  shall 
be  guilty  of  a  misdemeanoi',  and  fined  not  more  than  fifty  dollars  or 
imprisoned  not  more  than  thirty  days. 

Code,  s.  3669;  R.  C,  c.  07,  s.  5;  1785,  c.  241. 

Note.     For  injuries  to  gates  across  cartways,  see  s.  2694. 

3777.  Damage  to  roads  by  hauling  logs,  how  paid,  if  any  of 

the  public  roads  in  Anson,  Beaufort,  Bertie,  Clay,  Columbus,  Curri- 
tuck, Dare,  Gates,  lialifax,  Lenoir,  Macon,  Pasquotank,  Pitt,  Kuther- 
ford,  Stokes,  Swain,  Tyrrell  and  Yancey  counties  shall  be  used  by 
any  person  engaged  in  hauling  logs  or  wood,  whether  such  hauling 
be  by  the  employees  or  agents  of  any  other  ^jcrson,  company  or  cor- 
poration, or  by  contractors  for  any  other  person,  company  or  corpo- 
ration, and  the  public  roads  shall  become  damaged  by  such  use,  upon 
complaint  made  to  the  chairman  of  the  board  of  supervisors  of  the 
])ublic  roads  of  the  township  in  which  such  damaged  road  is  situ- 
ated, he  shall  summon  the  person,  company  or  corporation,  or  the 
manager  of  such  person,  company  or  corporation,  alleged  by  such 
complainant  to  have  damaged  such  road,  before  a  called  or  regular 
meeting  of  the  board  of  road  supervisors  of  such  township  in  which 
such  alleged  damaged  road  is  situated,  within  ten  days  after  com- 
plaint is  made  to  him,  and  said  board  of  road  supervisors  shall  inves- 
tigate by  visiting  and  inspecting  such  damaged  road,  and  they  shall 
hear  evidence  on  oath,  as  to  the  condition  of  siich  damaged  road 
and  the  cause  of  its  bad  condition,  and  the  damage  done  to  surh 
road  by  the  hauling  of  logs  over  such  road  by  such  person,  company 
or  corporation;  and  if  the  board  of  supervisors  shall  find  such  road 
or  any  part  thei-eof  damaged  by  the  hauling  of  logs  over  the  same, 
the  person,  company  or  corporation,  or  their  agents,  employees  or 
contractors,  alleged  in  the  complaint  to  have  damaged  such  road  or 
any  part  thereof,  they  .shall  assess  against  such  person,  company,  or 
corporation  an  anifiunt  of  mone\'  suflicient  to  repair  such  road.  And 
the  board  of  road  supervisors  shall  return  to  the  clerk  of  the  superior 
court  the  amount  of  such  assessment  as  a  judgnnent  of  the  board  of 
township  road  supervisors,  and  the  clerk  shall  docket  this  transcript 


3777  CRIMES— A'ZZT.  Boads  and  Bridges.  Vh.   81 

and  it  shall  thereuijon  become  a  judgment  of  the  superior  court,  and 
the  clerk  shall  issue  execution  against  such  delinquent  person  or  cor- 
poration for  the  assessed  damages  as  other  executions  and  the  sheriff 
shall  pay  the  proceeds  of  said  judgnnent  to  the  clerk  of  the  superior 
court,  to  be  applied  by  the  board  of  townsliip  supervisors  to  the 
repair  of  such  damaged  road. 

1889,  c.  503,  ss.  1-.3;   189.3,  c.  416;    1899,  o.  712:   l!»l)l.  o.  18!). 

3778.  Damage  to  road  by  hauling  logs  or  wood.  If  any  person, 

company  or  corporation  shall  damage  any  public  road,  bridge  or  cause- 
way by  hauling  logs  or  sawmill  timber  thereon,  and  shall  not  repair 
the  damage  done  thereto  within  five  days  after  being  notified  of  said 
damage  by  the  overseer  of  said  road,  or  by  any  member  of  the  board 
of  supervisors  of  the  township  in  which  said  damaged  road  is  situated, 
he  shall  be  giiilty  of  a  misdemeanor,  and  shall  be  fined  not  less  than 
ten  nor  more  than  fifty  dollars,  or  be  im])risoue(l  not  exceeding  thirty 
days :  Provided,  if  any  person  shall  pay  the  damage  as  assessed  by  the 
board  of  supervisors  for  injury  to  such  road,  the  payment  of  such 
damages  shall  be  a  complete  bar  to  any  criminal  prosecution  under 
this  section,  and  if  any  criminal  prosecution  shall  have  been  com- 
menced prior  to  the  payment  of  said  damages,  all  further  proceedings 
in  said  criminal  prosecution  may  be  ended  by  the  defendant  paying 
the  cost  necessarily  incurred  in  said  criminal  prosecution  and  sat- 
isfying the  court  that  said  damages  and  all  proper  costs  have  been 
paid. 

1893,  e.  416,  s.  2;  1889,  c.  503,  s.  2. 

3779.  Failure  to  work.  If  any  person  liable  to  work  on  the  road 
shall  fail  to  attend  and  work,  as  provided  by  law,  when  summoned 
so  to  do,  unless  he  shall  have  paid  the  one  dollar  as  provided,  he 
shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than  two  dollars 
nor  more  than  five  dollars,  or  imprisoned  not  exceeding  five  days, 
and  if  any  defendant  shall  be  unable  to  discharge  the  judgment  and 
costs  that  may  be  recovered  against  him,  the  costs  shall  be  paid  by 
the  county. 

Code,  s.  2020;  1885,  c.  392;  R.  C,  c,  101,  s.  11;  1817,  c.  935,  s.  2;  182.5,  c. 
1287;  1879,  c.  82,  s.  6. 

3780.  Fast  driving  over  bridges.  If  any  person  shall  ride  or 
drive  over  any  public  bridge  at  a  rate  of  speed  faster  than  a  walk, 
he  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be 
fined  not  more  than  fifty  dollars  or  imprisoned  not  more  than 
thirty  days :  Provided,  that  this  section  shall  not  apply  to  any  bridge 
unless  the  county  commissioners  shall  keep  posteil  at  each  end  of 
such  bridge  a  notice  forbidding  the  riding  or  driving  over  such  bridge 
at  a  rate  of  speed  faster  than  a  walk. 

Rev.  Vol.  1—66  1105 


3781  CRIMES— XXXr.  Boads  and  Bridges.  Ch.   81 

3781.  Gates  across  public  roads,  leaving  open.  If  any  person 

shall  leave  open,  break  down  or  otherwise  injure  any  gate  lawfully 
across  any  public  road,  he  shall  forfeit  and  pay  for  every  such  offense 
ten  dollars  to  the  person  erecting  the  same  or  his  assigns  of  the  land, 
and  if  the  offense  shall  be  maliciously  or  wantonly  done,  he  shall  be 
guilty  of  a  misdemeanor. 
Code,  2058;  1885,  e.  45. 

3782.  High-water  signals  established.  If  any  overseer  of  roads 

shall  fail  to  establish  high-water  marks  or  signals  on  both  sides  of 
any  river,  creek  or  stream  which  is  used  as  a  ford  for  a  public  high- 
way, and  to  permanently  fix  the  same,  he  shall  be  guilty  of  a  misde- 
meanor. 
1889,  c.  517. 

3783.  Injury  to  sign-boards  or  mile-posts,  if  any  person  shall 

needlessly  remove,  knock  down  or  deface  any  public  sign-post,  arms, 
or  any  mile-mark,  he  shall  be  guilty  of  a  misdemeanor. 
Code,  s.  2031;  R.  C,  c.  101,  s.  19;   1784,  c.  227,  s.  11;   1812,  c.  846. 

3784.  Obstruction  of  roads.  If  any  person  shall  wilfully  alter, 
change  or  obstruct  any  highway,  cartway,  mill  road  or  road  leading 
to  and  from  any  church  or  other  place  of  pTiblic  worship,  whether 
the  right  of  way  thereto  be  secured  in  the  manner  provided  for 
by  law  or  by  purchase,  donation  or  otherwise,  such  person  shall  be 
guilty  of  a  misdemeanor,  and  fined  or  imprisoned,  or  both.  If 
any  person  shall  hinder  or  in  any  manner  interfere  with  the  mak- 
ing of  any  road  or  cartway  laid  off  according  to  law,  he  shall  be 
guilty  of  a  misdemeanor,  and  punished  by  fine  or  imprisonment, 
or  both,  in  the  discretion  of  the  court. 

Code,  s.  2065;  1872-3,  c.  189,  s.  6;  1S83,  c.  383. 

3785.  Overseer;  neglect  of  duty.  If  any  overseer  of  a  road  shall 
wilfully  neglect  any  of  the  duties  imposed  on  him  by  law,  he  shall 
be  guilty  of  a  misdemeanor,  and  fined  not  to  exceed  fifty  dollars  or 
imprisoned  not  to  exceed  thirty  days. 

Code,  s.  1054;  1889,  c.  .504;  R.  C,  c.  34,  s.  39;  1786,  c.  256,  s.  4. 

XXXVI.     Eevende. 

3786.  Agent  of  corporation  failing  to  pay  taxes,  if  any  agent 

or  oflicer  of  a  corporation,  after  having  been  notified  by  the  sheriff 
or  tax  collector  that  the  taxes  assessed  against  such  corporation  are 
delinquent,  shall  fail  or  refuse  to  pay  over  to  the  sheriff  or  tax  col- 
lector all  moneys  in  his  hands,  or  which  may  afterwards  come  into 
his  hands,  belonging  to  such  corporation,  not  exceeding  the  amount 


3786  CEIMES— ZZZ77.  Revenue.  Ch.  81 

of  the  taxes  dne,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  not 
less  than  fifty  nor  more  than  five  himdred  dollars. 
1901,  c.  558,  s.  29. 

3787.  License  tax,  failure  to  pay.  If  any  person  liable  for  any 
license  tax  fail  or  refuse  to  pay  such  tax  when  demanded  by  the 
sheriff,  he  shall  be  guilty  of  a  misdemeanor,  and  punished  by  fine 
or  imprisonment,  at  the  discretion  of  the  court. 

1903,  c.  247,  s.  87. 

3788.  Officer  failing  to  surrender  tax  list.  If  any  sheriff  or  tax 

collector  shall  refuse  or  fail  to  surrender  his  tax  list  for  inspection 
or  correction  upon  demand  by  the  authorities  imposing  the  tax,  or 
their  successors  in  ofiice,  he  shall  be  guilty  of  a  misdemeanor,  and 
imprisoned  not  more  than  five  years,  and  fined  not  exceeding  one 
thousand  dollars,  at  the  discretion  of  the  court. 
Code,  s.  3823;  1870-1,  c.  177,  s.  2. 

3789.  Peddling  without  license.  If  any  person  shall  unlawfully 
hawk  or  peddle  any  goods,  wares  or  merchandise,  or  shall  fail,  upon 
the  application  of  the  sheriff"  or  his  deputy,  or  any  justice  of  the 
peace,  to  show  his  license  as  required  by  law,  he  shall  be  guilty  of  a 
misdemeanor,  and  fined  not  exceeding  fifty  dollars,  or  imprisoned 
not  exceeding  thirty  days. 

Code,  s.  1091;  1889,  c.  504;  R.  C,  c.  34,  s.  44;  1835,  c.  17,  s.  3. 

3790.  Sheriff  failing  to  attend  tax  sale;  selling  property  not 

liable,  if  any  sheriff  shall  fail  to  attend  any  sale  of  lands  as  re- 
quired by  law  in  regard  to  tax  sales,  either  in  person  or  by  compe- 
tent deputy,  he  shall  be  guilty  of  a  misdemeanor  and  liable  to  a 
penalty  of  three  hundred  dollars,  to  be  recovered  by  an  action  in 
the  superior  court  against  the  sheriff  and  his  bondsmen.  And  if 
such  ofiicer  or  deputy  shall  sell  or  assist  in  selling  any  real  property, 
knowing  the  same  not  to  be  subject  to  taxation,  or  that  the  taxes  for 
which  the  same  is  sold  have  been  paid,  or  shall  knowingly  and  will- 
ingly sell  or  assist  in  selling  any  real  property  for  payment  of  taxes 
to  defraud  the  owner  of  such  real  property,  or  shall  knowingly  or 
willingly  execute  a  deed  for  property  so  sold,  he  shall  be  guilty  of 
a  misdemeanor,  and  be  liable  to  a  fine  of  not  less  than  one  thousand 
nor  more  than  three  thousand  dollars,  or  to  imprisonment  not  exceed- 
ing one  year,  or  to  both  fine  and  imprisonment,  and  to  pay  to  the 
injured  party  all  damages  STistained  by  such  wrongful  act.  and  all 
such  sales  shall  be  void. 
1901,  c.  558,  9.  6. 


1107 


;3701  (^RIMP:S— ZZZF/.  Revenue.  Ch.  81 

3791.  Stevedores  to  obtain  license.  If  any  person  shall  cngagv 

in  tlie  business  of  luadiiig  ov  unloading  vessels  upon  contract,  or  if 
any  person  shall  solicit  or  make  any  contract  for  himself  or  for  any 
other  person  to  load  or  unload  any  vessel,  either  by  day's  work  or 
by  the  job  for  the  owners,  master,  consignee  or  shipper,  or  do  or 
perform  any  other  of  the  work  usually  performed  by  contracting 
or  boss  stevedores,  without  having  previously  obtained  license  from 
the  sheriff  in  the  manner  provided  by  law,  he  shall  be  guilty  of  a 
misdemeanor  and  shall  be  fined  or  imprisoned,  or  both,  at  the  dis- 
cretion of  the  court. 

1891,  c.  450,  s.  1 ;  1899.  c.  59.5. 

3792.  Tax  commissioners  may  examine  books.  If  any  corpora- 
tion, firm  or  individual  shall,  upon  demand,  refuse  to  permit  the 
state  tax  commissioners,  or  any  one  of  them,  to  examine  the  books, 
papers  and  accounts  of  such  corporation,  firm  or  individual,  for 
the  purpose  of  obtaining  information  as  to  property  liable  to  be 
assessed  for  taxation,  under  any  of  the  laws  of  this  state ;  or  if  any 
person  shall  refuse  to  appear  before  the  state  tax  commissioners, 
or  any  member  thereof,  when  subpoenaed  so  to  do,  or  shall  upon  such 
appearance  fail  or  refuse  to  testify,  he  shall  be  guilty  of  a  misde- 
meanor, and  fined  not  exceeding  one  thousand  dollars,  or  imprisoned 
in  the  state's  prison  not  exceeding  two  years,  or  both,  in  the  discre- 
tion of  the  court. 

1901,  c.  7,  s.  4;  190.3,  c.  251,  s.  4. 

XXXVII.      Safety. 

3793.  Automobiles,  ordinances  regulating.  If  any  person  shall 

violate  an  ordinance  prescribed  by  tlie  board  of  commissioners  of  a 
county  regulating  the  speed  of  automobiles,  motor-cycles  and  other 
like  vehicles,  or  governing  the  use  of  the  same,  he  shall  be  guilty  of 
a  misdemeanor,  and  be  fined  not  exceeding  fifty  dollars  or  im])risoned 
not  exceeding  thirty  days.  This  section  shall  not  ai)]ily  to  Mecklen- 
burg or  Xcw  Hanover  counties. 

1905,  c.  331. 

3794.  Dynamite  cartridges,  exploding,   if  any  jierson  shall  fire 

oft',  explode,  or  cause  to  be  fired  oft'  or  exploded,  except  for  mechani- 
cal purposes  in  a  legitimate  business,  any  dynamite  cartridge,  bomb, 
or  other  explosive  of  a  like  nature,  he  shall  be  guilty  of  a  misde- 
meanor. 

1S87,  e.  304,  s.  .3. 

3795.  Exposing  children  to  fire,  if  any  person  shall  leave  any 
child,  of  the  age  of  seven  years  or  less,  locked  or  otherwise  confined 


3795  CEIMES— XZZl'7/.  Safety.  Ch.   81 

in  any  dwelling,  building  or  enclosure,  and  go  away  from  said  dwell- 
ing, building  or  enclosure,  withoiit  leaving  some  person  or  persons 
of  the  age  of  discretion  in  cliarge  of  the  same,  and  so  as  to  expose  said 
child  or  children  to  danger  by  fire,  such  person  so  offending  shall 
be  guilty  of  a  misdemeanor,  and  shall  be  juinished  at  the  discretion 
of  the  court. 
1893.  c.  12. 

3796.  Marl  beds,  failure  to  enclose.  If  any  person  shall  open 
any  marl  bed  without  surrounding  it  with  a  lawful  fence,  he  shall 
be  guilty  of  a  misdemeanor,  and  ujion  conviction  shall  be  fined  not 
exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty  days :  Pro- 
vided, this  shall  not  apply  to  any  person  whose  marl  bed  is  enclosed 
inside  his  own  enclosure. 

1887,  ec.  2.35,  268. 

3797.  Mines,  if  any  person  shall  knowingly  violate  any  of  the 
provisions  of  the  law  relating  to  mines  or  shall  do  anything  whereby 
the  life  or  health  of  persons  or  the  security  of  any  mine  and  machin- 
ery is  endangered,  or  if  any  miner  or  other  person  employed  in  any 
mine  governed  by  the  statutes  shall  intentionally  or  wilfully  neglect 
or  refuse  to  securely  prop  the  roof  of  any  working  place  under  his 
control,  or  neglect  or  refuse  to  obey  any  orders  given  by  the  superin- 
tendent of  a  mine  in  relation  to  the  security  of  a  mine  in  the  part 
thereof  where  he  is  at  work  and  for  fifteen  feet  back  of  his  working 
place,  or  if  any  miner,  workman  or  other  person  shall  knowingly 
injure  any  water-gauge,  barometer,  air  course  or  brattice,  or  shall 
obstruct  or  throw  open  any  air  ways,  or  shall  handle  or  disturb 
any  part  of  the  machinery  of  the  hoisting  engine  or  signaling  appa- 
ratus or  wire  connected  therewith,  (jr  air  pipes  or  fittings,  or  open 
a  door  of  the  mine,  and  not  have  the  same  closed  again,  whereby 
danger  is  produced  either  to  the  mine  or  those  that  work  therein,  or 
shall  enter  any  part  of  the  mine  against  caution,  or  shall  disobey 
any  order  given  in  pursuance  of  law,  or  shall  do  any  wilful  act 
whereby  the  lives  and  health  of  the  persons  working  in  the  mines 
or  the  security  of  the  mine  or  the  nmchinery  thereof  is  endangered, 
or  if  the  person  having  charge  of  a  mine  whenever  loss  of  life  occurs 
by  accident  connected  with  the  machinery  of  such  mine  or  by 
explosion  shall  neglect  or  refuse  to  give  notice  thereof  forthwith 
by  mail  or  otherwise  to  the  inspector  and  to  the  coroner  of  the  county 
in  which  such  mine  is  situated,  or  if  any  such  coroner  shall  neglect 
or  refuse  to  hold  an  inquest  upon  the  body  of  the  person  whose  death 
has  been  thiis  caused,  and  return  a  copy  of  his  findings  and  a  copy 
of  all  the  testimony  to  the  inspector,  he  shall  be  guilty  of  a  misde- 


3797  CRIMES— ZZA'T^//.  Safety.  Ch.  si 

meanor,  and  upon  conviction  fined  not  less  than  fifty  dollars  or  im- 
prisoned in  the  county  jail  not  more  than  thirty  days,  or  both. 
1897,  c.  251,  s.  8. 

3798.  Owner  of  building  failing  to  comply  with  law.  If  the  owner 

or  builder  erecting  any  new  building,  upon  notice  from  the  local 
inspector,  shall  fail  or  refuse  to  comply  with  the  terms  of  the  notice 
by  correcting  the  defects  pointed  out  in  such  notice,  so  as  to  make 
such  building  comply  with  the  law  as  regards  new  buildings,  he  shall 
be  guilty  of  a  misdemeanor,  and  shall  be  fined  not  exceeding  fifty 
dollars.  Every  week  during  which  any  defect  in  the  building  is 
wilfully  allowed  to  remain  after  notice  from  the  inspector  shall  con- 
stitute a  separate  and  distinct  offense.  This  section  shall  not  apply 
to  any  to\\n  which  may  be  exempt  from  the  law  regarding  the  inspec- 
tion of  buildings. 
1905,  c.  506,  s.  28. 

3799.  Removing  notice  from  condemned  buildings.  If  any  per- 
son shall  remove  any  notice  which  has  been  affixed  to  any  building 
by  the  local  inspector  of  any  city  or  town,  which  notice  shall  state  the 
dangerous  character  of  the  building,  be  shall  be  guilty  of  a  misde- 
meanor, and  be  fined  not  less  than  ten  nor  more  than  fifty  dollars  for 
each  offense. 

1905,  c.  506,  s.  15. 

3800.  Street  cars  to  have  vestibule  fronts.  If  any  city  and 

street  passenger  railway  (•<ini])aiiy  shall  refuse  nr  fail  to  tisc  vestibule 
fronts,  or  frontage  not  less  than  four  feet,  on  all  passenger  cars  run. 
manipulated  or  transported  by  them  on  their  lines  during  the  latter 
half  of  the  month  of  November  and  during  the  months  of  December, 
January,  February  and  jMarch  of  each  year,  except  in  cases  of  tempo- 
rary emergency  in  suitable  weather,  not  to  exceed  four  days  in  any  one 
month  within  the  period  licrein  prescribed  for  use  of  vestibule  fronts, 
such  company  shall  be  guilty  of  a  misdemeanor  and  shall  be  sub- 
ject to  a  fine  of  not  less  than  ten  dollars  or  more  than  one  hundred 
dollars  for  each  day:  Provided,  that  said  companies  shall  not  be 
required  to  close  the  sides  of  said  vestibules.  The  North  Carolina 
corporation  commission  is  hereby  authorized  to  make  exemptions 
from  the  provisions  of  this  section  in  such  cases  as  in  their  judg- 
ment the  enforcement  of  this  section  is  unnecessary. 
1901,  c.  74.3,  s.  1. 

3801.  Street  cars  to  have  fenders.  If  any  city  and  street  pas- 
senger railway  C(im]iiiuy  shall  refuse  nr  f;iil  to  use  practical  feudcrs 
in  front  of  all  passenger  cars  run,  manipulated  or  transported  by 
them,  such  company  shall  be  guilty  of  a  misdemeanor  and  shall  be 


3801  CHIMES— XXXVII.  Safety.  Ch.  81 

subject  to  a  fine  of  not  less  than  ten  dollars  or  more  than  one  hun- 
dred dollars  for  each  day.  The  North  Carolina  corporation  com- 
mission is  hereby  authorized  to  make  exemptions  from  the  provis- 
ions of  this  section  in  such  cases  as  in  their  judgment  the  enforce- 
ment of  this  section  is  unnecessary. 
1901,  e.  74.3,  s.  2. 

3802.  Unsafe  buildings  allowed  to  stand.  If  the  owner  of  any 

building  which  has  been  condemned  as  imsafe  and  dangerous  by  any 
local  inspector,  after  being  notified  by  the  inspector  in  writing  of 
the  unsafe  and  dangerous  character  of  such  building,  shall  permit  the 
same  to  stand  or  continue  in  that  condition,  he  shall  forfeit  and  pay  a 
fine  of  not  less  than  ten  nor  more  than  fifty  dollars  for  each  day  such 
building  continues  after  such  notice.  This  section  shall  not  apply  to 
towns  and  cities  exempt  from  the  law  governing  the  inspection  of 
buildings. 

1905,  c.  506,  s.  15. 

XXXVIII.     Sales. 

3803.  Butchers  to  keep  record.   If  any  butcher  shall  fail  to  keep 

a  book  of  registrati(.iii  and  register  tlie  ear-mark,  brand  or  flesh-mark 
of  all  cattle,  sliecp,  swine  or  goats,  and  the  name  of  the  parties  pur- 
chased from  in  said  registration,  and  the  date  of  said  purchase, 
which  registration  shall  be  open  to  the  inspection  of  all  persons,  be 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  pay  a 
fine  of  fifty  dollars  for  each  offense:  Provided,  this  shall  only  ap- 
ply to  the  counties  of  Rockingham,  Bertie,  Edgecombe,  Halifax, 
Martin,  Orange,  Pitt,  Wilson,  Wayne,  Jones,  Warren,  Johnston, 
Richmond,  N^orthampton,  Franklin,  Craven  and  Chowan ;  and  War- 
saw township  in  Duplin  county. 

1889,  c.  318;  1895,  c.  303;  1891.  o.  .38;  1891,  c.  557;  1893.  c.  116;  1903,  e.  82; 
1905,  c,  31. 

3804.  Cigarettes  to  minors.  If  any  person  shall  sell,  give  away 
or  otherwise  dispose  of,  directly  or  indirectly,  cigarettes,  or  tobacco 
in  the  form  of  cigarettes,  or  cut  tobacco  in  any  form  or  shape  which 
may  be  used  or  intended  to  be  used  as  a  substitute  for  cigarettes, 
to  any  minor  under  the  age  of  seventeen  years;  or  if  any  person 
shall  aid,  assist  or  abet  any  person  in  selling  such  articles  to  such 
minor,  he  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
shall  be  punished  by  fine  or  imprisonment  in  the  discretion  of  the 
court. 

1891,  c.  276. 

3805.  Cigarettes  to  minors,  aiding.   If  any  person  shall  aid 

or  assist  any  minor  child  under  seventeen  years  of  age  in  obtain- 

1111 


3805  CRIMES— XXXT///.  Sales.  Cli.  81 

ing  the  possession  of  cigarettes,  or  tobacco  in  any  form  used  as  a 
substitute  therefor,  by  whatsoever  name  it  may  be  called,  he  shall 
be  guilty  of  a  misdemeanor  and  ujion  conviction  sliall  be  tined  or 
imprisoned  in  the  discretion  of  the  court. 

ISni,  c.  270,  s.  2. 

3806.  Cocaine,  opium,  morphine.  If  any  person  shall  sell  by  re- 
fail  nr  give  away  any  preparation  containing  more  than  thirty  per 
cent,  of  Cdcaine,  nidqihiue  (ir  opinm,  (■.\co])t  iijiou  tlic  written  ])re- 
scriptiou  of  a  reputable  practicing  physician,  veterinary  surgeon  or 
dentist  licensed  under  the  laws  of  the  state,  which  said  prescription 
shall  not  be  refilled  unless  so  directed  by  the  attending  physician, 
except  in  cases  of  emergency  and  in  the  absence  of  a  physician,  he 
shall  be  guilty  of  a  misdemeanor,  and  shall  be  imprisoned  not  exceed- 
ing thirty  days,  or  fined  not  exceeding  fifty  dollars.  No  veterinary 
surgeon  shall  be  allowed  to  prescribe  for  a  Iniman  being  or  to  sell, 
give  away,  or  in  any  manner  dispose  of  the  drugs  mentioned  in  this 
section  except  for  the  use  of  dumb  animals.  The  provisions  of  this 
section  shall  not  apply  to  sales  at  wholesale  by  any  manufacturer  or 
wholesale  dealer  who  shall  sell  to  retail  druggists  in  original  ])ack- 
ages  only. 

ino5,  c.  85. 

3807.  Concentrated  feeding  stuff,  taxes  not  paid,  if  any  manu- 
facturer, importer,  jobber,  agent  or  seller  shall  sell,  offer  or  ex- 
pose for  sale,  or  for  distribution  in  this  state,  any  concentrated 
commercial  feeding  stuff  as  defined  by  law  without  complying  with 
the  requirements  of  the  law  as  to  branding  the  same,  and  as  to 
filing  samples  with  the  commissioner  of  agriculture,  or  tagging  the 
same,  and  paying  the  tax  thereon,  or  in  any  other  way  shall,  sell  or 
offer  or  exjiose  for  sale  or  distribution  any  concentrated  conunercial 
feeding  stuff  which  contains  substantially  a  smaller  ]iercentage  of 
constituents  than  are  certified  to  be  (•(lulaiued,  or  who  shall  adulterate 
any  feeding  stuff  with  foreign,  mineral,  or  other  substance  or 
substances,  or  with  substances  inj\irious  to  tiie  health  of  domestic 
animals,  he  shall  be  guilty  of  a  misdemeanor,  and  shall  be  fined  not 
exceeding  fifty  dollars  tor  each  offense,  or  ini])risone<l  not  exceeding 
thirty  days,  and  the  lot  of  feeding  stuff  in  tpiestion  shall,  in  addition, 
be  subject  to  seizure,  cf)ndemnarion  and  sale  by  the  commissioner 
of  agriculture,  as  ])rescribed  for  tlie  sciznri',  condemnation  and  sale 
of  commercial  fertilizers  in  this  state.  The  jiroceeds  from  sales  under 
seizure  shall  i)e  covered  into  the  state  treasury  for  the  use  of  the 
de])artment  of  agriculture  in  executing  the  ])rovisions  of  this  section. 

i!»n;!.  <:  :t2.->.  s.  fi. 


3808  CRIMES— A'A'X  17//.  Sales.  Cb.  81 

3808.  Commercial  feeding  stuffs.  If  any  person  shall  violate 
any  regulation  adopted  by  tbe  board  of  agriculture  for  the  enforce- 
ment of  tbe  law  in  reference  to  sale  of  concentrated  commercial  feed- 
ing stuffs,  be  sball  be  guilty  of  a  misdemeanor. 

1903,  c.  32.5,  s.  5. 

3809.'  Corn,  in  certain  counties,  if  any  person  sball  buy,  sell, 
deliver,  or  receive  for  a  price  or  for  any  reward  whatever,  any 
corn  in  the  ear  or  shelled  of  a  less  amount  than  five  bushels,  between 
tbe  hours  of  sunset  and  sunrise,  be  sball  be  guilty  of  a  misdemeanor, 
and  upon  conviction  be  punished  by  a  fine  not  exceeding  fifty  dollars 
or  imprisoned  not  exceeding  thirty  days.  In  all  prosecutions  under 
this  section  it  sball  only  be  necessary  for  the  state  to  allege  and 
prove  that  tbe  defendant  bought  or  received  the  corn  as  charged,  and 
the  burden  sball  be  upon  tbe  defendant  to  show  that  tbe  provisions 
of  this  section  have  been  complied  with:  Provided,  this  section  shall 
only  apply  to  the  counties  of  Beaufort,  Hyde,  Martin,  Tyrrell, 
Washington,  Pamlico,  Halifax  and  Edgecombe. 

1889,  c.  90;    1891.  c.  0;    1891.  c,  8. 

3810.  Corn  meal.  If  any  person  shall  pack  for,  sale,  sell  or  offer 
for  sale  in  this  state  any  corn  meal  except  in  bags  oi-  ])ackages  con- 
taining by  standard  weight  two  bushels  or  one  bushel  or  one-half 
bushel  or  one-fourth  bushel  or  one-eighth  bushel  respectively,  each 
bag  or  package  of  corn  meal  shall  have  plainly  printed  or  marked 
thereon  whether  tbe  meal  is  "bolted''  or  "unbolted,"  tbe  amount  it 
contains  in  bushels  or  fraction  of  a  bushel,  and  the  weight,  be  shall 
be  guilty  of  a  misdemeanor  and  fined  not  exceeding  fifty  dollars,  or 
imprisoned  not  exceeding  thirty  days :  Provided,  the  provisions  of 
this  section  shall  not  apply  to  the  retailing  of  meal  direct  to  cus- 
tomers from  bulk  stock  when  priced  and  delivered  by  actual  weight 
or  measure. 

1905,  c.  126,  .«s.  2,  3. 

3811.  Cotton;  inspection  and  sale  of,  in  certain  counties,    if 

any  buyer  of  baled  cotton  shall  fail  to  inspect  all  baled  cotton  when 
purchased  and  before  the  same  is  delivered,  or  shall  make  any  deduc- 
tion from  the  price  agreed  to  be  paid  therefor  on  account  of  any  in- 
spection made  after  delivery  of  tbe  same,  be  sball  be  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof  shall  be  fined  not  more  than 
fifty  dollars  or  imprisoned  not  exceeding  thirty  days.  This  .section 
sball  apply  only  to  the  counties  of  Stanly,  Cabarrus,  Montgomery, 
.Vnson,  Catawba,  Ilichniond  and  Rowan:  Provided,  this  section  shall 
not  have  the  effect  to  prevent  a  deduction  or  rebate  on  the  ]irico 
agTeed  for  fra\idulent  l)nling  nr  ]incking  of  cotton  or  to  prevent  an 


3811  CRIMES— ZXA' 17/7.  Sales.  Ch.  81 

indictment  for  false  pretenses  in  the  counties  of  Montgomery,  Rowan 
and  Stanly. 

1891,  c.  287;    1899,  c.  3-20. 

3812.  Cotton  in  seed,  and  peanuts;  sale  of.  if  any  person  shall 

buy,  sell,  deliver  or  receive  for  a  jirice,  or  for  any  reward  whatever, 
any  cotton  in  the  seed  where  the  quantity  is  less  than  what  is  usually 
baled,  or  any  peanuts,  and  shall  fail  to  enter  ujion  a  book  to  be  kept  by 
him  for  such  purpose  the  date  of  such  buying  or  receiving,  the  num- 
ber of  pounds  in  each  lot,  the  person  or  persons  from  whom  bought 
or  received,  the  name  of  the  owner  of  the  land  on  which  such  cotton 
is  raised,  and  the  price  paid  for  the  same  per  pound,  which  book  shall 
be  open  to  inspection  by  the  public  at  all  business  hoiirs  of  the  day,  he 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  be  punished  by 
a  fine  not  exceeding  fifty  dollars  or  imprisoned  not  exceeding  thirty 
days.  In  all  prosecutions  under  this  section  it  shall  only  be  neces- 
sary for  the  state  to  allege  and  prove  that  the  defendant  bought  or 
received  the  seed  cotton  or  peanuts  as  chai-ged,  and  the  burden  shall 
be  upon  the  defendant  to  show  that  the  provisions  of  this  section  have 
been  complied  with. 

1887,  e.  199;  1905,  cc.  201,  523. 

3813.  Cotton;  sale  of,  at  night.  If  any  person  shall  buy,  sell, 
deliver  or  receive,  for  a  price,  or  for  any  reward  whatever,  any  cot- 
ton in  the  seed,  or  any  unpacked  lint  cotton,  brought  or  carried  in 
a  basket,  hamper  or  sheet,  or  in  any  mode  where  the  quantity  is  less 
than  what  is  usually  baled,  or  where  the  cotton  is  not  baled,  between 
the  hours  of  sunset  and  sunrise,  such  person  so  offending  shall  be 
guilty  of  a  misdemeanor.  On  conviction,  in  Mecklenburg  and  iSTash 
counties,  the  offender  shall  be  imprisoned  not  less  than  three  mouths 
nor  more  than  twelve  months,  and  shall  also  be  liable  to  a  penalty  of 
two  hundred  dollars,  one-half  of  which  shall  go  to  the  party  suing 
for  same  and  one-half  to  the  public  schools  of  the  county. 

Code,  s.  lOOG:   1873-4,  c.  62;   1874-5,  c.  70;   1905,  c.  417. 

3814.  Cotton-seed  meal;  sale  of,  not  having  been  inspected.  If 

any  person  shall  sell  or  otter  for  sale  any  cottoii-soed  meal,  which 
has  not  been  inspected  and  branded  as  required  by  law,  (U*  shall  sell 
any  cotton-seed  meal  containing  a  less  quantity  of  annnonia  than 
is  authorized  by  law,  or  shall  violate  any  regulation  or  rule  made  by 
the  state  board  of  agricultiire  regulating  the  sale,  iiispection,  brand- 
ing or  tagging  of  cotton-seed  meal,  lie  shall  be  guilty  of  a  misde- 
meanor. 

1903,  c.  339,  ss.  3-5;   1905,  c.  207,  s.  0. 


3815  CRIMES— ZXZF7//.  Sales.  Ch.  81 

3815.  Cotton  weigher  failing  to  file  oath.  Every  public  weigher 

of  cotton  shall,  before  entering  on  the  duties  of  his  otfice,  make  and 
subscribe  the  oath  prescribed  for  cotton  weighers,  which,  when  made, 
shall  be  filed  in  the  office  of  the  register  of  deeds  for  the  county  in 
which  the  person  acts  as  weigher,  and  said  register  shall  make  a 
note  of  the  same,  aild  any  person  acting  as  weigher  without  mak- 
ing and  filing  the  oath,  shall  be  guilty  of  a  misdemeanor,  and  shall 
be  fined  twenty-five  dollars  for  every  bag,  bale,  or  package  of  cotton 
which  he  shall  have  unlawfully  weighed  before  being  qualified  to 
do  so. 

Code,   s.   1008;    1874-5,  c.   58,   s.   2. 

3816.  Cotton,  weighing  of.  If  any  weigher  or  purchaser  of  cot- 
ton shall  make  any  deduction  from  the  weight  of  any  bag,  bale  or 
package  of  lint  cotton,  for  or  on  account  of  the  draft,  turn  or  break 
of  the  scales,  steelyards,  or  other  implement  used  in  weigliing  the 
same,  or  for  any  other  cause  except  as  herein  allowed,  the  person  so 
offending  shall  be  gviilty  of  a  misdemeanor,  and  fined  three  hundred 
dollars  or  imprisoned,  in  the  discretion  of  the  court:  Provided,  that 
the  weigher  may  make  such  proper  deduction  as  shall  be  agreed  on 
by  him,  and  the  seller,  or  his  agent,  for  water,  dirt  or  other  foreign 
substance,  in  or  on  such  bag,  bale,  or  package  of  cotton,  or  for  other 
just  cause. 

Code,  s.  1007;   1874-5,  c.  58,  ss.  1.  3. 

3817.  Dynamite;  selling,  without  a  license.   If  any  dealer  or 

other  person  shall  sell,  or  keep  for  sale  any  dynamite  cartridges, 
bombs,  or  other  combustibles  of  a  like  kind,  without  first  having 
obtained  from  the  board  of  comrnissioners  of  the  county  where  such 
person  or  dealer  resides  a  license  for  that  purpose,  he  shall  be  giiilty 
of  a  misdemeanor. 
1887,  c.  364,  ss.  1,  4. 

3818.  Fertilizers  containing  matter  not  available  as  plant  food. 

If  any  person  shall  wilfully  sell  or  offer  for  sale  any  fertilizer 
or  fertilizer  material  which  contains  hair,  hoof-meal,  horn,  leather 
scraps  or  other  deleterious  substances  not  available  as  food  for 
plants,  but  in  which  said  forbidden  materials  aid  in  making  up  the 
required  or  guaranteed  analysis,  he  shall  be  guilty  of  a  misde- 
meanor. 

1901,  e.  470,  s.  9. 

3819.  Fertilizers;  officers  and  agents  of  transportation  com- 
panies to  furnish  information.  If  any  ofllcer.  agent,  or  manager 
of  any  railroad,  steamboat  or  other  transportation  company  tran.s- 
porting  fertilizers  or  fertilizing  material  into  this  state  shall,  when 


381!)  CKT:\[ES— XAM'F///.  Sales.  Ch.  M 

required  by  the  dciiartiueut  nf  agriculture  so  to  do,  fail  or  refuse  to 
furnish  monthly  statements  of  the  quantity  of  such  fertilizers  with 
the  names  of  the  consignor  and  consignee  and  the  name  of  the  brand 
delivered  on  their  respective  lines  at  all  jioints  within  this  state,  or 
shall  fail  or  refuse  to  submit  the  books  of  such  transportation  com- 
pany for  examination,  he  shall  be  gaiilty  of  a  misdemeanor. 

1901.  c.  479,  s.   10. 

3820.  Fertilizers;  removal  or  sale  of,  after  condemned.  If  any 

fertilizer  shall  be  condemned,  as  by  law  provided,  it  shall  be  the 
duty  of  the  agricultural  department  to  have  an  analysis  made  of 
the  same  and  cause  printed  tags  or  labels  expressing  the  true  chemi- 
cal ingredients  of  the  same  to  be  put  upon  each  bag,  barrel  or  pack- 
age, and  shall  fix  the  commercial  value  thereof  at  which  it  may  be 
sold,  and  any  person  who  shall  sell,  offer  for  sale  or  remove  any  such 
fertilizer,  or  any  agent  of  any  railroad  or  other  transportation  com- 
pany who  shall  deliver  any  such  fertilizer  in  violation  of  this  sec- 
tion shall  be  guilty  of  a  misdemeanor. 

1901,   c.  479,  s.   8. 

3821.  Fertilizers;  violation  of  regulations.  If  any  person  shall 

wilfully  violate  any  regulation  made  by  the  commissioner  and  board 
of  agTiculture  concerning  the  sale  of  commercial  fei'tilizcrs,  seeds, 
and  food  ])roducts,  be  shall  be  guilty  of  a  misdemeanor. 
1901,  c.  479,  s.  4,  sHbsec.  9. 

3822.  Fertilizers,  without  tags,  if  any  person  shall  sell  or  offer 
for  sale  any  fertilizer  or  fertilizing  material  not  having  attached 
thereto  the  tags  and  labels  required  by  law,  he  shall  be  guilty  of  a 
misdemeanor. 

1901,  c.  479,  s.  5. 

3823.  Future  delivery  contracts.  If  any  person  shall  become 
a  party  to  any  contract  for  the  sale  and  future  delivery  of  any  article 
of  personal  property  in  which  it  is  not  intended  by  the  parties 
thereto  that  such  property  shall  be  actually  delivered,  but  the  differ- 
ence between  the  contract  price  and  the  market  price  on  the  day  of 
delivery  shall  be  paid  in  money,  or  if  any  pei'son  shall  be  the  agent, 
directly  or  indirectly,  of  any  such  party  in  making  or  furthering 
or  effectuating  the  same;  or  if  any  agent  or  officer  of  any  cor])()ra- 
tion  shall,  in  any  way  or  manner,  knowingly  aid  in  making  or 
furthering  any  such  contract  to  which  such  corporation  .shall  be  a 
party,  he  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  shall 
be  fined  not  less  than  one  hundred  dollars  nor  more  than  five  liun- 
dred  dollars,  and  may  lie  imprisoned  in  the  discn-tion  of  the  court. 

1889,  e.  221,  s.  3. 


3824  CRIMES— A' A' A' ]■///.  >^ales.  Ch.   SI 

3824.  Future  delivery;  contract  made  in  another  state,    if 

any  person  shall,  wliijc  in  this  stale,  consent  to  become  a  party  to 
any  contract  contrary  to  preceding  sections,  made  in  another  state, 
or  if  any  person  shall,  as  agent  of  any  person  or  corporation  become 
a  party  to  any  snch  contract  made  in  another  state,  or  in  this  state 
do  any  act,  or  in  any  way  aid  in  the  making  or  furthering  snch  con- 
tract so  made  in  another  state,  he  shall  be  gnilty  of  a  misdemeanor, 
and  on  conviction  shall  be  fined  not  less  than  fifty  nor  more  than 
two  hundred  dollars,  and  may  be  imprisoned  in  the  discretion  of  the 
court. 

1889,  c.  221,  s.  4. 

3825.  Futures,  office  for  sales  of.  if  any  person,  corporation  or 
other  association  of  persons,  either  as  principal  or  agents,  shall  estab- 
lish or  open  an  office  or  other  place  of  business  in  this  state  for  the 
purpose  of  carrying  on  or  engaging  in  any  business  of  making  con- 
tracts to  sell  and  deliver  any  cotton,  indian  corn,  wheat,  I'ye,  oats, 
tobacco,  meal,  lard,  bacon,  salt  jjork,  salt  fish,  beef  cattle,  sugar,  cof- 
fee, stocks,  bonds,  and  choses  in  action,  at  a  place  and  at  a  time 
specified  and  agreed  upon  therein,  to  any  other  person,  whether  the 
person  to  whom  such  article  is  so  agreed  to  be  sold  and  delivered 
shall  be  a  party  to  such  contract  or  not,  when,  in  fact,  and  notwith- 
standing the  terms  expressed  of  such  contract,  it  is  not  intended  by 
the  parties  thereto  that  the  articles  or  things  so  agreed  to  be  sold 
and  delivered  shall  be  actually  delivered,  or  the  value  thereof  paid, 
but  it  is  intended  and  understood  by  them  that  money  or  other  thing 
of  value  shall  be  paid  to  the  one  party  by  the  other,  or  to  a  third 
party,  the  party  to  whom  such  paj'ment  of  money  or  other  thing  of 
value  shall  be  made  to  depend,  and  the  amount  of  such  money  or 
other  thing  of  value  so  to  be  paid  to  depend  upon  whether  the  market 
price  or  value  of  the  article  so  agreed  to  be  sold  and  delivered  is 
greater  or  less  at  the  time  and  place  so  specified  than  the  price  stipu- 
lated to  be  paid  and  received  for  the  articles  so  to  be  sold  and  deliv- 
ered ;  or  for  making  contracts  commonly  called  "futures"  as  to  the 
several  articles  and  things  hereinbefore  specified,  or  any  of  them,  by 
whatever  other  name  called,  he  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall  be  fined  and  imprisoned  at  the  discre- 
tion of  the  court. 

1880,  c.  221,  s.  1  ;  1905.  o.  538,  ss.  1,  2. 

3826.  Futures,  office  for  sales  of;  evidence.  Xo  person  shall  be 

excused  on  any  prosecution  under  the  three  next  preceding  sections 
from  testifying  touching  anything  done  by  himself  or  others  contrary 
to  the  provisions  of  such  sections,  but  no  discovery  made  by  the  wit- 
ness upon  such  examination  shall  be  used  against  him  in  any  penal 

1117 


3826  CRT]\[ES— ZZXTV/7.  Snles.  Ch.   M 

or  criminal  prosccMitioii,  and  lie  shall  be  altoji'ether  panloned  of  the 
offense  so  done  or  participated  in  by  hini.  In  all  such  prosecutions 
proof  that  the  defendant  was  a  party  to  a  contract  as  agent  or  princi- 
pal to  sell  and  deliver  any  article,  thing  or  property  specified  or 
named  in  such  sections,  or  that  he  was  the  agent,  directly  or  indi- 
rectly, of  any  party  in  making,  furthering  or  effectuating  the  same, 
or  that  he  was  the  agent  or  officer  of  any  corporation  or  association 
or  person  in  making,  furthering  or  effectuating  the  same,  and  that 
the  article,  thing  or  property  agreed  to  be  sold  and  delivered  was  not 
actually  delivered,  and  that  settlement  was  made  or  agreed  to  be 
made  upon  the  difference  in  value  of  said  article,  thing  or  property 
shall  constitute  against  such  defendant  prima  facie  evidence  of  guilt. 
Proof  that  any  person,  corporation  or  other  association  of  persons, 
either  as  principals  or  agents,  has  established  an  office  or  place  where 
are  posted  or  published  from  information  received  the  fluctuating 
prices  of  grain,  cotton,  provisions,  stocks,  bonds  and  other  commodi- 
ties, or  of  any  one  or  more  of  the  same,  shall  constitute  prima  facie 
evidence  of  being  guilty  of  violating  the  three  preceding  sections. 
1905,  c.  538,  ss.  3,  4,  6. 

3827.  Obstructing  inspector  of  concentrated  feeding  stuff  in 

duties.  If  any  person  shall  impede,  obstruct,  hinder  or  otherwise 
prevent  or  attempt  to  prevent  any  inspector  or  other  person  in  the 
performance  of  his  duty  in  collecting  samples,  or  otherwise  in  con- 
nection with  the  inspection  or  sale  of  concentrated  feed  stuffs,  he 
shall  be  guilty  of  a  misdemeanor,  and  be  fined  not  more  than  fifty 
dollars  or  imprisoned  not  more  than  thirty  days. 
1903.  e.  325,  s.  8. 

3828.  Oleomargarine  sold  without  label.   If  any  person  shall 

sell,  keep  for  sale,  or  oft'er  for  sale  any  oleomargarine  or  buttcrine, 
without  having  securely  affixed  on  each  package,  tub  or  firkin 
thereof,  a  label  on  which  shall  be  printed  in  large  roman  type  the 
chemical  ingredients  and  the  proportions  thereof,  he  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  be  fined  not  less  than 
fifty  dollars,  or  be  imprisoned  not  exceeding  thirty  days;  and  for 
each  subsequent  offense  be  fined  not  less  than  two  hundred  dollars 
or  imprisoned  not  less  than  six  months,  or  both,  in  the  discretion 
of  the  court.  For  the  purposes  of  this  section  any  article  manufac- 
tured or  compounded  in  imitation  or  semblance  of  butter,  or  wliich 
shall  be  composed  of  any  ingredient  in  combination  witli  butter, 
shall  be  deemed  to  be  oleomargarine  and  buttcrine. 
1896,  c.   106. 

3829.  Poisons;  sale  regulated.    If  any  person  shall  retail  any 
poison  ciuimerated   in  schedules   A  and  B  of  this  section,   without 


.'5829  ORniES— XXXVIII.  Sales.  Ch.   81 

distinctly  labelling  the  bottle,  box,  vessel  or  paper  in  which  said 
poison  is  contained,  with  the  name  of  the  article,  the  word  "poison," 
a  vignette  representing  a  skull  and  bones,  and  the  name  and  place 
of  business  of  the  seller;  or  if  any  person  shall  sell  or  deliver  any 
poison  ennmerated  in  said  schednles  A  and  B,  unless  upon  due 
inquiry  it  be  found  that  the  purchaser  is  aware  of  its  poisonous  na- 
ture, and  represents  that  it  is  to  be  used  for  a  legitimate  purpose; 
or  if  any  person  shall  sell  any  poison  included  in  schedule  A  without, 
before  delivering  the  same  to  the  purchaser,  causing  an  entry  to  be 
made  in  a  book  kept  for  that  purpose,  stating  the  date  of  tbe  sale, 
the  name  and  address  of  the  purchaser,  the  name  and  quantity  of 
the  poison  sold,  the  purpose  for  which  it  is  represented  by  the  pur- 
chaser to  be  required,  and  the  name  of  the  dispenser,  such  book  to 
be  always  open  to  proper  authorities  for  inspection,  he  shall  be  gTiilty 
of  a  misdemeanor  and  be  liable  for  all  damages  arising  from  such 
sale. 

SCHEDULE    A. 

Arsenic  and  its  preparations,  corrosive  sublimate,  white  precipi- 
tate, red  precipitate,  biniodide  of  mercury,  cyanide  of  potassium, 
hydrocyanic  acid,  strychnine,  and  essential  oil  of  bitter  almonds. 

SCHEDULE     B. 

Aconite,  belladonna,  colcbicum,  conium,  nux  vomica,  henbane, 
savin,  ergot,  cotton  root,  cantharides,  creosote,  digitalis,  and  their 
pharmaceutical  preparations,  croton  oil,  chloroform,  chloral  hydrate, 
sulphate  of  zinc,  carbolic  acid,  oxalic  acid,  opium  and  its  prepara- 
tions, except  paregoric  and  other  preparations  of  opium  containing 
less  than  two  grains  to  the  ounce,  and  other  deadly  poisons.  This 
section  shall  not  apply  to  the  dispensing  of  poison  in  usual  doses 
and  by  physicians'  prescriptions,  nor  to  the  sale  of  poisons  by  phy- 
sicians in  their  actual  practice,  upon  their  own  prescription ;  nor  to 
the  sale  of  such  poisons  by  wholesale  to  pharmacists. 

Code,  ss.  .3143,  .3144;  1881,  c.  3.5.5.  ss.  9,  10. 

3830.  Spirits  of  turpentine,  adulteration  of.    if  any  person 

shall  adulterate  or  caiise  to  be  adulterated,  any  spirits  turpentine,  or 
shall  knowingly  sell  or  offer  for  sale  as  pure  spirits  turpentine, 
any  adulterated  spirits  turpentine,  he  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  shall  be  fined  not  less  than  fifty  dol- 
lars, or  imprisoned  for  thirty  days. 
1897,  e.  482. 

3831.  Warehouse,  unlawfully  disposing  of  property  stored  in 

public.      If  any  person  unlawfully  sells,   pledges,   lends  or  in   any 


:j.s;n  CRniES— -VA'Xl'///.  Sales.  Cli.  si 

otlier  way  disposes  of  or  permits  or  is  a  party  to  the  unlawful  sell- 
ing, pledging,  lending,  or  other  disposition  of  any  goods,  wares,  mer- 
chandise, or  anything  deposited  in  a  ]^ublic  warehouse  without  tin 
authority  of  the  party  who  deposited  the  same,  he  shall  be  punished 
by  a  fine  not  to  exceed  two  thousand  dollars  and  by  imprisonment 
in  the  state's  prison  for  not  more  than  three  years,  but  no  ofhcer, 
manager  or  agent  of  such  public  warehouse  shall  be  liable  to  the 
penalties  provided  in  this  section,  unless  with  the  intent  to  injure 
or  defraud  any  person,  he  so  sells,  pledges,  lends,  or  in  any  other 
way  disposes  of  the  same,  or  is  a  party  to  the  selling,  pledging, 
lending  or  other  disposition  of  any  goods,  wares,  merchandise,  arti- 
cle or  thing  so  deposited. 
1901,  c.  678,  s.  11. 

3832.  Weapons  to  a  minor.  If  any  jierson  shall  knowingly  sell 
or  otfer  for  sale,  give  or  in  any  way  (lisjMise  of  to  a  uiiiicir  any  ])istol 
or  pistol  cartridge,  brass  knncks,  bmvie-knifc,  dirk.  In^nlcd  caue,  or 
sling-shot,  he  shall  be  guilty  of  a  misdemeanor. 

189.3,  c.  514. 

XXXIX.     Schools. 

3833.  Agents  for  sale  of  supplies  not  to  be  officers.   If  any 

member  of  any  biiard  nf  directurs,  bnard  of  managers,  board  of 
trustees  of  any  of  the  educational,  charitable,  eleemosynary  or  penal 
institutions  of  the  state,  or  any  member  of  any  board  of  education, 
or  any  county  or  district  superintendent  or  examiner  of  teachers, 
or  any  school  trustee  of  any  schofil  or  other  institution  supported 
in  whole  or  in  part  from  any  of  the  public  funds  of  the  state,  or 
any  officer,  agent,  manager,  teacher  or  employee  of  said  boards  shall 
have  any  pecuniary  interest,  either  directly  or  indirectly,  proximately 
or  remotely,  in  supplying  any  goods,  wares  or  merchandise  of  any 
nature  or  kind  whatsoever  for  any  of  said  institutions  or  schools; 
or  if  any  of  said  officers,  agents,  managers,  teachers  or  employees 
of  said  institution  or  school  or  state  or  county  officer  shall  act  as 
agent  for  any  manufacturer,  merchant,  dealer,  publisher  or  author 
for  any  article  of  merchandise  to  be  used  by  any  of  said  institu- 
tions or  schools;  or  shall  receive,  directly  or  indirectly,  any  gift, 
emolument,  reward  or  promise  of  reward  for  their  inthience  in 
recommending  or  procuring  the  use  of  any  manufactured  article, 
goods,  wares  or  merchandise  of  any  nature  or  kind  whatsoever  to 
any  of  the  said  institutions  or  schools,  ho  shall  be  forthwith  removed 
from  his  position  in  tlie  ]mblic  service,  and  shall  upon  conviction 
be  deemed  guilty  of  a  misdemeanor  and  fined  not  less  than  fifty 


;3S;3;i  CHIMES— ZXZ7Z.  ScJwols.  Ch.  81 

dollars  nor  more  than  five  liimdred  dollars  and  he  imprisoned,  in  the 
discretion  of  the  eoxirt. 

1899,  e.  732,  s.  73;   1897,  c.  543. 

3834.  Books;  selling,  at  greater  than  contract  price.   If  any 

dealer,  clerk,  or  aaent  shall  scdl  any  hook  adopted  hv  the  text-hook 
commission  for  a  greater  price  than  the  contract  ]:)rice  he  shall  he 
guilty  of   a   misdemeanor,    and   upon   conviction   shall    be   punished 
by  a  fine  not  exceeding  fifty  dollars. 
1901,  c.  1,  s.  19. 

3835.  Buying  supplies  from  interested  officer.   If  any  county 

board  of  education  or  school  connnittee  shall  buy  school  supplies  in 
Avhich  any  member  has  a  pecuniary  interest,  or  if  any  school  ofti- 
cers  or  teachers  shall  receive  any  gift,  emolument,  reward  or  prom- 
ise of  reward  for  influence  in  recommending  or  procuring  the  use 
■  of  any  school  su]jplies  for  the  schools  with  which  they  are  connected, 
such  person  shall  be  removed  from  his  position  in  the  public  service 
and  shall,  upon  conviction,  be  deemed  guilty  of  a  misdemeanor. 
1901,  c.  4,  s.  69. 

3836.  Census  returns,  false.  If  any  person  who  is  a  member 
of  the  school  committee  of  any  district,  as  such,  shall  knowingly 
and  wilfully  take  false  or  inaccurate  census,  or  make  a  false  or 
inaccurate  return  or  repoi't  to  the  county  superintendent  of  pub- 
lic instruction  of  the  number  of  children  in  his  district  between 
the  ages  of  six  and  twenty-one,  he  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof  shall  be  fined  and  impris- 
oned at  the  discretion  of  the  court. 

1889,  c.  353. 

3837.  Duty,  failure  of  officer  to  discharge.  If  any  officer  shall 

fail  to  perform  any  of  the  duties  rotpiired  of  him,  in  regard  to  the 
appropriation  or  distribution  of  tlie  fund  to  bring  the  schools  up  to 
a  four  months'  term  or  shall  knowingly  make  any  misrepresenta- 
tion of  facts  in  any  report  required  of  him  in  reference  to  such 
fund,  he  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall 
be  removed  from  his  office  and  fined  or  imprisoned,  in  the  discretion 
of  the  court. 
1903,  c.  751,  s.  8. 

3838.  Disturbing.  If  any  person  shall  wilfully  interrupt  or  dis- 
turb any  public  or  private  school  or  temperance  society  or  organi- 
zation or  any  meeting  lawfully  and  peacefully  held  for  the  purpose 
of  literary  and  scientific  improvement,  or  for  the  discussion  of  tem- 
perance or  question  of  moral  reforn:,  cither  within  or  without  the 

Rev.  Vol.  1—07  1121 


3838  CRIMES— A"XA7X.  Schools.  Ch.  61 

place  where  such  meeting  or  school  is  held,  or  injure  any  school 
building,  or  deface  any  school  furniture,  apparatus,  or  other  school 
property,  or  property  of  any  temperance  society  or  organization,  he 
shall  be  guilty  of  a  misdemeanor,  and  fined  not  exceeding  fifty  dol- 
lars or  imprisoned  not  more  than  thirty  days. 
Code,  s.  2592;   1885,  c.  140;  1901,  c.  4,  s.  28. 

3839.  Treasurer  failing  to  report.  If  any  treasurer  of  the  county 
school  fund  shall  fail  to  make  reports  required  of  him  at  the  time 
and  in  the  manner  prescribed,  or  to  perform  any  other  duties 
required  of  him  by  law,  he  shall  be  guilty  of  a  misdemeanor,  and 
be  fined  not  less  than  fifty  dollars  and  not  more  than  two  hun- 
dred dollars,  or  imprisoned  not  less  than  thirty  days,  nor  more  than 
six  months,  in  the  discretion  of  the  court. 

1901,  c.  4,  s.  53. 

3840.  Witness  failing  to  appear  and  testify.   If  any  witness 

shall  wilfully  and  without  legal  excuse  fail  to  appear  before  the 
county  board  of  education  to  testify  in  any  matter  under  investiga- 
tion by  the  board,  he  shall  be  guilty  of  a  misdemeanor,  and  fined 
not   more    than   fifty   dollars   or   imprisoned    not   more   than   thirty 


1901,  c.  4,  s.   15. 

XL.     Sunday. 

3841.  Fishing  with  nets  on.  If  any  person  fish  on  Sunday  with 
a  seine,  drag-net  or  other  kiiid  of  net.  except  such  as  is  fastened  to 
stakes,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  not  less  than 
two  hundred  nor  more  than  five  hundred  dollars  or  imprisoned  not 
more  than  twehe  months. 

Code,  s.  1116;    18S3.  c.  338. 

Note.  This  section  does  not  apply  to  Onslow  county  so  far  as  established 
?eines  are  concerned.     1885,  c.   171;    1889,  e.  23. 

3842.  Hunting  on.  If  any  person  shall,  except  in  defense  of 
his  own  jjroperty,  hunt  on  Sunday  with  a  dog,  or  shall  be  found 
off  his  premises  on  Sunday,  having  with  him  a  shotgun,  rifle  or 
pistol,  he  shall  be  guilty  of  a  misdemeanor,  and  pay  a  fine  not  exceed- 
ing fifty  dollars,  or  be  imprisoned  not  exceeding  thirty  days. 

Code,  s.  3783;   1808-9,  c.  18,  ss.   1,  2. 

3843.  Hunting  wild  fowl  on  Sunday,  and  at  night,  if  any  per- 
son shall  hunt  or  shoot  wild  birds  or  fowl  on  Sunday;  or  hunt  or 
shoot  them,  except  crows  and  hawks,  on  any  day  of  the  week  after 
the  hour  of  sunset  and  before  the  hour  of  daylight,  with  gun  or  fire, 


3843  CKIMES— ZL.  Sunday.  Ch.   81 

or  use  any  guu  other  than  can  be  fired  from  the  shoulder,  he  shall  be 
guilty  of  a  misdemeanor,  and  fined  not  less  than  one  hundred  dol- 
lars or  imprisoned  not  less  than  thirty  days. 

Code,  ss.  2837,  2838;  1885,  c.  30;  1870-1,  c.  27,  s.  2;  1874-5,  c.  259. 

3844.  Running  trains  on.  If  any  railroad  company  shall  per- 
mit the  loading  or  unloading  of  any  freight  car  on  Sunday,  or  shall 
permit  any  car,  train  of  cars,  or  locomotive  to  be  run  on  Sunday 
on  any  railroad,  except  such  as  may  be  run  for  the  purpose  of 
transporting  the  United  States  mails,  and  passengers  with  their 
baggage,  and  ordinary  express  freight  in  an  express  car  exclusively, 

j  and  such  as  may  be  run  by  law,  such  railroad  company  shall  be  guilty 
[  of  a  misdemeanor  in  each  county  in  which  such  car,  train  of  cars  or 
locomotive  shall  run,  or  in  which  any  such  freight  car  shall  be  loaded 
or  unloaded,  and  upon  conviction  shall  be  fined  not  less  than 
five  himdred  dollars  for  each  offense:  Provided,  that  the  word  Sun- 
day in  this  section  shall  be  construed  to  embrace  only  that  portion 
of  the  day  between  sunrise  and  sunset ;  and  that  trains  in  transitu, 
having  started  on  Saturday,  may,  in  order  to  reach  the  terminus  or 
shops,  run  until  nine  o'clock  a.  m.  on  Sunday,  but  not  later,  nor  for 
■  any  other  purpose  than  to  reach  the  terminus  or  shops. 
Code,  s.  1973;  1897,  c.  126;  1879,  cc.  97,  203. 

XLI.     Telegraph  and  Telephone. 

3845.  Lines,  interfering  with.  If  any  person  shall  unnecessarily 
disconnect  the  wire  or  in  any  other  way  render  any  telephone  line 
or  any  part  of  any  such  line  unfit  for  use  in  transmitting  messages, 
or  shall  unnecessarily  cut,  tear  down,  or  destroy,  or  in  any  way  ren- 
der unfit  for  the  transmission  of  messages  any  part  of  the  wire  of 
a  telephone  line,  he  shall  be  guilty  of  a  misdemeanor,  and  on  con- 
viction thereof  shall  be  fined  or  imprisoned  in  the  discretion  of  the 
court  for  a  term  not  exceeding  two  years. 

1901,  c.  318. 

3846.  Message;  obtaining  knowledge  of  contents.  If  any  per- 
son wrongfully  obtain,  or  attempt  to  obtain,  any  knowledge  of  a 
telegraphic  message  by  connivance  with  a  clerk,  operator,  messen- 
ger, or  other  employee  of  a  telegraph  company;  or,  being  such  clerk, 
operator,  messenger,  or  other  employee,  wilfully  divulge  to  any 
but  the  persons  for  whom  it  was  intended,  the  contents  of  a  tele- 
graphic message  or  dispatch  intrusted  to  him  for  transmission  or 
delivery,  or  the  nature  thereof,  or  wilfully  refuses  or  neglects  duly 
to  transmit  or  deliver  the  same,  he  shall  be  guilty  of  a  misde- 
meanor. 

1889,  c.  41,  s.   1. 

1123 


3847  CUUl'ES—XLI.   Telegraph  aiid  Telephone.  Cli.   M 

3847.  Poles  and  wires,  injury  to.  If  any  person  shall  wilfully 

injure,   or  destrov,  or  pull   down  any  telegraph  or  telephone  pole, 
wire,  insulator  or  any  other  fixture  or  apparatus  attached  to  a  tele- 
graph or  telephone  line,  he  shall  be  giiilty  of  a  misdemeanor,  and 
fined  and  imprisoned  at  the  discretion  of  ihe  court. 
Code,  s.  1118;   1881,  c.  4;  1883,  c.  103. 

3848.  Telephone  message,  obtaining  knowledge  of.    If  any 

person  wrongfully  obtain,  nr  attempt  to  obtain,  any  knowledge  of 
a  telephonic  message  by  connivance  with  a  clerk,  operator,  messen- 
ger or  other  employee  of  a  telephone  company;  or,  being  such  clerk, 
operator,  messenger  or  other  employee,  wilfully  divulges  to  any 
but  the  persons  for  whom  it  was  intended,  the  contents  of  a  tele- 
phonic message  or  dispatch  intrusted  to  him  for  transmission  or 
delivery,  or  the  nature  thereof,  he  shall  be  guilty  of  a  misdemeanor, 
and  fined  or  imprisoned,  or  both,  in  the  discretion  of  the  court. 
1903,  e.  599. 

3849.  Trees,  felling,  on  wires.  If  any  person  shall  negligently 
and  carelessly  cut  or  fell  any  tree  or  any  limb  or  branch  therefrom 
in  such  a  manner  as  to  cause  the  same  to  fall  upon  and  across  any 
telephone  wire  or  electric  light  wire,  and  from  which  any  injury 
to  such  wire  shall  be  occasioned,  he  shall  be  guilty  of  a  misdemeanor, 
and  shall  also  be  liable  to  a  penalty  of  fifty  dollars  for  each  and 
every  offense. 

1903,  e.  616. 

XLII.     Teademaeks. 

3850.  Forgery  and  counterfeiting;  selling  goods  with  counter- 
feit marks.  If  any  person  shall  vend  any  goods,  wares  or  mer- 
chandise having  thereon  any  forged  or  counterfeite<l  marks,  tokens, 
stamps  or  labels  purporting  to  be  the  marks,  tokens,  stamps  or 
labels  of  any  person  being  a  resident  of  the  United  States,  knowing 
the  same  at  the  time  of  the  purchase  thereof  by  him  to  be  forged 
or  counterfeited,  he  shall  be  guilty  of  a  misdemeanor,  and  punished 
by  imprisonment  in  the  county  jail  not  exceeding  six  months,  or 
by  a  fine  not  exceeding  one  hundred  dollars,  or  by  both  fine  aiid 
imprisonment,  at  the  discretion  of  the  court. 

Code,  s.  1039;  1870-1,  c.  253,  s.  2. 

3851.  Forgery  and  counterfeiting;  fraudulent  use  of  brands. 

If  any  person  shall  knoM'iugiy  use  the  mark  or  brand  of  any  other 
person  on  any  sack,  or  shall  knowingly  impress  on  any  sack  the 
mark  or  brand  of  another  person,  with  intent  to  defraud  or  for 
the  purpose  of  enhancing  the  value  of  his  own  pro]ierty,  the  person 


3851  CEIMES— XL77.  Trademarks.  Ch.   81 

so  offending  shall  be  guilty  of  a  misdemeanor,  and  punished  as  if 
convicted  of  larceny. 

Code,  s.  1040;   1874-5,  c.  225. 

3852.  Private  marks,  stamps,  labels.  If  any  person  shall  know- 
ingly and  wilfully  forge,  or  counterfeit  or  cause  or  procure  to  be 

I  forged  or  counterfeited,  the  private  marks,  tokens,  stamps  or  labels 
of  any  mechanic,  manufacturer  or  other  person,  being  a  resident 
of  the  United  States,  with  intent  to  deceive  and  defraud  the  pui*- 
chasers,  mechanics  or  manufacturers  of  any  goods,  wares  or  mer- 
chandise whatsoever,  upon  conviction  thereof  he  shall  be  punished 
by  a  fine  of  not  less  than  fifty  dollars  and  not  exceeding  one  thou- 
sand dollars,  or  by  imprisonment  of  not  less  than  thirty  days  or 
more  than  five  years,  or  both  fine  and  imprisonment,  at  the  discre- 
tion of  the  court. 

Code,  9.  1038;   1870-1,  c.  253,  s.  1. 

3853.  Larceny  of  branded  timber.  If  any  person  shall  know- 
ingly and  unlawfully  buy,  sell,  take  and  carry  away,  secrete,  destroy 
or  convert  to  his  own  use,  any  timber  iipon  which  a  trademark  is 
stamped,  branded  or  otherwise  impressed,  or  shall  knowingly  and 
unlawfully  buy,  sell,  take  and  carry  away,  secrete,  destroy  or  con- 
vert to  his  own  use,  any  timber  upon  which  a  trademark  has  been 
intentionally  and  without  lawful  authority  removed,  defaced  or 
destroyed,  he  shall  be  deemed  guilty  of  larceny  thereof  and  pun- 
islied  as  in  other  cases  of  larceny. 

1903,  e.  261,  s.  5. 

3854.  Timber  trademark,  use  of.   If  any  person  shall  use  or 

attempt  to  use  any  timber  trademark  without  the  written  consent  of 
the  proprietor  thereof,  or  falsely  and  fraudulently  place  any  trade- 
mark on  timber  not  the  property  of  the  owner  of  such  trademark 
without  his  written  consent,  or  intentionally  and  without  lawful 
authority  remove,  deface  or  destroy  any  timber  trademark  or  the 
imprint  thereof  on  any  timber  or  intentionally  put  any  such  tim- 
ber in  such  a  position,  or  place  so  remote  from  the  stream  from 
which  it  was  taken,  or  on  which  it  was  afloat  as  to  render  it  incon- 
venient or  unnecessarily  expensive  to  replace  the  same  in  such 
stream,  lie  shall  be  guilty  of  a  misdemeanor. 

1903,  0.  201,  ss.  3-5. 

3855.  Timber  mark,  altering.    If  any  person  shall  wilfully 

change,  alter,  erase  or  destroy  any  registered  timber  mark  or  brand 
put  or  cut  upon  any  logs,  timber,  lumber  or  boards,  except  by  the 
consent  of  the  owner  thereof,  with  intent  to  steal  the  said  logs  or 
timber,  he  shall  be  guilty  of  a  misdemeanor,  and  punished  by  a 

112S 


3855  CRIMES— ZL77.  Trademavls.  Ch.  81 

fine  of  not  more  than  fifty  dollars  or  imprisoned  not  more  than  thirty 
days,  or  both;  if  the  snme  shall  have  been  done  with  a  felonious 
intent,  such  person  shall  be  guilty  of  larceny  and  punished  as  for 
that  ofi'ense. 

1889,  c.  142,  s.  3;  1903,  c.  41. 

3856.  Timber  mark,  taking  possession  of  logs  bearing.  If  any 

person  shall  knowingly  and  wilfully  take  up  ot  liiivc  in  his  posses- 
sion any  log,  timber,  lumber  or  board  upon  which  a  registered  tim- 
ber mark  or  brand  has  been  put  or  cut,  except  by  the  consent  of  the 
owner  thereof,  he  shall  be  guilty  of  a  misdemeanor,  and  punished 
by  a  fine  of  not  more  than  fifty  dollars  or  imprisoned  not  more 
than  thirty  days,  or  both. 
1889,  e.  142,  s.  4;   1903,  e.  42. 

XLIII.     Watersheds. 

3857.  Depositing  human  excreta  on.  If  any  person  shall  col- 
lect and  deposit  human  excreta  on  the  watershed  of  any  public  water 
supply  he  shall  be  guilty  of  a  misdemeanor,  and  punished  by  fine 
and  imprisonment,  in  the  discretion  of  the  court. 

1903,  c.  159,  s.  12. 

3858.  Discharging  sewerage  into  certain  streams.  If  any  per- 
son, firm,  corporation  or  other  officer  of  any  municipality  having 
a  sewerage  system  in  charge  shall  violate  the  provision  of  law  relating 
to  discharging  sewerage  into  streams  from  which  public  drinking 
water  is  taken  he  shall  be  guilty  of  a  misdemeanor. 

1903,  c.  1.59,  s.  13. 

3859.  Disobeying  instructions.  If  any  person  residing  on  or 
owning  property  on  a  watershed  of  any  stream  from  which  public 
drinking  water  is  obtained  shall  fail  to  comply  with  the  provisions  of 
the  law  for  protection  of  such  water  supply,  he  shall  be  guilty  of  a 
misdemeanor,  and  punished  by  a  fine  of  not  less  than  two  dollars 
nor  more  than  twenty-five  dollars,  or  by  imprisonment  for  not  less 
than  ten  nor  more  than  thirty  days. 

1903,  c.   159,  s.  7. 

3860.  Failure  to  provide  system  for  protection  of  watershed. 

If  any  person  or  municipality  shall   violate  the  provisions  of  law 
for  protecting  water.sheds  by  failing  to  provide  tub  system  for  hununi 
excrement,  as  required  by  law,  he  shall  be  guilty  of  a  misdemeanor, 
and  fined  or  imprisoned,  in  the  discretion  of  the  court. 
1903,  c.  159,  s.   14. 


3861  CRIMES— XL777.   Watersheds.  Cli.   81 

3861.  Inspection  of.  When  waterworks  are  owned  and  operated 
by  any  city  or  town,  failure  on  the  part  of  the  mnnieipal  offieials  hav- 
ing in  charge  the  management  of  the  waterworks  to  comply  with  the 
law  requiring  sanitary  inspection  of  watersheds  shall  be  a  mis- 
demeanor and  punished  by  a  fine  of  not  less  than  ten  nor  more 
than  twenty-five  dollars  or  by  imprisonment  for  not  less  than  ten 
nor  more  than  thirty  days:  Provided,  the  said  official  do  not  prove 
to  the  satisfaction  of  the  court  that  in  spite  of  reasonable  effort 
and  diligence  on  his  part  he  was  prevented   directly  or  indirectly 

tby  his  superiors  from  doing  his  duty  in  this  respect,  in  which  case 
said  superior  officer  shall  be  deemed  guilty  of  a  misdemeanor  and 
punished  by  a  fine  of  not  less  than  fifty  nor  more  than  two  hundred 
dollars  or  by  imprisonment  for  not  less  than  one  nor  more  than  six 
I  months. 

1899,  c.  670,  s.  4. 

3862.  Polluting.  If  any  person  shall  defile,  corrupt  or  pollute 
any  well,  spring,  drain,  branch,  brook  or  creek,  or  other  source  of 
public  water  supply  used  for  drinlcing  purposes,  in  any  manner,  or 
deposit  the  body  of  any  dead  animal  on  the  watershed  of  any  such 
water  supply,  or  allow  the  same  to  remain  thereon  imless  the  same 
is  buried  with  at  least  two  feet  cover,  he  shall  be  guilty  of  a  misde- 
meanor, and  fined  and  imprisoned,  in  the  discretion  of  the  coTirt. 

1903,  c.  159,  s.  11. 

Note.     For  injuring  water  supply  to  public  institutions,  see  s.  3458. 


Note.     For  crimes  relating  to  fishing,  etc.,  see  chapter  Oysters  and  Fish. 
For  crimes  relating  to  terrapin,  see  chapter  Oysters  anrl  Fish. 
For  crimes  relating  to  oysters,  see  chapter  Oysters  and  Fish. 


TABLE  OF  COMPARATIVE  SECTION   NUMBERS. 


The  numbers  preceding  the  dash  are  the  section  numbers  in  The  Code;   those 
following  the  dash  are  the  section  numbers  in  the  Revisal  of  1905. 


Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

1—174 

56—328 

108—901 

158—399 

2—176 

57—329 

109—356 

159—375 

3—177 

58—330 

110—210 

160—376 

4—178 

59—331 

3641 

161—359 

5—179 

60—332 

111—912 

162—366 

6—175 

61—333 

112—915 

163—362 

7—182 

62—334 

113—896 

164—367 

S— 183 

63—335 

114—909 

165—379 

10—1501 

64—336 

11.5—909 

166—370 

17—207 

65—337 

1 16—586 

167—368 

18—208 

66—338 

117—269 

168—369 

19—209 

67—339 

118—265 

169—365 

20-208 

68—340 

119—271 

170—364 

21-208 

69—341 

120—266 

171—372 

22—214 

70—342 

121—270 

172—371 

23—215 

71—343 

122—268 

173—374 

24—212 

72—295 

12.3—894 

174—377 

25—212 

73—296 

1 

24—907 

1977 

26—211 

74—891 

1 

25—346 

17.5—378 

27—210 

75—898 

1 

26—347 

177—400 

3041 

76—892 

1 

27—348 

178—408 

28—210 

77—295 

1 

28—349 

179-^04 

3641 

78—893 

1 

29—350 

180—405 

29—213 

79-3565 

1 

30—351 

181—406 

30—216 

80—909 

1 

31—353 

182—407 

31—252 

81—906 

1 

32—352 

18.3—409 

32—253 

82—896 

1 

33—3.54 

184^10 

254 

913 

802 

185—411 

255 

83—915 

1.34—355 

186—412 

256 

84—896 

135—357 

187—413 

33—257 

86—912 

138—360 

188—415 

34—258 

87—908 

139—380 

189—414 

35—259 

88-897 

140—381 

190^19 

36—200 

89—916 

141—382 

191—420 

37—261 

90—919 

142—370 

192—424 

38—262 

91—918 

14.3—383 

193—421 

39— 2a3 

92—920 

144—384 

194—423 

40—264 

93—1255 

145—385 

19,5—425 

41—2151 

94—1286 

146-386 

428 

42—2151 

95—915 

147—387 

196—426 

43—2235 

96—915 

14S— 362 

197—427 

44—1952 

1398 

149—304 

198—428 

45—1952 

97—915 

150—388 

199—429 

46—1952 

100—914 

151— ,390 

200-^30 

47—1952 

102—889 

1.52—391 

433 

51—280 

103—901 

15.3—392 

201—4,34 

52-3346 

104-902 

1,54—393 

202—435 

5.3—3346 

10.5-903 

15.5—395 

203—431 

54—3347 

106—904 

1 56—397 

204—432 

55—327 

1 07—905 

1 

-)7— ,398 

20.5—437 

COMPARATIVE  :NrUMBEKS. 


Code.   Rev. 

Code.   Rev. 

Code.  Rev. 

Code.   Rev. 

206—466 

257—488 

309—744 

369—778 

207—473 

258—489 

310—745 

370—784 

208^84 

400 

311—746 

371—785 

209—450 

401 

312—747 

372—786 

210—451 

402 

313—749 

373—774 

211^52 

493 

314—750 

374— 77.-. 

212—1265 

259—404 

315—755 

375 — 789 

213-^30 

260—195 

316—735 

376— 76S 

214—439 

201—196 

317—736 

377-787 

215—129 

262 — 497 

318—748 

378— 78S 

216—1270 

263— 40S 

319—756 

370— S4r, 

217-^40 

400 

320—757 

847 

218—442 

264—500 

.321—790 

2707 

210-443 

265—501 

322—791 

380—850 

220—449 

266—502 

323—792 

381—851 

221—442 

267^69 

324—793 

382—852 

222 — 455 

268—503 

325—794 

383—849 

223—456 

269—515 

326—795 

384—555 

224—457 

270—516 

327—796 

38.5—556 

225—458 

271—517 

328—797 

386—557 

226—459 

272—476 

329—798 

387 — 441 

227—444 

505 

330—799 

388—560 

228—446 

506 

331—800 

389—562 

229^445 

273—507 

332—801 

390—556 

447 

274r— 512 

333— S02 

391—544 

400 

513 

334—806 

392—545 

461 

275—510 

335—814 

393—546 

462 

270—509 

336—815 

394—547 

463 

277—511 

337—816 

395—548 

2773 

278—710 

338—806 

396—549 

230—559 

279—712 

339—810 

.397—526 

231—487 

280—713 

340—812 

398—527 

232—465 

281—714 

341—817 

399—527 

233—407 

282—715 

818 

400—528 

234— JOS 

283—716 

342—813 

401—530 

027 

284—718 

343—1205 

402—531 

23r — 180 

285—719 

344—819 

403—533 

627 

286—720 

345—820 

404—1969 

236—627 

287—711 

.340—811 

4415—1000 

237—453 

288—722 

347—758 

1077 

454 

289—724 

348—702 

406—1904 

238-^66 

290—726 

349—759 

407—534 

470 

291—727 

3.50—770 

408—550 

239—^74 

292—728 

351—761 

409—551 

240—475 

29.3—729 

352—766 

410— .5.52 

241—477 

294—730 

353—769 

411—553 

242—478 

205—731 

.3.54—771 

412— .5.54 

243—470 

734 

35.5—760 

413—535 

244—481 

296—732 

356—763 

414—5.36 

245 — tS2 

297—733 

357—765 

4  .5—538 

246^71 

298—737 

358—764 

416-540 

247—472 

299-738 

359—767 

417— .541 

248—185 

;inO— 752 

360—772 

418— .542 

249—558 

301—753 

.361—773 

419— .543 

250—486 

302—754 

362—776 

420—518 

251—358 

303—751 

36.3—777 

421—519 

252—010 

304—739 

364—779 

422—522 

253—611 

30.5—741 

36,5—780 

.525 

254—612 

306—740 

366—781 

423—520 

2.55—613 

307—742 

367—782 

524 

256-588 

308—743 

368-783 

424—563 

COMPARATIVE  NUMBERS. 


Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

425—565 

483—662 

532—1255 

.591—1622 

426—566 

484—663 

533—1268 

592—1623 

427—567 

485—664 

534—1276 

593—1624 

428—569 

486—665 

535—1277 

594—873 

429—568 

487—666 

536—1259 

874 

431—570 

488— G67 

537—1261 

875 

432—571 

668 

538—1263 

876 

433—573 

670 

539—1278 

595—877 

434—572 

671 

.540—1279 

596—887 

435—574 

672 

541—1272 

.597—878 

621 

673 

542—1281 

879 

436—575 

489—674 

543—1251 

880 

437—619 

490—669 

544—583 

881 

438—577 

675 

545—584 

882 

439—578 

491—670 

546—514 

884 

440— G20 

492—676 

547—585 

885 

441—615 

493—678 

548—587 

598—2819 

442—616 

494—673 

549—590 

599—521 

443—617 

679 

550—591 

600—504 

G22 

495—680 

551—592 

002-888 

444—623 

496—681 

552—593 

603—826 

445—636 

497-682 

553—597 

(i04— 1198 

446—2818 

498—683 
499—1273 

554—598 

605—1198 

447—625 

..   555—599 

607—827 

448—627 

500—684 

556—600 

1197 

449—624 

501—685 

557—601 

608—828 

450—629 

502—687 

558—602 

609—831 

451—631 

503—688 

559—603 

610—8.39 

452—630 

504—689 

560—594 

611—843 

45.3—632 

50.5—692 

561—595 

612—3601 

454—643 

506—693 

562—589 

613—844 

455—645 

507—095 

56.3—605 

614—832 

456—641 

508—696 

564—606 

615—840 

457—642 

509—694 

565—607 

616—833 

2889 

510—1274 

.566—1282 

617—1209 

458—647 

511—704 

567—803 

618—1210 

459—644 

512—697 

568—804 

619—1203 

2888 

51.3—098 

569-805 

621—845 

460—648 

514—707 

570—580 

622—822 

461—649 

515—705 

571—581 

623—823 

462—650 

516—708 

572—582 

824 

463—633 

3584 

57.3-860 

624—853 

464—634 

517—690 

574—859 

625—854 

465—635 

3585 

57.5-861 

626—855 

466—637 

518—690 

576—862 

627—856 

467—638 

3586 

577—863 

628—857 

468—639 

519—699 

578— 165G 

629—858 

469—626 

520—706 

1658 

630—825 

470—618 

.021—1275 

579—864 

631—925 

471—651 

.522—701 

580—865 

632—926 

472—640 

523—702 

1633 

633—927 

473—652 

.524—703 

.581—866 

634—928 

474—653 

709 

582—867 

63.5—929 

475—654 

525—1264 

583—868 

636—929 

476—655 

526—1266 

584—809 

637—929 

477—656 

527—1266 

58.5-870 

638—930 

478—657 

1267 

1      586—871 

639—929 

470-658 

528—1249 

587—872 

640—931 

480—659 

529—1955 

.""188—1636 

641—9.32 

481—660 

530—19.54   ■ 

589—1628 

642—934 

482—661 

531—19.56 

590—1631 

643—937 

COMPAKATIVE  NUMBERS. 


Code.   Rev. 
044—938 
645—935 
64(5—936 
647—302 
648—939 
049—940 
050—941 
051—942 
652—942 
053—943 
654—944 
655 — 945 
656—944 
657—1051 
658—1052 
659—1053 
600—1053 
661—299 

1048 
(;62— 300 
663—1128 
664—1146 
665—1142 
000-1128 
067—1200 
668—1203 

1219 

1222 
669—1204 
070—1207 
677—1137 
678—1139 
679—1139 
680—1234 
681—1192 
682—1139 
684—1134 
685—1130 
(186—1155 

1197 
687—1201 
688—1246 
689—1168 
690—1128 
691—1128 
692—1128 
693—1128 
694—1196 
09.5—1199 
096—1235 
697—1238 
698—1238 
699—1230 

2879 
700—1237 

2879 
701—1129 

2560 
702—1309 

2915 


Code. 

Rev. 

703—1309 

2917 

704- 

-1310 

2910 

705- 

-1310 

706- 

-1317 

707- 

-1319 

708- 

-1316 

709- 

-2785 

710- 

-1324 

277(i 

711- 

-3590 

712- 

-1325 

713- 

-1326 

715- 

-1610 

710- 

-1312 

717- 

-1313 

718- 

-1.320 

719—1314 

1315 

720—1321 

721- 

-1,322 

722- 

-1323 

723- 

-1376 

4111 

724- 

-1378 

725- 

-1377 

726- 

-1378 

727- 

-1.398 

728- 

-1380 

729- 

-1382 

730- 

-1381 

731- 

-3605 

732- 

-1253 

733- 

-1256 

1283 

130G 

734- 

-1257 

3588 

735- 

-1258 

736- 

-1286 

737- 

-1295 

738- 

-1297 

739- 

-1283 

740- 

-1289 

741- 

-1285 

742- 

-1262 

743- 

-1302 

744- 

-1.303 

74.5- 

-1.304 

746- 

-1.305 

747- 

-1290 

748- 

-1306 

749- 

-1293 

750- 

-1294 

751- 

-1387 

752- 

-1.388 

753- 

-1379 

754- 

-1385 

7.5.5- 

-1386 

Code.  Rev. 
756—396 
757—1384 
758-1389 
7.59—1391 
760—1392 
701—1393 
702—1390 
703—2781 
704—1383 
706—297 
707—1405 
768—1.395 
769—1.397 
770— 1.39(i 

277.S 
771—1406 
772—1399 
77.3—1398 
774—2779 
775—1407 
777—1404 
778—1400 
779—1401 
780—1402 
781—1403 
782—1335 
783— 13.3(i 
784—1337 

3574 
785—1972 
786—1360 
787—1364 
788—1.366 
789—1.368 
790—1.301 
791-1370 
792—1371 
79.3—1309 
794—1.367 
795—1365 
796—1362 
797—1363 
798—1372 
799—1373 
800—1374 
801—1375 
818—1408 
819—1409 
821—1411 
822—1412 

3.-)89 
823—1413 
.824—1425 
82.5—1415 
826—1414 
827—1417 
S2S— 1418 

3578 
829—3578 
830—1444 


Code.      Rev. 

831— 141t; 

832—14-1.-. 

833— 141t; 

834—1419 

83.5— 1421 

830—142- 

837—142:! 

838-1424 

839— 147:i 

840— 14.-7 

14.-.S 

14.-.!' 

141  id 

14(;i 

14i;l' 
I4i;:; 

14(11 

14(;.-. 
I4(;t; 

14(1S 
14(1'.  I 
14711 
1471 
1471^ 

147:; 

1481 
841— 14SJ 
842— 14S:; 
84.3—1484 
844-1477 
84.5—1478 
840-1480 
847—14.52 
848-1420 
849-1475 
850 — 1475 
851—1475 
8.52—1475 
8.5.3—1474 
8,54—1428 
855-1429 
856—1430 
8,57—1431 
858—1433 
859—1434 
860—1435 
801—14.36 
802—1437 
86.3-1438 
864—1443 
865—1489 
866—1440 
867—14.39 
868—1441 
809—1432 
870—1442 
871—1447 
872—1449 
87.3—14.50 
874-1451 


COMPARATIVE  NUMBERS. 


Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

875—1490 

936—1520 

991—3568 

1052—3723 

876—1491 

937—1850 

992—3569 

10.53—3714 

877—1492 

938—564 

993—3771 

1054—3785 

878—1493 

939—1504 

994—3330 

1055-3632 

879—1494 

940— 88G 

995—3332 

1056—3633 

880— G08 

1529 

996—3333 

1057—3716 

881—609 

941—1524 

997—3334 

1058-3462 

882—1485 

942—403 

998—3571 

1059—3462 

883—1486 

1525 

999—3627 

1060—3351 

884— 14S7 

943—1528 

1000—3626 

1061—3352 

88.5—1488 

944—1503 

1001— .3317 

1062—3673 

886—1495 

945—1539 

1002—3314 

106.3—3674 

887—1420 

946—1540 

1003—3313 

1064—3498 

888—1476 

947—1537 

1004—3623 

1065—3499 

889—1475 

948—1538 

1005—3708 

1066—3505 

890—1475 

949—989 

1006—3813 

1067—3509 

891—1475 

950—1555 

1007—3816 

1068—3504 

892—1427 

2770 

1008—3815 

1069—3503 

893—3165 

951—2762 

1009—3575 

1070—3511 

894— .3170 

953—1535 

1010—3.349 

1071—3.508 

895—1.307 

954—1536 

1011—3572 

1072—3510 

896—3191 

955—1533 

1012— 3G28 

1073—3.598 

897—3256 

956—1534 

1013—3629 

1074—3507 

898—3257 

957—1542 

1014—3406 

107.5—3500 

899— .3258 

958—290 

1015— .3407 

1070—3529 

900—3274 

959—1550 

1016—3408 

1077—3524 

901—3275 

960—2769 

1017—3409 

1078—3525 

902—3200 

961—1541 

1018—3403 

1079—3528 

903—3260 

962—1544 

1019—3404 

1080—3636 

904—1308 

963—1.547 

1020-3252 

1081—3677 

90.5—1292 

964—1548 

1021—3657 

1082—3676 

906—3261 

965—1545 

1022—3577 

10S3— 3368 

907—1455 

966—1546 

1023—2822 

1084—3369 

908—1467 

967—1543 

1024—3430 

1085—3370 

909—1496 

968—1549 

102.5—3432 

1086—3772 

910—1506 

969—1551 

1026—3433 

1087—3678 

911—1509 

970—3355 

1027—3434 

1088—3680 

913—1511 

971—3356 

1028—3670 

1089—3435 

914—1512 

.972—3357 

1029—3424 

1090—3576 

915—1513 

97.3—3358 

1030—3419 

1091—3789 

916—1516 

974—3359 

1031—3427 

1092—3615 

niS— 1.514 

975—3618 

1032—3421 

109.3—3616 

27G5 

976-3619 

1033—3425 

1094-3417 

919—1517 

977—3287 

1034—3426 

109.5—3439 

920—1518 

978—3289 

1035—3422 

1096—3292 

921-1515 

979—3288 

1036— .3423 

1097-3293 

922—1500 

980—3290 

1037—3420 

1098—3754 

923—1502 

981—3710 

1038—3852 

1099—3755 

924—1497 

982—3512 

1039—3850 

1100—3763 

925—1519 

983—3522 

1040—3851 

1101—3637 

926—1510 

984—3513 

1041—33.50 

1102— .3638 

927—1527 

985— .3335 

1042—3716 

110,3—3624 

928—2837 

333G 

104.3—3716 

1 1 04—3625 

929—1530 

3337 

1044—3717 

1 1 05—3639 

930—1.531 

3340 

1045-3718 

1106—3437 

931—2777 

3344 

1046—3719 

1107— .3438 

932—1.521 

986—3543 

1047—3726 

1108-35.55 

933—1522 

987—3620 

1048—3727 

1109—3556 

9.34—1.523 

988—3361 

1049—3720 

1110—3557 

935—561 

989—3428 

10.50—3721 

1111—35.58 

990—3697 

1051—3722 

1112— .3604 

COMPAJRATIVE  NUMBERS. 

Code.      Rev. 

Code.      Rev. 

Code.      Rev. 

Code.      Rev. 

1113—3640 

1172—3164 

1233—3229 

1293—1508 

1114—3456 

1173—1254 

1234—3277 

1294— 12C,S 

3457 

2804 

1235—3278 

155S 

1115—3843 

1174—3151 

1236—3279 

1295— 15li'J 

1116—3841 

1175—3240 

1237—3276 

1296—1570 

1117—3532 

1176—3241 

1238—3259 

1297—3983 

1118—3847 

1177-3147 

1239—5381 

1298-3984 

1119—3606 

1178—3148 

1240—5382 

120!> — 120!) 

1120—3688 

1179—3149 

1243—3285 

39S."i 

1121—3746 

1180-3208 

1244—3280 

1300—3980 

1122-3418 

1181—3280 

1245—979 

1301—3987 

1123—3559 

1182—3150 

980 

1302— 3985a 

1124—3176 

1183—3254 

1246—989 

1303—3988 

1125- 3181 

1184—3243 

1247—993 

1304—3989 

1126—3178 

1185—3246 

1248—994 

1305-3990 

1127—3179 

1186—3248 

1249—987 

130G— 3991 

1128—3180 

1187—3249 

1250—990 

1307—3992 

1129—3177 

1188—3250 

1251—1598 

1308—3993 

1130—3182 

1189—3255 

1252—986 

1309—3994 

1131—3183 

1190—3251 

1253-988 

1310—3995 

1132—3156 

1191- 3253 

1599 

1311—3990 

1133—3157 

1192-1628 

1254—982 

1312—3997 

1134—3158 

1193—3234 

1255—1131 

1313—3998 

1135—3159 

1194—3239 

1256—952 

1314—3999 

1136—3160 

1195—3267 

1257—957 

131.5—4000 

1137—3161 

1196—3235 

1258—991 

1310—4001 

1138—3190 

1197—3236 

1260—1009 

1317—4002 

1139—3190 

1198—3262 

1261—1009 

1318—4003 

3207 

1199—3263 

12G2— 1022 

1319—4004 

1140—3212 

1200—3264 

1263—1023 

1320—4005 

1143—3162 

1201—3153 

1264—976 

1321—4000 

1144—3192 

1202—3272 

1265—1036 

1322—4007 

1145—3194 

1204—1296 

1266—1008 

1323— 12(>8 

1140—3193 

1205—3220 

1207-950 

1324^028 

3194 

1206—3221 

951 

1325-1578 

1147—3196 

1207—3222 

1268—996 

1326—1579 

1148—3197 

1208—3217 

1269—985 

1327—1581 

1149-3195 

1209—3218 

1270—963 

1328—1582 

1150—3193 

1210—3219 

985 

1329—1583 

1151—3199 

1211—1291 

1271—1046 

1.330—1.584 

1152—3202 

1212—401 

1272—958 

1331—1585 

3203 

1213—402 

1273-1039 

13.32—1.586 

1153—3198 

1214—3152 

1040 

1334—1587 

1154—3204 

1215—1637 

1274—1040 

133.5—1.588 

1155-3232 

1216—3165 

1275—983 

13,36—1000 

1156—3202 

1217-3166 

1270—1037 

1337—1001 

1157—3205 

1218—3167 

1277—1505 

1338-1.594 

1158—3206 

1219—3169 

1278—949 

13;!9— 1.592 

1159—3154 

1220—3170 

1280—946 

1.340—1593 

11  GO— 3209 

1221—3172 

1281—1556 

1.341-1.590 

llGl— 3210 

1222—3174 

1282-1557 

1.342—1616 

11G2— 3211 

1223—3175 

1283—1500 

1.34.3—1618 

1163-3230 

1224—3168 

12S4— 2083 

1344—1619 

11G4— 3231 

1223—3214 

1285—1501 

1.34.5—285 

1105-3184 

1226—3171 

1280—1562 

1346-1600 

UGG- 3185 

1227—3215 

1287-1563 

1.347—628 

1107—3186 

1228—3216 

1288—1564 

1.348—1602 

1168—3187 

1229—3260 

1289—1559 

1349—1020 

U  09-3 188 

1230—3226 

1290—1505 

1350—1028 

1170—3189 

1231—3227 

1291—1566 

1351—10.30 

1171—3163 

1232—3228 

1292—1567 

i;;.52— n;2(i 

COMPAEATIVE  NUMBEKS. 


Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

3—1634 

1409—61 

1468—123 

1529—53 

4—1635 

1410—63 

1409—124 

1530—54 

5-1639 

1411-03 

1470—125 

1531—55 

0-1643 

64 

1471—126 

1532—56 

7—1652 

1412—67 

1472—127 

1533—57 

8—1645 

1413—65 

1473—128 

1534 — 58 

9^1646 

1414—66 

1474—130 

1535—86 

0—1647 

1415—170 

1475—131 

1536—138 

1—1648 

1416—87 

1476—173 

1537—139 

2—1649 

1417—88 

1478—132 

1538—140 

;— 1650 

1418—88 

1479—4 

1539—141 

+— 1651 

1419—90 

1480—7 

1540—142 

->— 1301 

1420-89 

1481—8 

1541—143 

;— 1640 

1421—39 

1482—9 

1.542—171 

7—1644 

1422—39 

1483—133 

1543—145 

S— 1298 

1208 

1484—134 

1544—146 

)— 1299 

1423—40 

1485—135 

1545—960 

0—1300 

1424—41 

1486—136 

1546—961 

1—1642 

1425—91 

1487—137 

1547—962 

2—1641 

1426—92 

1488—147 

1548—964 

3—1657 

1427—93 

1489—148 

1549—965 

4—16 

1428—94 

1490—156 

1550—966 

5—17 

1429—97 

1491—157 

1551—1939 

0—3 

1430—69 

1492—83 

1552—974 

7—5 

1431—51 

1493—82 

155.3—975 

8—5 

1432—95 

1494—2 

1554—970 

11 

143.3—172 

1495—167 

1555—977 

9—6 

1434—168 

1496-96- 

1550—1758 

0—12 

1435—67 

1497—158 

1557—321 

1—26 

1430-08 

1498—59 

1558—322 

2—27 

1437—77 

1499—60 

1559—1781 

3 — 22 

1438—74 

1500—59 

1560—17.59 

4—23 

1439—75 

1501—159 

1.561-1760 

5—24 

1440—78 

1502—166 

1761 

6—25 

1441—76 

1503—84 

1.562—1762 

7—29 

1442—70 

1.W4— 1.53 

1563—1763 

8—29 

1443—79 

4283 

.1564—1764 

319 

1444—80 

150.5—85 

1505—1765 

9—18 

1445—81 

1500—974 

1566—1766 

0—19 

1440—72 

1507—160 

1507—1767 

320 

1447—73 

1508—161 

1.568—1768 

1—320 

1448—104 

1509—162 

1509—1769 

2—320 

1449—105 

1510—144 

1570—963 

3—19 

1450—106 

1511—129 

1570 

4—20 

1451—107 

1512—155 

1571—1770 

5—21 

1452-108 

1513—164 

1572—1771 

6—42 

1453—109 

1514—105 

157.3—1777 

7—43 

1454—110 

1515—28 

.  1574—323 

8—44 

1455—111 

1510— .30 

1778 

9—36 

1456—112 

1517—31 

157.5—1779 

99 

1457—113 

1518—32 

1.576—1780 

0—100 

14.58—114 

1519—33 

1577—1802 

1—101 

14.59—115 

1520—34 

1578-1803 

2—103 

1460—110 

1521—35 

1579—1804 

3—46 

1461—117 

1522—1 

1.581—324 

4^8 

1462—118 

1523—163 

1781 

98 

146.3—169 

1524—149 

1582—1782 

5—49 

1404—119 

152.5—150 

1.583—1774 

6—45 

140.5—120 

1526—151 

1584—1812 

7—47 

1466—121 

1527—152 

1.58.5-1813 

8-62 

1467—122 

1528—52 

1586—1815 

COMPAKATIVE  NUMBERS. 


Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

1587—1814 

1648—1851 

1712—2571 

1773—2007 

1588—1786 

1649—1841 

1713—2572 

1774—2009 

1589-1787 

1650—1842 

1717—2598 

1775—2006 

1590—1788 

1C51— 1852 

3767 

1776—2010 

1591— 17S9 

3581 

1718— 4S43 

1777—2001 

1592—1953 

1 652 — 3597 

1719 — 1844 

1778—1264 

1593—1795 

1653-3582 

1720—4845 

1779—2011 

1594—1792 

1654—3583 

1721—3693 

1780—2011 

1505—179(5 

1656—1830 

4846 

1781—2016 

2862 

1657—1833 

1722—1957 

1782—2014 

159G— 1790 

1658—3155 

1723—1957 

1783—2017 

1597—1791 

1659—1845 

1980 

1  784—2026 

1598-1816 

1660—1268 

1726—1958 

1785-2027 

1599—1817 

1661—18.53 

1727—1959 

1786—2036 

1000—1818 

1662—1854 

1728—1960 

1787—1264 

IGOl— 1816 

1663—1855 

1729-1901 

1 788—2032 

1G02— 1798 

1664—1856 

1730—1962 

1789—915 

1603-1799 

1065-1857 

1731—1959 

2028 

1604—1800 

1666—1858 

1732—1963 

2773 

1605—1801 

1667-1859 

3733— 19<;7 

1790—2027 

1606—1783 

1668-1860 

1976 

1791—2029 

1607—1775 

1669—1861 

1734—1977 

1792—2035 

1608—1776 

1670—1890 

1735—1979 

179.3—2033 

1609-1810 

1671—1892 

1736—1978 

1 794—2030 

1610—1811 

1672-1893 

1737—2798 

1795—2031 

1611—1797 

1673—1891 

1738—1973 

1796—1998 

1612—1808 

1674—1896 

1739—1974 

1797—2024 

1613—1809 

1675—1897 

1740—1975 

1798—2025 

1614—1784 

1676—1894 

3602 

1799—20.52 

1015—1785 

1677—1900 

1741—1970 

1800—20,54 

1617—1805 

1678—1901 

1742—1971 

1801—2019 

1618-1800 

1679—1902 

1743—976 

1802—2020 

1619—1807 

1680—1903 

1744—1982 

180.3—2019 

1620—1772 

1681—1904 

174.5—1983 

1804—2041 

1621—1773 

1682—1905 

1746—1986 

1805—2042 

1622—1794 

168.3—1906 

1747—1987 

1806—2043 

1023—1821 

1684—1907 

1748—1988 

1807—2044 

1624—1822 

1685—1908 

1749—1990 

1 808—2045 

1625—1823 

1686—1895 

1750—1984 

1 809-2082 

1626—1824 

1687—1898 

1751—1991 

ISIO— 2083 

1627—1825 

1688 — 4835 

1752—1985 

1811—2084 

1628—1827 

1689—2737 

1753-1992 

1812—2081 

1629-1829 

2758 

1754—1993 

181.3—2086 

1630—1829 

4836 

1 755—1994 

1814—2088 

1631—1828 

1690^837 

1756—1995 

181,5-2089 

1632—1826 

1691—48.38 

1757—1996 

ISKi — 2090 

163.3—1831 

1692—4839 

1758—1997 

1817—2087 

1634—1843 

1693— .3595 

1759—3664 

3372 

1635—1844 

4840 

3665 

IS18— 2091 

1636—1832 

1696^842 

1760—3682 

1819—2092 

1637—1834 

1697—4847 

1761—3686 

1820—963 

1638—1835 

1698—2575 

1762—1999 

1821—985 

16.39-1836 

1700-2586 

176.3-2000 

1822-2106 

1640—1837 

1701—2578 

1764—947 

1823—2101 

1641—1838 

1702—2576 

1765—1989 

1824—2103 

1642—18.30 

170.3—2577 

1766—2001 

182,5—2104 

1643—1840 

1707—2.597 

1767—2002 

1826—2094 

1644—1846 

1708—2597 

1768—2003 

1827—2112 

164.-1—1847 

1709—2597 

1769—2004 

1828—2113 

1646—1848 

1710-2.569 

1770—2005 

1829—2114 

1647—1849 

1711—2570 

1772—2008 

1830—2115 

COMPAEATIVE  NUMBERS. 

Code.      Rev. 

Code.      Rev. 

Code.      Rev. 

Code.      Rev. 

1831—2116 

1802—2487 

1054-2568 

2014—2681 

1832—2117 

1893—2402 

1055—2596 

201.5—2712 

1833—2105 

1894-2491 

1056—2590 

2016—2715 

1834— 

2096 

1805—2493 

1957.-2567 

2017—2725 

1835— 

2107 

1896—2494 

1958—2604 

2018—2726 

1836— 

2108 

1897—2495 

1962—2629 

2019—2721 

1  1837— 

2100 

1898—2486 

1963—2611 

■     2020—3779 

;  1838— 

2102 

1899-2406 

1964—2631 

2021—2716 

:  1830— 

2098 

1900—2407 

1965—2630 

2022—2717 

i  1840— 

2097 

1901—2498 

1968—3762 

2023—2683 

1  1842^ 

2085 

2791 

1909—2563 

2024—2713 

1843-2109 

1902—2791 

1970—2623 

3770 

1844—2110 

2792 

1971—2612 

2025—2682 

1845—2111 

1904—2512 

3747 

2026—2718 

1846—2119 

1905—2514 

1972—3758 

2027—2719 

1847—2120 

1006—2513 

1973—2613 

2028—2728 

1S48— 2121 

1007—2518 

3844 

2029—2695 

3679 

1008—2516 

1974—3756 

2030—2722 

1849—2122 

1900—2517 

1975—2601 

2031—3783 

1850—2123 

1010—2702 

3753 

2032—2723 

1851—2124 

1011—2499 

1976-2647 

2033—2724 

1852—2125 

1912—2500 

1977—2600 

2034—2696 

1853— 212G 

1913—2501 

1978—2628 

2035—2702 

1854—2127 
1855—1269 

1914—2502 
1915—2503 

1979—3752 

2030—2697 

1980—2564 

2037—2703 

2128 

1916—2793 

1981—1135 

3773 

1856—2129 

1917—2504 

1136 

2038—2684 

1857—2130 

1918—2505 

1982—2566 

2039—1268 

1858—2141 

1919—2519 

1983—2602 

2690 

1859—2142 

1920—2520 

1984—2603 

2040—2685 

1860—2143 

1021—2512 

1985—2637 

2041—2692 

1861—2144 

2515 

1986—2638 

2042—2693 

1862—2145 

1922-2791 

1987—2639 

2043—2714 

1863—2794 

1923—2485 

1988—2605 

2044—2720 

1864—1554 

1932—2548 

1989—2606 

204.5—2706 

1865—021 

1933—2540 

1990—2607 

204G— 2707 

1860-923 

19.34—2550 

1991—2608 

2047—2708 

1870—2365 

1935—2551 

1992—2609 

2048—2709 

1871-2366 

1936—2552 

1993—2610 

2049—2710 

1872—2368 

1937—2553 

1994-2574 

2050—3774 

1873—2367 

1938—2554 

1995—2640 

2051—2701 

1874—308 

1939—2555 

1996-2558 

2052—2699 

1875—309 

1940—2556 

1997—2559 

2053-2608 

1876-310 

1941—2557 

1098-2500 

2054—2700 

1877—311 

1942—2018 

1999—2561 

3775 

1878—312 

1943—2579 

2000—2562 

205.5—2705 

1870—313 

1JM4— 2580 

2001—2648 

2056—1268 

1880—3573 

2581 

3760 

2686 

1881—312 

2582 

2002—3760 

2057—2694 

314 

2583 

2004—1235 

2058—2711 

1882—278 

1945-2584 

2005—2565 

3781 

1883—281 

1 940-2585 

2006—984 

20,59—2726 

1884—282 

2587 

2007—1571 

2060—2704 

1885-316 

2790 

2008-1572 

2061—2727 

1S86— 317 

1947—2591 

2009—1573 

2062—2687 

1887—315 

1948—2592 

2579 

2063—2688 

318 

1949—2593 

2010—1574 

2064—2689 

1888-286 

1950—2594 

2011—1575 

206.5—3784 

1880 — 283 

1951—2595 

2012—1576 

2066—2812 

1890-284 

1952—2599 

201.3—1269 

2067—2809 

1891- 

279 

1953—2573 

1577 

COMPARATIVE  NUMBEES. 


CkxJe.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

2068—2809 

2130—3106 

2209 — 4429 

2281—217 

2812 

2131—3107 

2210—2757 

2282—218 

2069—2809 

2132—3108 

2211—4433 

2283—219 

2070—298 

2133—3109 

2214—3863 

2284—220 

2071—2811 

2134—1268 

2215—3864 

2285—221 

2073—298 

3110 

2216—3865 

2288—3544 

2074—2813  ■ 

2135—2777 

2217—3866 

2289—5315 

2075—2814 

2788 

2218—3867 

2290—5316 

2070—2815 

2136—3113 

2219—3867 

2291—5317 

2077—2810 

2137—3111 

2220—3868 

2292—5318 

2078—2777 

2138—3112 

2221—3869 

2293—5319 

2079—2817 

2139—3114 

2222—3870 

2297—3880 

2080—2821 

2140—3140 

2223—3873 

2301—5006 

2081—2816 

2141—3141 

2224—3874 

2302—2806 

2082—2829 

2142—3142 

2225—3875 

5om 

2083—2823 

2143—3143 

2226—3876 

2303—2806 

2084—2828 

2144—3144 

2227-^187 

5008 

2085—2824 

2145—3145 

4542 

2304—5013 

2087—2827 

2146-3119 

2228-^188 

2305—5010 

2088—2820 

2147—3120 

2229—4189 

2306—291 

2089—2777 

2148-3127 

2230^190 

2307—3742 

2090—2777 

2149—3126 

4200 

2308—3742 

2091—3592 

2150-3128 

2231—4191 

2309—5016 

2092 — 2826 

2151—3122 

2232—4193 

2310—5017 

3587 

2152—3123 

2233 — 4194 

2311—5018 

2093—2842 

2153—3125 

2234—4195 

2312— .5009 

2094—2844 

2154—3124 

223.5^4196 

2313—3745 

2095—2845 

2155—3131 

5370 

2314— .5009 

2096—2843 

2156—3133 

2236—4197 

5015 

2097—2846 

2157—3130 

2237^198 

2315—5015 

2098—2847 

2158—3135 

2238—4199 

"5316— ,5014 

2099—2848 

2159—3136 

2240 — 4.542 

2317—3028 

2100—2840 

2160—3137 

2241 — 4.543 

2318—3315 

2101—2841 

2161—1268 

2242—4544 

2325—3323 

2102—3083 

2162—5 

2243—4544 

2326—2645 

2103—3084 

2163—10 

2248 — 4554 

2331— .3913 

2104—3082 

2164—13 

2249—4561 

2332—3914 

2105—3082 

2165—6 

2250—4564 

233.3—3915 

2106—3085 

2166—14 

2251— .5370 

2334— .3916 

2107—3086 

2167—15 

4505 

2335—3917 

2108—3080 

2168—3146 

4553 

2336—3919 

2109—3081 

2169—29 

2252—4567 

2337—3920 

2110—3087 

2170—37 

2253-^562 

2338— ,3918 

2111—3088 

2171—38 

22.54—4551 

2339—3921 

2112—3088 

2172—36 

4559 

2340—3921 

2113—3089 

2173-3129 

2256-^575 

2341—3560 

2114—3090 

2174—3139 

4576 

3921 

2116—3091 

2175—1603 

2257—4580 

2342—3922 

2117-3095 

2176-3115 

2258—4580 

2343—3923 

2118—3092 

2177—3116 

22.59—4590 

2344-3023 

2119—3093 

2178—3117 

2261—4.563 

2345—3924 

2120—3096 

2179—3118 

2262—4574 

2482 — 3290 

2121—3097 

2180-3138 

2266 — 4555 

2483—3301 

2122—3098 

2181—1607 

2268 — 4552 

2484— .3311 

2123—3099 

2182-1608 

2269-1980 

2485—1682 

2124—3100 

2183—1609 

2270 — 4568 

2486—3302 

2125—3101 

2184—3931 

2271—4,554 

2487—3300 

2126—3102 

2185—3930 

2272 — 4558 

2488—3295 

2127—3103 

2199-3943 

2278—4573 

2489—3200 

2128—3104 

2202—2459 

2279 — 4582 

2490—329!! 

2129—3105 

2208—3937 

4594 

2493—37 1 1 

COMPAEATIVE  NUMBEES. 


Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.'  Rev. 

2494—3712 

2640—4277 

2785—1738 

2849 — 4404 

2495—1659 

2641—4277 

2786—1748 

2850—4406 

2496—1659 

2642—4277 

2787—1749 

2851 — 4407 

2499—3305 

2643—4277 

2788—1750 

2852—3570 

'2r,(lO— 3304 

2644^278 

2789—2631 

285,3—4412 

:j..(ll— 3303 

2645—4279 

2795—3669 

2854—3692 

■J.-.(I2— 3501 

2640—4280 

2796—3668 

2855—4400 

J..():!— 4030 

2647—4281 

2799—1660 

2856^413 

-.-,114^031 

2048-4281 

2800—1664 

2857—3611 

■J.llir>— 4032 

2049—4281 

2801—1665 

28.58—4415 

li.'iiK;— 4033 

2651—4180 

2802—1671 

2859 — 4416 

■J.-,(I7— 4034 

4186 

280.3—1666 

2S60— 2803 

■_',-,()H— 4030 

2052-^180 

2804—1667 

4414 

2509—403!) 

418G 

2805—1668 

2861—4418 

2510—4040 

26.5.3—4181 

2800—1669 

2862^417 

2'51 1—4041 

27.51—1693 

2807—1670 

2863-^428 

2512 4042 

1694 

2808—1663 

2864—4408 

404.^ 

1690 

2809—1663 

5373 

2513— 4040 

2752—1697 

2810—1063 

2865 — 4410 

4040 

2753-1698 

2811—3319 

5373 

2514—4049 

.3414 

2812—1672 

2866—4411 

251.5— 40.S7 

3415 

281.3—1673 

5373 

4049 

2754—1692 

2814—1674 

2867 — 1420 

2516—4051 

2755—1699 

2815—1676 

2868-2732 

2517 — 1038 

2756—1700 

2816—1679 

4421 

2523^043 

2757—1701 

2817—1680 

2869—4425 

2524—4044 

2758—304 

2818—3312 

2870-^426 

252.5^045 

2759—1704 

2819—3310 

2871-2730 

2526—4052 

2760—1703 

2820—3411 

2734 

2527—4047 

2761—1743 

3412 

4427 

2528—4048 

2762—303 

2821—1678 

2872—2730 

2529—4049 

276.3—1720 

2822—1681 

287.3—2735 

2530—4037 

2764—1733 

282.3—1683 

2874 — 4405 

2534-^050 

2765—1707 

2824—1685 

287.5^435 

2.592—3838 

1708 

282.5—1686 

2876—4437 

2610 — 4260 

1709 

2826—1677 

2877—1436 

2611^261 

1713 

£827 — 3322 

2878—4440 

2012—4265 

2801 

2828-3321 

2879—4444 

261.3—4264 

2766—1731 

2829—3320 

4445 

2614—4262 

2767—1710 

2831—3480 

2880—4446 

2615—4263 

2768—1712 

2832—1881 

2881^440 

2616—4269 

2769—1716 

3466 

l.>882— 4447 

2617 — 4266 

1717 

2834—1884 

2883—4508 

2618—4209 

1718 

1885 

2884—4450 

2619—4270 

1719 

1886 

288.5-^451 

2620— 426S 

1734 

3466 

2886^438 

2621—4269 

2770—1715 

283.5—3471 

2887—4442 

2622 — 4272 

2771—1714 

2836—3464 

2888—3055 

2623—4273 

2772—1702 

2837-34.59 

3056 

2624—4267 

277.3—1711 

3843 

289.3—4510 

262.5—4268 

2774—1721 

2838—3843 

2804—3451 

2626-4282 

277.5—1705 

2839-3479 

4511 

2627—4283 

2776—1706 

2840—3477 

289.5-4515 

2028 — t2S4 

2777—1732 

2841—1687 

2890-^517 

2620-4284 

2778—1728 

2842—1687 

2897—4521 

2030 — 1200 

2779—1729 

2843-1688 

2898 — 4518 

42S5 

2780-1730 

2844 — 4398 

2899—4520 

263.3—4275 

2781-1740 

284.5—4399 

2900^519 

26.34—4275 

2782—1746 

2846—4403 

2901 — 4514 

263.5—4275 

278.3—1745 

2847—4401 

2902—4516 

2639—4274 

2784—1737 

2848-^402 

2903^538 

COMPAKATIVE  NUMBERS. 


Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

2904—4513 

2960—1929 

3055—4673 

3139—4473 

2905^537 

2961—1928 

3057—2360 

3140—4475 

2906—4536 

2962—1927 

3058^674 

3141 — 4476 

2907—4462 

2963—1937 

3059^675 

4477 

2908—4461 

2964^1940 

3060—4676 

3143—3829 

2909 — 4460 

3614 

3080—5426 

3144— .3829 

2910—4535 

2965—1938 

3081—5429 

314.5-3048 

2911—4535 

2966—1942 

.3082—5428 

3146 — 4473 

2912—4526 

2967—1915 

3083—5426 

3148 — 4468 

2913 — 1527 

2968—1916 

3084—5427 

3149—4463 

2914—4529 

2969—1916 

3085—3546 

3150—4464 

2915—4535 

2970—1917 

3086—3550 

3151—4467 

2916 — 1522 

2971—1918 

3087—3545 

31.52—4466 

2917—4512 

2972— 1918a 

3088-2521 

3153—4465 

2918—4523 

2973—1919 

3089—2522 

3154—3642 

2919—4524 

2974—1943 

3090—2523 

3155—4468 

2920—4525 

297.5—1944 

3091—2524 

3156—3(542 

2921—4528 

2976—1945 

3092—2524 

4470 

2922 — 1532 

2977—1941 

3093—2525 

3161—4859 

2923—4623 

2978—1946 

3094—2526 

3162—4860 

2924—4623 

2979—1947 

3095—2527 

316.3—4852 

2925—4630 

2980—1948 

3096—2528 

3165^860 

2926—4626 

2981—1949 

3097—2529 

3173^880 

2927—4624 

2982—5308 

3098—2530 

3175—4868 

4C27 

2989^638 

3099—2531 

3176 — 4870 

•2928—4632 

3003-^639 

3100—2532 

3192—294 

2929—4629 

3004—4640 

3101—2533 

3200—4900 

2930—4633 

300.5—4641 

3102—2534 

3230—4878 

2931—4625 

3000—4642 

310.3—2535 

3231—4879 

2932—4635 

3007—4643 

3104—2536 

.323.5—3612 

2933^635 

3009—4644 

310.5—2537 

3236—4869 

2934—4634 

3010—4645 

3107—25.38 

3247 — 4857 

2935—1631 

3011—4646 

3108—2539 

3248^856 

2936—4635 

3012—4647 

3109—2773 

3256—4852 

2937 — 4628 

3013—4648 

2776 

3257-^858 

2938— 2G75 

3014—4649 

3116—3518 

3259-^855 

2077 

301.5—4050 

.3519 

3261-^898 

2678 

3016—4651 

3119—3365 

3263—4859 

2679 

3017—4652 

3120—3365 

3264^859 

2939—2678 

3018-^653 

3121—4491 

3265—4860 

2940—2675 

3020^654 

3122^502 

3206— J861 

2676 

3021—4655 

312.3—4492 

3267—4862 

2941—2676 

302.5^656 

3124—4498 

3271 — 4880 

2942—1930 

3036—4657 

3125—4499 

.3272 — 4881 

2943-1930 

3037^658 

3126—4493 

3273—4908 

2944—1930 

3038-^659 

3127-^495 

3274—35.30 

294.5-1931 

3039—4660 

3128—4494 

3.541 

2946—1931 

3040—4661 

3129—4500 

3275—2750 

2947— 19.S2 

3042^662 

3130—4.501 

3282—4913 

2948—1934 

3043 — 4663 

3131—4496 

328.3 — 4914 

2949—1935 

3044^664 

3133— 1.503 

3284 — 4915 

2950-1933 

304.5—4665 

3134—4497 

3285 — 1895 

2951—1920 

3046—3580 

313.5 — 4471 

3292—4930 

29.52—1921 

3048—4666 

31.36—4472 

3293^4953 

2953—1922 

3049—4667 

3137— .3649 

3294 — 4953 

29.54-1022 

3050—4668 

.36.50 

4954 

2955—1923 

.3051—4637 

3651 

329.5 — 4955 

2956—1924 

4669 

3652 

3296—4955 

2057-1925 

3052—4670 

3653 

3297—4956 

2958—19.36 

305.3—4671 

3654 

3298—4957 

2959—1926 

3054—4672 

3138-4473 

3299—4955 

COMPAKATIVE  NUMBERS. 

Code.      Rev. 

Code.      Rev. 

Code.      Rev. 

Code.      Rev. 

3300—4953 

3360—2740 

3429—5395 

3528^965 

:  3301—3380 

5367 

3430—5392 

3529^966 

3302—2146 

5378 

3432—5398 

3535—4972 

3303—3.551 

3361—5379 

3433—5410 

3536—4980 

3304— 2.347 

3362—5369 

3435—5400 

3537—3560 

:  3305—2348 

.5363—1552 

3437—5399 

4982 

,  .3306—2349 

2771 

3438—5400 

3538—3560 

3307—23.50 

5380 

3440—3517 

3540—1327 

:  3308-2800 

3364—4089 

3441—3662 

3541—1328 

1  3309—2354 

3373—1260 

3442—5407 

3.542—1332 

,  3310—2355 

337.5—2369 

3443—5408 

3543—1329 

3311—2356 

3376—2369 

3444—5401 

3544—1333 

3312—2358 

3377—2370 

3445—5402 

3545—1334 

*  .3.S1.3— 2.357 

3378—2424 

3446—5405 

3546—1331 

3314—2361 

3379—2467 

3447—5406 

3547—1330 

3315—2360 

3380—2467 

3448—1352 

3548—4886 

3316—2359 

3381—2433 

3449—5410 

3.549^887 

3317—5323 

3382—2448 

3450—3659 

3552^888 

3318—5324 

3383—2439 

5411 

3553—4891 

3319—5325 

3384—2460 

3451—5412 

3554—4890 

;«20— .5328 

S385— 1950 

.3452—5413 

3555—4889 

5332 

2465 

3453—1354 

3556—3542 

3321—5351 

3386—2444 

3454—1353 

3558—3540 

3322—5331 

3387—2457 

3455—3658 

3560^892 

3323—5331 

3388—2457 

3456—1342 

3561^893 

3324—5332  ' 

.3389—2400 

3457—1351 

3562—5019 

3325—5327 

2457 

3603 

356.3—5020 

.3326—5327 

2465 

3458—1350 

3564—5021 

5330 

3390—2372 

3603 

3565—5022 

3327—5330 

3391—2373 

.3459—1349 

3566—5023 

3328— .5339 

3392—2374 

.3460—1345 

3567—5024 

5340 

3395—2454 

3461—1346 

3568-5025 

3329—5339 

3396—2446 

3462—1347 

3569—5026 

3330—5341 

3397—2453 

346.3—1344 

3570—5028 

3331—5342 

2455 

.3661 

3571—5029 

33.32—5340 

3398—2461 

3464—1343 

3572—5030 

5343 

3399-2458 

.346.5—1338 

357.3—5031 

3333—5338 

3400—2443 

3466—1339 

3574—5032 

3334—5333 

■3401—2477 

3467—1340 

3575—5033 

3335—5329 

3402—2476 

.3469—1341 

3576—5039 

3336—5334 

3403—2468 

3470—1348 

3577—5034 

3337—5347 

3404—2475 

3471—3660 

3578 — 5035 

3338—287 

3405—2466 

3472^990 

3579 — 5036 

3339—5344 

3406—2473 

3479—4992 

3580—5037 

3340—5345 

3408—2445 

3482—4958 

3581—5038 

3341—5346 

3409—2472 

3487—307 

3582—5040 

3342—5363 

3410—2462 

3490—1976 

3583—5041 

3343—5348 

3411—2463 

3495 — 4979 

3584—5042 

.3344^5350 

3412—2464 

3497^980 

3585—5043 

5351 

3414—2448 

3512—4961 

3586—5044 

5358 

3416—2427 

3514—4963 

3587—5045 

5359 

3417—2428 

351.5-^971 

3588—5046 

5360 

2429 

3517—4973 

3589—5047 

3350—5365 

.3418—2478 

3518—4976 

3590-5048 

3351—5366 

3420—2435 

3519—4974 

3.591—5049 

3352—5368 

3421—2425 

3520^977 

3592—5050 

335.3—5364 

3422—2474 

,3521--1975 

3593—5051 

3356—5370 

3423—2426 

3522—4978 

3594—5052 

3357—288   . 

3425—2479 

352.3 — 4970 

359.5—5053 

3358— .5377 

3427—5383 

3524—4962 

3,596—5054 

3359—5375 

3428—5397 

3.52.5—4981 

3597—5055 

COMPAEATIVE  NUMBERS. 


Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

Code.   Rev. 

3598— 5U5C 

3661—2660 

3732—2762 

3806—2937 

3599— .5057 

3662—2661 

3733—2764 

3807—2909 

,3601—5350 

3003—2664 

3734—2765 

3808-2938 

3003-5350 

30(J4 — 2605 

3735 — 2706 

29311 

:!G04— 2748 

3600 

3736—2767 

3809—2940 

5077 

3665—2672 

.3737—2747 

3810—293!! 

3005—5082 

3666—2674 

2708 

3811—2927 

3006—2770 

3667—2670 

3738—2769 

3812-2942 

.5084 

3668—2671 

3739—2773 

3813—2972 

3608—5081 

3669—3776 

3740—2774 

3814—3609 

3609—5071 

3670—3705 

3741—2790 

3815-2971 

3010—5071 

3674—2853 

3742—2787 

3816—2973 

3011—5072 

3675—2880 

3743—2775 

.3817-2916 

3612—5069 

3678—3594 

3744—2801 

3818—2934 

3613—5086 

3681—2856 

3746—2799 

3819—2935 

3614—5074 

3082— 2803 

3747—2798 

3820—3702 

301.5—5075 

2804 

3748-2788 

3821—2975 

3616—5088 

2880 

3749—2800 

3823—29711 

3617—5087 

3686—2867 

3751—2776 

3788 

3618—5090 

3088—2884 

3752—2777 

3824—2978 

3619— .5352 

2885 

3753—2780 

3825—2979 

3620—5092 

2887 

3754—2802 

3826—2980 

3021—292 

3091—2801 

3756—2803 

.3827-2918 

3622—5095 

2887 

3757—2805 

3828—3735 

362.3—5095 

2889 

3758—2804 

3829—3735 

3627—5100 

2890 

3759—2743 

3730 

3628—5100 

3692—2871 

3760—1250 

3830—3737 

3629—5105 

369.3—2891 

3761—911 

3831—3735 

3631— .5349 

3694—2891 

3762—1252 

3832—3738 

3&32— 5097 

3698—2859 

3763—2015 

383.3—3735 

5353 

2862 

3764—2830 

3834—3738 

363.3—5096 

3099—2859 

3765—2831 

.3835—19.50 

3034—5361 

3700—2858 

3766—2832 

.3836—396 

303.5-5098 

3705—3410 

3768—2833 

1951 

5357 

3706—5297 

3782—2836 

3837—3063 

.5.362 

3707-5208 

378.3—3842 

3838—3064 

3030— 5099 

3708—5299 

3784—2838 

3839 — 3069 

.5a54 

3709—5300 

2839 

3840—300 

3637—5101 

3710—5.301 

378.5—2839 

.3072 

5355 

3711—3561 

3786—2839 

3841-3073 

3640—5356 

3712— .5302 

3787—2919 

3842—3007 

3641—53.56 

371.3—5303 

3788 — 2944 

3843—3065 

3642—5360 

3714 — 5304 

3791—2922 

3S44— 3008 

3644—5102 

371.5—3.383 

3792—2943 

384.5—27.59 

3040-5103 

3716—5305 

3793—2921 

.!846— 3070 

5104 

3717—5306 

3704—2931 

3847— .3071 

3647—2652 

3719—5307 

2933 

3848—3074 

3648—301 

3720—2736 

379.5—2949 

3849—3066 

3649—2651 

3721—2737 

3796—2941 

3850—3066 

3650—2653 

3722—2738 

3797—2945 

3866—4046 

3651—26.54 

.372.3—2739 

3798—2932 

3867—5453 

3652—2655 

.5370 

3799—2920 

3868— .5454 

365.3—2656 

3724—2741 

2923 

3809—54.55 

3654—2658 

3725—2742 

.fSOO— 2924 

3870—5450 

365.5—2669 

3726—2744 

2925 

3871— .5453 

3656—2666 

3727—2745 

3801—2928 

3872— .5457 

3657—2667 

3728—2746 

;!S02 — 2929 

387.3—5458 

3658—2668 

2771 

3803-2926 

.•'.876— .5-153 

3059—3599 

3730—2750 

29.30 

3660—2659 

3731—2772 

3804-2923 

NDEX. 


Explanatory. —The  references  are  to  sections.  Where  the  expression  is  used.  "See  under  this 
head,"  the  word  "  head  "  has  reference  to  the  same  general  index  head  under  which  the  person  is 
then  looking. 


ABANDONMENT : 

child  abiiiidoned  by  parent :  custody  forfeited,  180. 

custody  restored,  ISl,  1853,  1854. 
cropper  abandouiug  crop  iu  certain  counties ;  effect,  2001,  2056. 
divorce  from  bed  and  board  granted  for,  1562. 
family  abandoned  by  husband,  a  misdemeanor,  3355. 

husband  not  working,  prima  facie  evidence,  3356. 
husband  abandoned  by  wife  eloping;  effect  on  wife's  rights,  8.  2110. 
railroad  station ;  company  not  allowed  to  abandon,  1098. 
wife,  by  husband  ;  effect  on  husband's  rights,  9,  2111. 
makes  wife  free  trader,  2117. 

may  get  alimony  pendente  lite,  without  notice,  1566. 
when  a  lunatic ;  entitled  to  alimony,  1895. 

ABATEMENT: 

actions ;  circumstances  warranting,  415. 

none,  by  corporation  dissolution,  1208. 

death  of  party,  in  tort  action,  after  verdict,  415. 
devises ;  to  provide  for  after-born  child,  138,  140.  141. 
legacies ;  to  provide  for  after-born  child,  139,  141. 
nuisance :  failure  to  abate,  a  misdemeanor,  3446. 

.ludgment  for  removal  of,  when,  825. 

milldam  abated  as  a,  2138,  2142. 

towns  have  power  to  force  abatement  of,  2929. 
plea  in,  to  remedy  venne  in  criminal  actions,  3239. 

ABDUCTION: 

apprentice;  enticing,  from  employer,  193. 

child  ;  by  parent  after  forfeiting  custody,  felony,  3373. 

from  kindred,  by  one  not  so  near  related,  felony,  3358.  3359. 
kidnapping  person  a  felony,  3634. 

married  woman ;  by  one  not  her  husband,  felony,  3360. 
testimony  of  woman  not  sufficient  to  convict.  3360. 

ABETTING  :     See  Crimes  and  Punishments. 

ABORTION ; 

administering  to  mother  to  destroy  child,  felony.  3(!18. 
to  procure  miscarriage,  felony,  3619. 

ACCEPTANCE  :     See  Negotiable  Instruments. 

ACCEPTOR  :     See  Negotiable  Instruments. 

ACCESSORIES : 

after  the  fact,  to  felonies  ;  trial  and  punishment.  3289. 
before  the  fact,  to  felonies ;  trial  and  punishment.  3287.  .3200. 
duelling:  aiders  and  abettors  in.  aecessor.v  to  murder,  when.  3629. 

11-13 


INDEX. 

ACCOUNT : 

action  on,  liquidated  and  settled,  when  tried.  484. 
adnjinisti'ation ;  annual,  99. 
tlual,  1U3. 

comijelled.  100-131.     See  Administration. 

stated  by  clerk,  117,  118. 
auctioneer's,  made  to  clerk  semi-annually,  218. 
book  accounts  as  evidence,  1622-1C24. 
clerk  of  superior  court  renders.  918-920. 

clerk  of  supreme  court  files  semi-annual,  of  certain  nionejs,  1554. 
copy  of,  evidence  when,  1624. 
corporation  commission  required  to  keep,  1115. 
county  commissioners;  audit  accounts  against  county,  131S  (5). 

publish  annual.  1320. 
county  otlicers  make  annual  statement  of,  1380-1383. 
county  treasurer;  exhibits  account  to  county  commissioners.  1398   (5). 

keeps  county's,  1398  (2). 
current ;  when  cause  of  action  accrues  on,  376. 
eleemosynary  corijorations  compelled  to,  how,  1197. 
guardian's;  1802-1809.     See  Guardian. 

compulsory  before  resigning,  1776. 
Itemized,  verified,  furnished  person  contesting,  when,  494. 
limitations,  statute  of,  begins  to  run  against  current,  when,  37G. 
oyster  commissioner's,  to  state  treasurer,  2405. 
partner,  surviving,  accounts  with  representative  of  deceased,  2540. 

accounting  compelled,  when,  2547. 
pleading ;  not  necessary  to  itemize  in,  when,  494. 
prima  facie  evidence,  when,  1G25. 
record  of,  kept  by  clerk  superior  court,  915  (12). 
reference  to  take  an,  519  (2). 

railroad  officials  must  accomit  to  successors.  2648. 
trustee's,  in  assignment  for  benefit  of  creditors,  973. 
warehousemen  keep  books  of ;  o]ien  to  public,  3035. 

ACCUSED  PERSON: 

bail  allowed,  when  :  taken  by  whom.  3207-3213,  3228. 
counsel  allowed,  3150. 

failure  to  indict,  when  charged  with  felony,  discharged.  315."). 
preliminary  hearing  before  magistrate,  3100-3206.     See  Preliminary  Hear- 
ing. 

ACKNOWLEDGMENT : 

conveyances,  for  probate  and  registration,  989-1007.     See  I'lobate. 

form  of,  1002. 
debt,  to  repel  bar  of  statute  of  limitations,  371. 
note,  b.v  partner  or  maker ;  effect  of.  372. 

ACRE: 

dimensions  of,  3065. 

ACTION.  CIVIL: 

abatement  of;  circumstances  warranting,  415. 
accounting  of  personal  representative  compelled  by.  104. 
administi-ator,  etc.,  action  by  and  against,  .30,  31,  150-16."),  167. 
administrator's  right  of,  59,  00. 
appeal  in.  .^)S3-613.     See  Appeal.  Civil  Action, 
apprentice's  right  of,  on  indenture,  199. 

auxiliary  remedies  fo.     See  Arrest  and  Bail  ;  .\tlaclinieMt :  Claim  and  De- 
livei'y. 
.   l)arr<'(l  when.     See  Limitations.  Statute  of. 
liMstarcly.  2.1i-2(:4.     See  Bastardy  Proceedings. 

1144 


INDEX. 

ACTION,  CIVIL — contumed: 

boiiils ;  oUiflal,  fiduciary,  etc..  subject  of,  2S0-28G,  297,  2940. 

buruing  woods  of  anotber,  subject  of,  3346. 

causes  of;  divided  wben  demurrer  for  misjoinder  sustained,  470. 

wbat  can  be  joined,  4G9. 
client's  rigbt  of,  against  attorney  for  fraud,  215. 

against  attorney  for  negligence,  214. 
cloud  uiion  title  removed  by,  1589. 
t-oUector's  rigbt  of ;  power  ceasing,  wbo  continues,  25. 
commenced  by  summons,  359,  1444. 
contested  elections.     See  Contested  Elections, 
controversy  submitted  witbout,  8(i3-S05. 
corporation ;  cbarter  of,  vacated  by.  82ij,  827.     See  Quo  Warranto. 

dissolution  of,  enforced  by,  1190-1211. 
costs  in,  adjudged  how,  1204-1282.      See  Costs, 
county  brings,  to  use  of  county  workhouse,  when,  1372. 
creditor's,  against  heir  and  representative,  53-58,  94. 
gives  no  preference.  55,  94. 

against  trader  not  showing  his  Interest.  2118. 
damages;  actions  for.     See  Damages, 
defined,  351,  2340. 

detinue.  790-802.     See  Claim  and  Delivery, 
discontinued  wben  chain  of  summonses  broken,  438. 
dismissed,  when,  400.  503.     See  Dismissal  of  Action, 
distinction  between  legal  and  equitable  remedies  abolished,  354. 
distributee's  rigbt  of,  against  representative,  when,  144. 
divorce  and  alimony  subject  of,  1557-1570. 
ejectment.      See  Ejectment, 
entry  followed  by,  within  one  year,  385. 
evidence  in,  1592-1059.     See  Evidence. 
fees  of  officers  in.     See  Fees, 
forfeiture  of  property  to  state  enforced  by,  845. 
franchise  of  corporation  tested  by,  820,  827,  1196-1198. 
judgment  in,  555-.5S2.      See  .ludgment. 
jurisdiction,  1410-1420.  1.500-1505.     See  Jurisdiction, 
legatee's  right  of ;  to  recover  legacy,  when,  144. 
libel  subject  of.  2012-2014.     See  Libel, 
liens  enforced  liy.  2027. 
limitations  of  time  to  commence,  359-399.     See  Limitations.  Statute  of. 

statute  begins  to  run  ;  is  suspended  ;  revived,  300-379. 
mad  dog  biting  any  one  subject  of.  3.305. 
mandamus,  822-824.     See  JIandamus. 
married  woman  ;  actions  by  and  against,  408. 
negligeiji  e ;  actions  for.    See  Negligence, 
nuisance,  825. 

office,  public,  subject  of.  when  826-845. 
official  bonds  destroyed  can  be  subject  of,  334. 
parent's  rigbt  of.  for  selling  minor  child  liquor.  3.525. 
parties  to.  400-418.     See  Party  to  Action  or  Proceeding, 
penalties  ;  action  to  enforce.     See  Penalties  and  F.orfeitures. 
personal  representative's  right  of,  to  recover  estate,  156-165. 
pleadings  in,  405-514.     See  Pleadings, 
prisoner's  right  of.  for  injury  by  jailer,  3001. 
lu'ocedure  in.      See  Civil  Procedure  :  Courts.  Justices', 
property  fraudulently  conveyed,  recovered  by,  50,  72,  73.""' 
(pio  warranto  to  contest  election,  820-845.     See  Quo  Wai'Wirto. 
railroads  liable  to.  wben  certain  regulations  violated,  1091,  1092. 
real  property;  injury  to.  subject  of,  1470. 

title  to.  quieted  by.  1.589. 
reference  of.  518-525.     See  Reference, 
removal  of.  4"25-428.  14.55.     Sep  Removal  of  .Vctions. 
repeal  of  statute  givnig.  does  not  affect  action  brought,  2830. 

1145 


INDEX. 

ACTION,  CIVIL — continued: 

replevin,  790-802.     See  Claim  and  Delivery, 
sheriff  liable  to,  for  escape  of  prisoner,  750. 
slander  subject  of,  2U12-2U15. 
summons  in,  429-440.     See  Summons, 
survival  of  right  of,  to  representative,  157,  158. 
taxiwyer's,  to  recover  taxes  illegally  assessed,  2855. 
trial  of,  48i  52G-549.     See  Trial,  Civil  Action, 
usurper  of  public  office  liable  to,  82(;-845. 
venue  of,  419-428.     See  Venue,  Civil  Action, 
verdict  in,  550-554.    See  Verdict,  Civil  Action, 
waste,  8.53-858. 
wrongful  death,  59,  60. 

ADJUTANT  GENERAL:     See  Volume  II,  Militia, 
salary  of,  and  allowance  for  office  expense,  27."i0. 

ADMINISTRATION : 

absent  heir  jjresumed  dead,  when,  151. 
accounts  of  representative — 
annual,  99,  100. 

failure  of  representative  to  file ;  effect,  lOti. 
final,  103. 

record  of,  kept  by  clerk,  915  (12). 
vouchers  filed  as  evidence,  99,  101. 
accounting  compelled  by — 

citation  and  attachment,  100,  103. 
civil  action,  104,  129. 

account  ordered  to  be  taken,  129. 
special  proceedings,  104-131. 
account  taken  by  clerk,  117. 

excepted  to;  judgment  rendered.  118. 
appeal  to  superior  court,  119,  120. 

bond  for  costs  on;  one  sufficient,  119. 
certain  creditors  can  issue  execution.  121. 
advertisement  for  creditors,  107.  108. 
personal  service  on  creditor,  108. 
assets  found  ;  judgment.  122-124. 

execution  may  issue  for  what,  124. 
claims ;  filed  by  creditor,  100. 
proven  how,  110. 
list  of,  filed  by  representative.  111. 
notice  of,  to  creditors.  111. 
creditor's  claim  disputed,  clerk's  duty.  11;!. 
complaint  filed  by  creditor,  11."). 

cause  transferred  to  superior  conrt.  111. 
representative  can  plead  later,  llO. 
judgment  for  certain  creditors,  where  docketed,  121. 
new  assets  found  after  report,  creditor  proceeds.  128. 
personal  assets  insufficient,  land  sold,  130. 
representative  files  list  of  claims.  111. 
passes  on  claims,  113-120. 
sunnnons  in  proceeding  retiu-nable  where,  106. 
action  against  estate — 

continued  by  whom,  when  letters  revoked,  165. 

creditor's,  against  representative,  barred,  when.  392 

gives  no  preference,  55,  05. 

how  brought,  100. 

when  judgment  in.  a  lion.  162. 


INDEX. 

ADMINISTRATION— conimMCd; 
;K-tion  against  estate — continued. 

by  representative,  in  representative  capacity,  for — 
damages  to  estate,  159,  160. 
recovery  of  assets,  159. 

property  fraudulently  conveyed  by  decedent,  50,  72,  73. 
real  property,  159. 
wrongful  death,  59,  00,  2S25. 
recovery  in,  not  assets,  59. 
rights  of;  survive  to  representative,  when,  150. 
survive  to  successor  of  representative,  158. 
administrator ;  his  apijointment,  bond,  liabilities.     See  Administrator, 
administrator  cum  testamento  auuexo.      See  Administrator, 
adultery ;  effect  of,  on  right  to  administer,  8,  9. 

advancements ;  heirs  must  account  for,  133-135.     See  Advancements, 
advertisement  for  creditors  to  file  claims,  39-41. 
after-born  child  ;  share  of,  in  ancestor's  estate,  138-140. 
personalty,  139,  140. 
realty,  138,  140. 
no  petition  filed  for  share,  representative's  duty,  143. 
treated  as  devisee  and  legatee,  142. 
application  for  letters  of,  20,  27. 
assets,  45,  58. 

action  to  recover.  159.  100. 

consists  of  what,  45-58. 

fraudulently  conveyed  property,  when,  50. 

inventoried,  42,  44. 

legal  and  equitable,  distinction  abolished,  4.1. 

new,  discovered  by  creditors  ;  procedure,  128. 

inventoried,  44. 
personal ;  crops  ungathered,  47. 

proceeds  from  sale  of  realty,  part  of,  48. 
trust  estates  in  personalty,  46. 
real ;  what  proceeds  from  sale  of  realty,  40. 
shown  by  clerk's  accounting,  127. 
wrongful  death  ;  recovery  in  action  for,  not,  59. 
barred  after  ten  years  from  death  of  intestate.  ,307. 
bond  of  representative,  23,  28,  29,  205.  319. 
action  on,  by  person  injured.  30. 

successor  brings,  when.  31. 
new  one  required,  when,  32. 

failure  to  give,  letters  revoked.  34. 
successor  appointed.  35. 
surety  companies  may  give,  273. 

expense  charged  to  estate,  277. 
surety  in  danger  of  loss ;  remedy.  3.3. 
<'aveat  to  will  filed  suspends,  3137. 
chapter  on,  applicable  to  what  estates,  172,  173. 
children;  distributive  shares  of,  in  ancestor's  estate.  132-137. 
choses  in  action  of  doubtful  value,  sold,  how.  07. 
claims  against  estate:  action  on,  gives  no  preference,  .55.  90,  162. 
advertisement  foi-  creditors  to  file.  39-41. 
cost  of,  39. 
proven,  how.  40. 
disputed,  barred  in  six  months,  93. 

may  be  referred,  92. 
not  presented  within  one  year  after  iiotii  e.  who  liable.  94. 
proved  and  paid.  87-98. 
clerk  superior  court ;  duties  concerning.     See  Clerk.  Superior  Court, 
collector.  23-25.     See  Collector  of  necedeiit's  Estate, 
commissions ;  representative  entitled  to,  on  s(>ttleitient.  149. 
contemiit ;  reiiresentntive  failing  to  .■iccount,  guilty  of.  100. 

1117 


INDEX. 

ADMINISTR-ATION— co»<i?!«ed.- 

contract  of  sale  by  decedent,  reijreseutative  executes,  83. 

contribution  between  heirs,  devisees,  legatees,  etc.,  58. 

conversion  of  estate;  representative  liable,  1G7. 

conveyance  by  heir  within  two  years  of  letters  granted,  70. 

corporate  stock  of  decedent  voted  how,  1185. 

costs  in  actions  concerning  estate.     See  Costs. 

creditors :  action  of,  against  heirs,  devisees,  legatees.  .5l;-.j8. 

may  compel  accounting.  104-131. 

notice  to,  to  file  claims,  39,  41. 
crops  ungathered  at  death,  go  to  representative.  47. 
debts  against  estate ;  heirs  jointly  liable  for,  52. 

not  due ;  may  be  paid  with  rebate  of  interest,  90. 
paid  by  others  liable,  55. 

payment  of,  adjudged  by  clerk,  when.  122.  124. 
lireference  given  to  none  out  of  class,  55,  88. 
proof  of.  how  made,  91. 

due  estate,  by  executor,  not  cancelled  by  appointment,  51. 
delayed  ;  collector  appointed.  22. 

devises,  abatement  of,  to  provide  for  after-born  child,  1.38,  140,  141. 
devistavit  by  representative,  167. 
distribution  generally,  132-137,  1556  (r.  2,  6). 

advancements ;  accounted  for.  133. 
heir  must  render  schedule  of,  134. 

bastard  children  ;  legitimated  share  how,  263,  264. 
share  In  mother's  estate,  136.  137. 

distributive  shares  and  legacies  paid  clerk,  145,  146. 

order  of,  132. 

recovered  damages  for  wrongful  death  subject  to.  .59. 

representative's  duties  when  child  is  after-born,  143. 
disqualifications  to  appointment  to  administer,  5. 
divorce ;  effect  of.  on  right  of,  7. 

elopement  of  wife  forfeits  right  of,  on  husband's  estate,  8. 
estate  held  b.v  two  or  more  representatives,  nature  of,  166. 
estates;  to  what,  chapter  Administration  applies.  17"2,  173. 
evidence  against  decetlent  not  allowed,  when,  1631. 

representative  may  testify  as  to  estate  in  his  hands.  16.32. 
may  prove  book  accounts,  how,  1023. 
evidences  of  debt,  how  sold.  07. 
execution  against  decedent's  estate  issues,  when.  121,  162. 

in  favor  of  estate,  successor  issues.  164. 
executor ;  appointment,  powers,  liabilities.     See  Executor. 

deemed  to  have  renounced,  when,  13. 

de  son  tort ;  defined,  2. 

•  not  guilty  of  devistavit.  when,  168. 

executor  of.  not  executor  of  first  testator.  15. 
family  ma.v  use  crops  till  widow's  allowance  made.  1. 
foreign  ;  jiroven  how.  IGIS. 
form  of  letters  of,  36. 

fraudulent  conveyances  by  deceased  attacked,  .50,  72.  73. 
funds  of  estate  invested,  how,  1792.  1793. 
granted;  prior  to  .Tuly  1.  1869,  what  law  applicable.  172.  173. 

sub.sequent  to  July  1.  1869,  what  law  applicable,  172,  17.3, 

to  whom.  3-13. 
gravestones  erected  by  representative,  when.  102. 
guardian  dying,  representative  of,  settles  with  clerk,  1794. 
heir;  bond  of  decedent  binding,  paid  by  representative,  98, 

distributive  share  of.  in  ancestor's  estate,  132-137. 
heirs ;  jointly  liable  for  decedent's  debts,  when.  52-58. 

contribution  between.  ,58, 
husband's  right  to  administer  on   wife's  ostalc.  3,  4. 

forfeited,  7,  9.  1509.  2109.  2111. 

114S 


INDEX. 

ADMINISTRATION— con<i««e(Z; 

infants  interested  in  estate  appear  by  guardian,  75. 

interest  protected  by  court  on  settlement,  151. 
inventory  ;  taken  and  returned,  when,  42-44. 

compelled,  43. 

must  be  under  oath,  42. 
joint  tenants ;  representatives  hold  as,  166. 
judgment  against  estate;  execution  issued,  when,  162. 

gives  no  preference,  55,  95. 

lien  from  what  time,  162. 

not  affected  by  after-born  child,  142. 
jurisdiction,  what  clerk  has,  over,  16,  17. 
land  sold  by  decedent,  who  makes  deed,  83. 
legacies;  abatement  of,  to  provide  for  after-born  child,  139,  141. 

ordered  paid  within  two  years,  when,  155. 
letters  of ;  administering  without,  penalty  for,  1. 

application  for,  26. 
clerk's  duty,  26. 

contested,  how,  27. 

fee  of  clerk  for  Issuing,  2773. 

form  of,  36. 

granted  on  copy  of  destroyed  will,  when,  330. 

granted  in  other  states,  how  authenticated.  1618. 

no  applicant  for,  who  entitled,  18,  20. 

order  in  which  persons  entitled  to,  3. 

revoked,  31,  34,  37,  38,  43. 
granted  to  another,  35. 

pending  litigation,  action  continues,  when,  165. 
when  will  subsequently  found,  37. 

when  those  disqualified  entitled  to,  6. 

when  will  annexed,  issued  when,  14. 

who  disqualified  for,  5,  7. 

who  entitled  to,  3. 
limitations,  statute  of ;  bars  action  by  creditor,  41,  93,  94,  867. 

bars  administration  of  estate,  367. 
representative  from  suing,  367. 
lineal  descendants  represent  ancestors,  1556  (r.  3). 

mortgagee's  or  trustee's  representative  may  renounce  trust ;  effect,  1038. 
mortgages ;  power  of  sale  in,  executed  by  representative,  1031. 
necessity  for,  1,  2. 

negotiable  instrument  presented  to  representative  when  payer  dead,  2225. 
none  after  ten  years  from  death  of  decedent.  367. 
order  in  which  persons  entitled  to  administer,  3. 
partner,  surviving,  duty  of,  2540-2546.     See  Partnership, 
payment  of  debts  by  representative,  order  of,  87. 
penalty  for  administering  without  letters,  1. 
personal  estate,  46,  47. 

action  to  recover,  159,  160. 

fraudulent  conveyance  of,  attacked,  50. 

sale  of,  61-67. 
petition  for  sale  of  land  for  assets,  77-80. 

protest  of  bill  or  note  of  decedent ;  notice  to  representative,  2248. 
public  administrator,  18-21.    See  Administrator,  Public, 
real  estate,  49. 

action  to  recover.  159.  160. 

contracted  by  decedent,  who  makes  deed.  83. 

conveyed  to  representative,  power  of  successor,  71. 

devised  to  be  sold,  who  may  sell,  82. 
how  sale  made,  84. 

fraudulent  conveyance  of,  attacked,  72,  73. 

orders,  old,  for  sale  of:  proceeding  completed  how.  171. 

oyster  beds  of  decedent  treated  as,  2.3S0. 

1149 


INDEX. 

A  DMI NI STI4  ATION— co/i  ? /« 1(6(7  ; 
real  estate — continued. 

sales  of,  for  assets,  68-86,  130,  131. 
surplus  proceeds  from,  to  wliom  paid,  49. 
undevised  first.  69. 
what  iiroceeds  of  i^ersonalty  are,  48. 
who  makes  title,  80. 
record  of  appointment  of  representatives  kept  by  clerk.  915   (10). 
revocation  of  letters  of,  31.  34,  3.5,  37,  .38. 
renunciation  of  right  to.  10,  11,  12. 
deemed,  12. 
required,  11. 
right  to  administer,  who  has,  3. 
husband  on  wife's  estate,  3,  4. 

forfeited.  7,  9,  2111. 
wife  on  husband's  estate.  3. 
forfeited,  7,  8,  2110. 
sale;  of  evidences  of  debt,  how  made,  67. 
personalty,  61-67. 

by  collector  on  order,  61. 

representative,  62. 
hours  of,  60. 

manner  of  making,  63,  64,  66. 
notice  of,  advertised,  63. 
on  credit,  63-65. 
report  to  clerk,  64. 

what  kind  privately ;  order  required,  6-1. 
realty,  68-86. 

advertised,  how,  81. 

devised  specifically ;  devisee's  rights.  8(i. 

to  be  sold ;  how  made,  84. 
for  assets,  representative  may  bid.  8.5. 
old  orders  for.  completed,  171. 
petition  for,  C8,  74-77. 
undevised  first.  69. 

when  personalty  can  not  pay  debts,  68. 
settlement  of  estate.  144-155. 

ab.sent  legatee  or  distributee,  share  paid  clerk,  1.51. 
actions  pending  and  debts  not  due  provided  for.  147.  148. 
advancements  nmst  be  considered  in,  1556  (r.  2). 
allowance  to  widow  credited  in,  3102. 
commissions  allowed  representative.  149. 
distributive  shares  and  legacies  paid  clerk.  145,  146. 
fees  allowed  clerk,  2773. 

infant  without  guardian  protected  by  clerk,  151. 
moneys  remaining  unclaimed,  go  to  university,  153. 
part.v  not  heard  from  in  seven  years,  who  takes,  151. 
petition  for,  1.50. 

parties  to.  154. 
record  of,  kept  by  clerk,  915   (13). 
required  at  end  of  two  years.  147. 
vouchers  presumptive  evidence  of  disbursement.  101. 
taxes  of  estate;  iienalty  for  representative  failing  to  pay.  "2862. 
time  enlarged  in  which  I'ojiresentative  must  act,  169. 
trust  deeds,  power  of  sale  in,  executed  by  representative.  1031. 
under  act  of  1868-9.  validated.  108. 
university  gets  unclaimed  portion.  1.53. 
waste  of  estate;  representative  liable  for,  167. 
wife's  right  to  administer  on  husband's  estate  forfeited,  7.  S.  2110. 
widow's  year's  allowance;  allotted  how,  .3096-3102. 

crops  used  imtil  allotted,  1. 
will  annexed,  letters  of  administration  with,  14. 

1150 


INDEX. 

ADMINISTRATOR: 

action  against,  personally,  on  bond,  30,  31. 
administration  of  estates.     See  Administration. 
.•ippointmiMit.     See  mider  this  bead,  Letters  of,  etc. 

cross-index  of.  kept  by  clerk,  915  (IS), 
bond  of,  319. 

action  on,  30,  31. 

barred  as  to  administrator,  wben,  393. 
sureties,  when,  39.5   (G). 

expense  of,  when  surety  company  gives,  who  pays,  277. 

failure  to  give  new,  letters  revoked,  34,  35. 

mortgage  in  lieu  of,  265. 

renewal  or  increase  of,  required,  32. 

surety  company  may  give,  273. 

expense  of,  paid  by  estate,  277. 

surety  on,  released  how,  33. 
compensation  of,  149. 

cum  testamento  annexo.     See  Administrator  Cum  Testamento  Annexo. 
de  bonis  non,  a  party  to  proceeding  for  final  settlement,  when,  154. 
duties  of,  as  to  administering.     See  Administration, 
estate  held  by,  100. 
letters  of  administration ;  application  for,  26. 

contest  over  issuance  of,  27. 

form  of,  26.  36. 

husband's  right  to,  on  wife's  estate,  3,  4. 
forfeited  how,  7,  9,  2111. 

order  in  which  persons  entitled,  3,  4.  0. 

penalty  for  acting  without,  1. 

renunciation  of  right  to;  required,  wben,  11. 
deemed,  12. 

revocation  of,  upon — 

default  or  disqualitication,  38,  43. 

failure  to  renew  bond,  34. 

will  being  subsequently  found,  37. 

wife's  right  to,  on  husband's  estate.  3. 
forfeited  when,  7,  8,  2110. 

what  clerk  issues,  16.  17. 

who  disqualified  for.  5,  7-9,  15. 
public.  See  Administrator,  Public, 
liability  of,  for — 

administering  without  letters,  1. 

conversion,  167. 

costs,  when,  97,  115.  1277. 

delay  in  collecting,  05. 

embezzling  funds  or  other  property,  3406. 

intestate's  debts,  when.  974. 

.judgment  fixing  him  with  assets,  12.5. 

selling  personalty  out  of  time  prescribed,  05. 

waste  of  estate,  167. 
oath  of.  necessary,  29,  2360. 
renunciation  of  right  to  administer.  11,  12. 
revocation  of  letters  of  administration,  34,  37,  S8,  43. 
successor  appointed  upon  revocation  of  letters,  3.5. 

brings  suit  on  bond  of  predecessor,  when,  31. 
with  will  annexed.     See  Administrator  Cum  Testamento  Annexo. 

ADMINISTRATOR  CUM  TESTAMENTO  ANNEXO: 
appointment;  qualifications  for,  15. 

made,  when.  14,  28. 
caveat  to  will  filed ;  duty  of,  3137. 
letters  of  administration  revoked,  37,  38. 

1151 


INDEX. 

ADMINISTRATOR  CUM  TESTAMENTO  ANNEXO-  con? iii »«■(?. • 
liabilities  and  duties,  3146.     See  Administration, 
must  observe  tbe  will,  3146. 
party  to  proceeding  for  final  settlement,  when.  154. 

ADMINISTRATOR,  PUBLIC: 
appointment,  IS. 
bond  of,  19,  320,  205,  273,  277. 
letters  of  administration ;  when  entitled  to.  20. 
oath  of.  19,  2360. 
powers,  duties,  etc.,  21 
term  e.xpiring,  effect  of,  on  estate  in  hand,  21. 

ADMISSIONS : 

attorney's,  as  to  fraud  against  state,  not  competent,  when,  1620. 
divorce ;  admissions  of  adultery  not  competent  In  action  for.  1.564. 
fornication  and  adultery ;  one  party  can  not  bind  another  by,  3350. 
gambling ;  witness  for  state  admitting,  pardoned,  1637. 
genuineness  of  paper  writings  established  by,  how,  1658. 
lynching:  witness  for  state  admitting,  pardoned,  16:m'>i. 
partner's,  after  dissolution,  effect,  372. 

ADOPTION  OF  MINOR  CHILDREN: 
bond  to  secure  estate  of  child,  178. 
letters  of  adoption ;  effect  of,  177. 

granted,  176. 

order  granting,  recorded,  179. 

revoked,  when,  179. 
parties  to  proceeding  to  adopt,  175. 
petition  for,  contents  of,  174,  177. 

ADULTERATION :     See  Crimes  and  Punishments. 

ADULTERY : 

crime  of  fornication  and  adultery,  defined  and  punished,  3350. 
divorce  for,  1561. 

liusband  guilty  of,  forfeits  rights  in  wife's  estate,  9,  2111. 
widow's  year's  allowance  forfeited  by  her  adultery,  3091. 
wife  guilty,  forfeits  rights  in  husband's  personal  estate.  8.  2110. 
forfeits  dower  right  and  year's  allowance,  2110.  3083,  3091. 

ADVANCEMENTS : 

children  must  account  for,  by  decedent.  133,  1556  (r.  2). 

failing  to  account,  can  not  share  in  final  settlement.  135,  15.56  (r.  2). 
decedent  depositing  property  with  child,  child  must  account,  134. 
estate  of  idiot,  etc.;  surplus  advanced  to  ne.\t  of  kin.  when,  1900.  1907. 
clerk  to  equalize  advancements,  bow,  1903. 

to  take  into  consideration  those  most  needy,  1904. 
withhold  from  those  likely  to  waste,  1905. 
for  what  purpose  and  to  whom  advanced,  1901. 
Insanity  must  be  permanent,  1907. 

person's  mind  restored,  advancements  cease.  1908. 
parties  to  proceeding,  who  are,  1902. 
removal  of  proceeding  to  advance  to  superior  court,  1906. 

ADVANCES  TO  CROPPER  :     See  Agricultural  Lien. 

ADVERSE  POSSESSION: 

color  of  title  with,  gives  ownership,  when,  333.  382.  384. 
deemed  to  be  under  color,  when,  .333. 
does  not  affect  insane  persons  or  Infants,  362. 
11.52 


INDEX. 

ADVERSE  POSSESSION— <-onii»«ef? ; 

easements ;  ownership  of,  never  acquired  by,  388,  389. 

bigbways  never  acquired  by,  389. 

married  woman  affected  by ;  exception,  563. 

possession  generally.     See  Possession. 

railroad  rigbt-of-way  never  acquired  by,  388. 

recovery  of  land  defeated  by,  333,  382,  384. 

seven  years',  under  color,  gives  title,  wben,  382. 

streets  of  towns  never  acquired  by,  389. 

thirty  years',  gives  title,  380,  381. 

twenty-one  years',  with  color,  gives  title,  380,  381. 

twenty  years',  without  color,  gives  title,  when,  384. 

ADVERTISEMENT  :     See  Notice  ;  Publication. 

administrator's,  for  claims  against  estate,  39,  40. 

sale  of  land  for  assets,  81. 
allotment  of  exemptions  at  request  of  debtor,  705. 
corporation  ;  decrease  of  capital  stock,  1164. 
cost  of,  allowed  to  sheriff,  wben,  2777. 
creditors  of  decedent ;  notice  to,  by  clerk,  107,  108. 
crop  sold  after,  when  cropper  abandons  crop,  2050. 
deed  of  trust ;  foreclosure  sale  after,  1042. 
defacing  or  tearing  down  legal  notice,  misdemeanor.  .3710. 
elections ;  notice  of,  2950,  2967. 
entry  of  land,  1708. 

of  oyster  grounds,  2377. 
execution  sale  of  property,  641. 
gates;  application  to  erect,  across  road,  2711. 
guardian  renting  land,  1788. 

lotteries  ;  person  advertising,  misdemeanor,  3725. 
malicious  injury  to  any,  a  misdemeanor ;  proviso,  3709. 
mechanic's  sale  of  personalty  to  satisfy  lien,  2017. 
mortgage  foreclosure  sale,  1040,  1042. 
otRcers'  accounts  and  reports.     See  Publication, 
partnership  dis.solution,  2.5.39. 
process  served  by  publication.     See  Publication, 
restoration  to  citizenship,  petition,  2677. 

sales :  of  property  under  execution,  mortgage,  etc.,  641.  1040,  1042. 
steamboat  owner  advertises  as  to  draw  bridge,  2699. 

luiclaimed  freight,  2637. 
stockholders'  meeting  to  decide  on  dissolution,  1195. 
stray  animals,  by  register  of  deeds,  2833,  2835. 
taxes ;  sheriff's  notice  of  collection  of,  2870. 

sale  for,  2890. 
time  of,  computed  how,  888. 
warehouseman's,  of  sale  for  storage  charges,  3036. 

AFFIDAVIT : 

accompanying  book  account,  1022. 
account  itemized,  verified  by.  1625. 
administration  letters ;  application  for  to  be  by,  26. 
alimony  pendente  lite  secured  by,  how,  1506. 
arrest;  to  obtain  order  for,  in  civil  action,  729. 

counter  affidavit  to  vacate  order,  7.36. 
attachment  proceedings ;  must  show  what,  759. 
bastardy  warrant  issued  on,  252. 
before  whom  made,  925-931. 
certain  affidavits  irregular  validated,  2363. 
claim  and  delivery ;  must  show  what,  791. 
claims  against  decedent's  estate  proven  by,  91. 
clerk's  fee  for  taking,  2773. 

Rev.  Vol.  1—69  1153 


INDEX. 

AFFIDAVIT— co)i(j)i«e(Z; 

commissioner  of  affidavits.     See  Commissioners  of  Affidavits, 
continuance  asked  for  by,  530-532. 

counter  affidavit  filed,  532. 
creditors'  in  proceedings  supplemental  to  execution,  6G8. 
deeds  made  prior  to  January  I,  1855.  probated  by,  981. 
divorce ;  complaint  in  action  for,  accompanied  by,  1563. 
evidence,  when,  3121. 
injunction  granted  on,  when,  810. 
judgment  debtor  arrested  on,  when,  (571. 
lien  for  advances  enforced  by  lienee  filing,  2054. 
mortgage  in  lieu  of  bond  to  be  accompanied  by,  270.. 
oysterman  refused  license  to  plant  unless  files  certain,  2373. 
pleadings  verified  by,  488-493.     See  Verification, 
railroad  directors  must  make,  to  secure  charter,  2549. 
referee  appointed  to  take,  of  person  refusing  to  testify,  875. 
removal  of  causes  by,  425-428,  1455. 
taken  by  whom,  925-931. 
trademark  secured ;  affidavit  necessary,  3014. 
verifying  pleadings  by,  488-493.     See  Verification. 
will  probated  by.  3125. 

AFFIRMATION :     See  Oaths. 

AFTER-BORN  CHILD : 

action  against  decedent's  estate ;  child  may  defend,  when,  142. 

devisee  and  legatee  as  to  creditors  of  estate,  142. 

inherits  how,  1556  (r.  7). 

share  of,  in  ancestor's  estate,  138-141. 

no  petition  for,  duty  of  representative,  143. 
will  not  providing  for,  void  as  to,  3145. 

AGED  AND  INFIRM  :     See  Home  for  Aged  and  Infirm. 

AGENT : 

doing  business  as  trader,  etc.,  without  showing  principal ;  effect,  2118. 
embezzling  property  of  principal,  3325,  3403,  3406.  3408.  3487. 
insurance ;  violating  insurance  law,  3482-3490. 

companies  doing  business  through.     See  Insurance, 
mortgagee  or  trustee  may  appoint,  to  foreclose,  1035. 
must  pay  ta.xes,  when,  2862. 
negotiable  instruments;  signature  to  may  be  made  by,  2168. 

effect  of  signing,  as  agent,  2169. 
by  procuration,  2170. 

negotiating  without  indorsement;  liabilities.  2218. 

notice  of  dishonor  of,  given  by  agent,  2241,  2244.     ' 
process,  of  foreign  corporation  necessary,  1243,  1248. 
railroad,  making  up  passenger  train  wrong;  misdemeanor.  3747. 

AGE  OF  CONSENT: 

marrying  female  imder  14  years,  misdemeanor,  3368. 
rape,  statutory,  3.348. 

AGREED  CASE:     See  Controversy  Without  Action. 

AGREEMENT:     See  Contracts. 

AGRICULTURAL  LIEN : 

advances  made  cropper  a  lien,  when,  20.52,  2053. 

lien  must  be  written  and  recorded,  20.52. 
chattel  mortgage  as  additional  security ;  form  of,  205.5. 

1154 


INDEX. 

AGRICULTURAL  hlE'N— continued: 

cropper  abandoning  crop  ;  remedy,  2056. 
crops  seized  and  sold,  when,  2054. 

contest  over  proceeds,  2054. 
enforced  how,  2054,  2056. 
form  for,  in  certain  counties,  2055. 
landlord  and  laborer  not  affected  by,  1993,  2054. 
lien  of  landlord  takes  precedence  over,  1993. 
mortgagor  in  possession  creates,  how,  2053. 
register  of  deeds  lieeps  record  of,  2057. 

AGRICULTURAL  TENANCIES:     See  Landlord  and  Tenant 

ALCOHOLIC  LIQUORS  :     See  Liquors. 

ALIENS : 

foreign  corporations  may  do  business,  proviso,  1193,  1194. 
may  enter  land,  when,  1692. 

property  rights  of  aliens,  same  as  of  citizens,  182. 
sales  of  property  by  or  to,  validated,  183. 

ALIMONY : 

complaint  in  action  for,  accompanied  by  affidavit,  1563. 
divorce  from  bed  and  board  may  carry,  1565. 

amount  limited  to  one-third  of  income,  1565. 
feme  covert  lunatic  entitled  to,  when,  1895. 
granted  without  divorce,  when,  1567. 
husband  failing  to  support  wife  must  pay,  1567. 
pendente  lite,  granted  when,  1566. 

husband  entitled  to  notice  of,  when,  1566. 
real  estate  granted  as,  writ  of  possession  issued,  1568. 
undertaking  for  costs  not  required  in  action  for,  1558. 
wife  applying  for  proceeds  of  own  labor  before  suing,  1563. 
wife's  affidavit  accompanying  complaint  for,  1563. 

ALMSHOUSE :     See  Home  for  Aged  and  Infirm. 

AMENDMENT  : 

bail  not  discharged  by,  of  process  or  pleading,  757. 
condemnation  proceedings,  at  any  time,  2592. 
corporate  charters  amended,  how,  1248. 
court  proceedings  amended,  when,  507,  512,  513,  1467. 
pleadings  ;  amended  once  as  of  course,  505. 

good  cause  shown,  amendment  allowed,  when,  507,  1468. 

material  variance  between,  and  proof  ground  for  amendment,  515. 

name  of  defendant  inserted  in,  when  learned,  510. 

substantial  amendment  to;  effect  of,  508. 

supplemental ;  allowed,  when.  511. 

variance  between  pleading  and  proof,  amendment.  515,  516. 
process  amended  when,  507,  1467. 
statutes  amended,  construed  how,  2832. 

AMERCEMENT : 

bond  of  officer  liable  to  payment  of,  2815. 

clerk  failing  to  issue  execution  on  judgment  liable  to.  618. 

constable ;  amerced  for  failing  to  endorse  process,  3149. 

failing  to  pay  costs  on  execution  to  clerk.  G40. 

making  no  return  or  false  return,  2817,  3604. 
judgment  nisi  against  officer.  2818. 


INDEX. 

AMERCEMENT— cfw/  tin  tied  : 

sheriff ;  amerced  for  failing  to — 

endorse  process,  3140. 

execute  process,  wlien,  2820. 

furnish  grand  jury  with  names  of  liquor  dealers,  2827. 

make  return  of  proces.s,  2817. 

pay  over  money  collected,  2S21. 
allowing  prisoner  to  escape,  3227. 
farming  out  office,  amerced,  2828. 
making  false  return  of  process,  2817. 
sureties  of,  liable  for  amercements,  281.'5. 

ANIMALS : 

cattle.     See  Live  Stock ;  Quarantine. 

contagious  diseases;  animals  dying  of;  what  done,  3298. 

requirements  of  owners  to  prevent  spread  of,  3295-3297. 
cruelty  to,  3299,  3300-3302.     See  Crimes  and  Punishments, 
deer,  chasing,  with  dogs  in  certain  counties,  34G0. 
dogs.     See  Dogs. 

di'iving  another's  stock  out  of  range,  3314. 
estrays ;  person  failing  to  comply  with  law  of,  3306. 
hogs.     See  Hogs, 
horses;  larceny  of,  3505,  3509. 

allowing  stone-horse  to  run  at  large,  3323. 

exhibiting  stud  or  jack  near  religious  meeting,  3705. 
injury  to,  3313,  3314,  3504. 

killing  stock  in  range  and  not  showing  hide,  etc..  3315. 
larceny  of,  3501,  3504-3506.    See  Larceny, 
live  stock.     See  Live  Stock. 

mismarkiug.  for  fraudulent  purpose,  misdemeanor,  3317. 
pedigree  of  breeding,  falsely  represented,  misdemeanor,  3307. 
poisoning,  by  leaving  certain  herbs  exposed,  misdemeanor,  3318. 
railroads  failing  to  construct  cattle-guards,  misdemeanor,  3753. 
registration  of  high-bred  live  stock  procured  by  fraud,  misdemeanor,  3308. 
selling  meat  of  diseased,  misdemeanor,  3442. 
sold  by  game  warden  ;  purchaser's  rights,  1870. 
stock  law.     See  Stock  Law. 
strays,  2833-2835.     See  Strays. 
tolling  stock  into  stock  law  territorj'.  .3.309. 
turning  out  of  stock  law  territory,  3322. 
quarantine  of  live  stock.     See  Quarantine. 

ANNUITY  : 

present  cash  value  of,  what  is,  1627. 

ANSWER  : 

administrator's  petition  to  sell  land ;  heirs  and  devisees  riiake,  74,  79. 

amendments  of.     See  Amendment. 

bond  of  defendant  before  filing,  when  required,  453,  454. 

condemnation  proceedings ;  defendant's,  2584. 

contains  what,  477,  470.  481-483. 

contested  election  case;  undertaking  re<iuired  before,  835. 

counterclaim  set  up  by,  479,  481. 

defenses  set  up  by,  may  be  several,  482. 

demurrer  to  answer,  485. 

filed  when,  47.3. 

gaming  contract  sued  on;  invalidity  pleaded  by,  1691. 

guardian  ad  litem  files,  when.  407. 

joint  debtor  summoned  after  judgment,  files,  4.')7. 

judgment  for  want  of,  when,  5.56. 

frivolous  answer,  plaintiff  given  judgment,  560. 

11. lO 


INDEX. 

.  \  N  S  WER— ewi  t  inue'J  : 

justice's  court ;  auswer  in,  contains  wbat  1-160. 

libel  and  slander ;  answer  may  contain  wbat,  502. 

limitations,  statute  of,  pleaded  by,  300. 

new  matter  in,  taken  as  true,  when,  503. 

objection  not  taken  by  demurrer  or,  deemed  waived,  478. 

satisfaction  of  bond  or  judgment  pleaded  by,  1522. 

sbam,  stricken  out,  472. 

statute  of  limitations  set  up  by,  360. 

time  for  filing,  473. 

waiver  of  objection  not  taken  by  demurrer  or,  478. 

A.\TI-JUG  LAW: 

place  of  delivery  of  liquors,  place  of  sale,  2080. 

selling  liquors  in  prohibition  territory,  misdemeanor,  3518. 

unlawfully  procuring  liquor  for  another,  misdemeanor,  3534. 

APPEAL,  CIVIL  ACTION  : 

action  dismissed  on  demurrer  to  evidence,  plaintiff  takes,  539. 
administration  accounting  compelled ;  order  appealed  from,  118,  119. 
appellate  court's  judgment  as  to  cost,   1279-1282. 
ease  on  appeal  to  supreme  court,  591. 

exceptions  part  of,  554. 

how  stated  and  settled,  591. 

judge  failing  to  settle,  penalty,  591. 

transcript  of  record  contains,  592. 
certiorari,  writ  of,  as  substitute  for,  584. 
clerk ;  appeal  from,  to  judge  on  issue  of  law,  586,  610-613. 

attorney  entitled  to  be  heard,  613. 
condemnation  proceedings ;  appeal  from  clerk,  2587. 
contempt ;  no  appeal  in  certain  cases  of,  939. 
contested  election  ;  defendant  appealing ;  stay  bond,  842. 
conveyance  executed  to  stay  proceedings  on.  when,  600. 
corporation  commission  ;  appeal  from,  to  superior  court,  1074-1076. 

superior  court's  decision  on,  to  supreme  court,  1077. 
judgment  finally  affirmed,  enforced  how,  1080. 
costs  on,  1279-1282.     See  Costs. 

when  state  appeals  to  U.  S.  courts,  1263. 
county  commissioners'  decision  as  to  roads,  etc.,  appealed  from,  2683,  2690. 
defendant's  from  justice's  judgment,  cost  bond  given,  when,  606. 
dividing  fence :  valuation  of,  appealed  form,  1666. 
dismissal  of;  for  lack  of  undertaking,  .593,  596. 

for  failure  to  prosecute,  when,  1543. 
docketed  by  clerk,  591. 

ejectment  of  tenant  ordered ;  tenant  takes.  2008. 
execution  stayed  pending ;  how,  598-603.     See  Execution. 

clerk  enters  on  docket,  621. 

perishable  property  sold,  598. 

property  litigated  over  deposited  in  court,  599,  600. 
exemptions  allotted  by  appraisers,  appealed  from,  691. 
in  forma  pauperis,  597. 

insane  person's  estate  advanced  to  next  of  kin ;  appeal.  1906. 
interlocutory  orders  ;  reviewed  on,  when,  589. 

appeal  from,  alone,  no  judgment;  opinion  certified,  1544. 
judge's  findings  appealed  from.  542. 
judgment  of  supreme  court  on,  605. 

as  to  costs,  1279-1282. 
justice's  judgment  appealed  from  ;  trial  de  novo,  607,  1491. 

dismissal,  when,  607. 

does  not  stay  execution.  1490. 

heard  on  original  papers,  609. 

1157 


INDEX. 

APPEAL,  CIVIL  ACTlOy— continued: 

justice's  judguieut  aiipealed  from — continued. 

notice  of,  1491,  1492. 

return  of  notice  of  appeal,  1493,  1494. 

reversed,  property  restored,  1495. 

wheu  and  how  taken,  1491. 
motion  to  dismiss,  for  defective  undertaking ;  notice,  59G. 
nonsuit  under  Hinsdale  act,  plaintiff  takes,  539. 
notice  of,  to  adverse  party,  when  required,  591,  1491,  1492. 
perishable  property  sold  pending,  598. 
perpetuating  burnt  and  lost  records,  339. 
processioning  proceedings ;  notice  of,  326,  328. 
property  litigated  over  deposited  in  court  pending,  599.  000. 
provisional  remedies ;  appeals  from  order  allowing,  have  preference,  874. 
road  supervisor's  decisions  appealed  from,  2683,  2686,  2688. 
recordari,  writ  of,  as  substitute  for,  584. 
special  proceedings ;  appeal  from  clerk  to  judge,  588,  610-613. 
state  takes,  to  U.  S.  courts ;  cost,  1263. 
stay  of  execution  pending,  598-603.     See  Execution, 
supersedeas,  writ  of,  issued  when,  584. 
supreme  court  judgment  on  appeal,  605. 

certificate  of,  received  by  superior  court,  procedure,  1526. 

enforced  by  execution,  when,  1542. 
transcript  of  record  sent  supreme  court,  592. 
trial  by  court ;  judge's  findings  appealed  from,  542. 
undertaking  for  costs  of,  593-595,  601,  603,  605.     See  Undertaking. 

filed  in  supreme  court,  when,  593. 
what  judgments  subject  to,  587. 
who  may,  585. 

widow's  year's  allowance;  allotment  appealed  from,  3100,  3101. 
writs  of  error  abolished,  583. 

APPEAL,  CRIMINAL  ACTION : 

justice's  court  to  superior  court — 

accused  takes ;  justice  recognizes  witnesses,  3274. 

defeudant  in  peace  warrant  may  take,  3173. 

justices  send  up  papers  to  clerk,  3275. 

trial  de  novo  in  superior  court,  3274. 
superior  court  to  supreme  court — 

bail  allowed  pending,  when,  3279,  3280. 

case  on  appeal,  settled,  as  in  civil  cases,  3277. 

defendant  takes,  how,  3277. 

execution  stayed  pending,  3281. 

in  forma  pauperis,  3278. 

judgment  for  fines ;  execution  stayed  how,  pending,  3282. 

state  can  take,  when,  3276. 

supreme  court  judgment  certified  down;  what  done,  3283. 

APPEARANCE : 

attorney  entering,  to  produce  authority,  when,  213. 

bond  for ;  mortgage  given  in  lieu  of,  266,  1849,  2829,  3207,  3212. 

debtor's,  in  arrest  and  bail,  deemed,  when,  1926. 

infants  appear  by  guardian  or  next  friend,  405,  406. 

insolvent  debtor's  bond  for,  given  when,  19.30. 

party  ma.v  make,  in  person  or  by  attorney,  356,  3135. 

personal  representative;  when  more  than  one,  one  binds  all  by,  161, 

voluntary,  by  defendant,  no  summons  necessary,  447. 

APPRAISERS : 

conspiracy  to  overvalue  or  undervalue,  misdemeanor,  3585,  3586. 

conspirator  liable  civilly  to  one  injured,  690. 
damages  appraised  by  commissioners  and  jurors.     See  Condemnation  Pro- 
ceedings ;   Damages ;  Roads. 
1158 


INDEX. 

APPRAISERS— co«<Mi«e(i; 

homestead  allotted  by,  687-689,  693,  694.     See  Homestead. 

form  of  return  of  appraisers,  709. 
partuersbip  property  appraised  by ;  surviving  partner  buying,  2545. 
personal  iiroperty  exemption  allotted  by,  695-697,  704-708. 

form  of  return  of  appraisers,  709. 

APPRENTICE  : 

age  at  which  indigent  children  apprenticed,  190    (6). 
apprentice  to  learn  trade  signs  indenture,  202. 
children,  who  may  be  apprenticed  by  clerk,  190. 

who  may  be  by  parent,  or  guardian,  201. 
clerk,  duty  of,  when  employer  applies  for,  186. 

determine  incapacity,  drunkenness,  etc.,  of  parent,  185. 

directs  disposition  of  wages,  188. 

power  of,  to  bind  out,  184-189. 
compelled  to  serve ;   imprisoned  for  failure,   192,  205. 
compensation  In  wages,  board,  education,  etc.,  194. 
discharged,  may  be  reapprenticed,  187,  196. 
employer ;  charged  with  cruelty,  etc.,  clerk's  duty,  191. 

liable,  if  fails  to  perform  indenture,  206. 

makes  annual  and  final  reports  to  clerk,  195. 

must  not  remove  apprentice  from  state,  196. 

one  who  is  a  tradesman  preferred,  186. 

provides  what  for  apprentice.  194. 

removing  from  state,  how  released,  196. 
enticing,  away  from  employer,  penalty,  193. 
guardian  for,  appointed  when,  189. 
harboring  wayward  apprentices;  penalty,  193. 
illegitimate  children  bound,  how,  to  learn  trade,  201. 
indenture ;  action  on  by  apprentice.  199,  206. 

must  be  brought  in  two  years,  199. 

cancelled  by  clerk,  191,  196. 

contains  what,  204. 

drawn  in  whose  name,  197,  201. 

modified  when,  187. 

orphan  asylum  makes,  when,  203. 

registration  necessary  to  validity,  200. 

signed  by  child,  when,  202. 
mother's  power  to  apprentice  her  child,  201. 

power  ceases  when  she  marries.  .201. 
orphanage  may  apprentice  orphans,  203. 
power  of  clerk  to  bind  out  what  minors,  184-189. 
proceedings  to  apprentice  indigent  child  begun  how,  184. 

citizens  make  complaint,  184. 

employer  applies  for  apprentice,  186. 
record  of  apprentices  kept  by  clerk,  915   (10). 
term  of  apprenticeship  limited,  198. 
wages  of;  amounting  to  .$100,  guardian  appointed,  189. 

disposed  of  by  order  of  clerk,  188. 
white  child  bound  only  to  white  person.  186. 
who  may  be  apprenticed  by  parent  or  guardian,  201. 

by  clerk,  190. 

ARBITRATION  AND  AWARD : 

apprentice  and  employer  submit  to,  when,  204   (6). 

controversies  with  corporations  submitted  to  corporation  commission.  1073. 

award  docketed  as  judgment,  1073. 

notice  issued  to  parties,  1073. 

parties  may  appear,  how,  107.3. 
decedent's  estate,  claim  against,  settled  by,  92. 

1159 


INDEX. 

ARBITKATION  xVND  AWAliB—contiiiiicd: 

oyster  limd  entered,  etc.,  after  submission  to,  2377. 

reference  by  the  court,  518-525.     See  Reference. 

sluiceways  in  dams ;  injury  to  waterpower  by,  submitted  to,  how,  2462. 

ARREST  AND  BAIL,  CIVIL  ACTION : 

action  on  bail  bond  liarred  in  three  years,  3'.)5   (7). 
actions  to  which  chapter  on,  applicable.  72G,  727. 
affidavit  In  justice's  court  to  obtain  order  for,  149G   (17). 
arrest  made  in  what  cases,  025,  G71,  727. 
ball ;  deposit  in  lieu  of,  744. 

returned  to  plaintiff,  when,  747. 
sheriff's  duty,  745. 

adjudged  sufficient,  sheriff  exonerated,  743. 

amendment  of  process  does  not  discharge,  757. 

cost  paid  by.  when,  750. 

exonerated,  when  and  how,  751. 

justification  of;  notice  of,  741. 
procedure,  742,  743. 

liable  to  sheriff  when,  755. 

may  arrest  defendant,  753. 

new  ;  when  old  iusutlicient,  741. 

proceeded  against,  on  motion,  754. 

qualitieation  of,  740. 

sheriff  liable  as,  when  defendant  escapes,  749. 

surrenders  defendant,  752. 
bond  of  prisoner  to  keep  bounds  violated ;  procedure,  1341. 
contested  election  ;  when  defendant  arrested,  831. 
cost  paid  by  bail,  when,  750. 

death  or  imprisonment  of  defendant  discharges  bail,  751. 
debtor  arrested  ;  after  execution,  625,  071. 

by  bail,  753. 
defendant  discharged  upon  giving  bail,  737-743,  748. 

depositing  money  in  lieu  of.  744-747. 
deposit  in  lieu  of  bail,  737,  744-747. 

apiilied  to  plaintiffs  judgment,  when,  747. 

bail  may  be  substituted  for,  740. 

certificate  of,  given  defendant,  744. 

paid  into  court  by  sheriff,  745. 

sheriff  not  paying,  procedure,  745. 
escape  of  prisoner :  sheriff  liable,  2823. 
exempt  from  arrest ;  who  is.  1044,  1979. 
fees  for  executing  order.  2777. 
forms  for,  in  justice's  court,  1496  (17-25). 
insolvent  debtors  released,  bow.  1920-1934. 
judgment  debtor  arrested  after  execution,  when.  02.5. 
order  of  arrest ;  copy  delivered  to  defendant,  732. 

executed  bow  and  when,  732,  733. 

motion  to  vacate,  procedure  on,  735.  730. 

obtained  how,  729.  730. 

time  when  order  may  issue,  731. 

undertaking  before,  7.30. 

vacated  or  set  aside.  7.34,  735. 

who  issues,  728. 
quo  warranto  proceedings;  defendant  arrested  in,  831. 
sheriff's  duty  in  serving  order  of,  732. 
Sunday,  no  arrest  in  civil  actions  on.  727. 
surrender  of  defendant  by  bail,  751.  7.52. 
undertaking,  plaintiff's,  to  secure  defendant's  arrest.  7.30. 

defendant's,  to  secure  discbarge.  7.38-743. 

deiiosit  in  lieu  of,  737,  744-747. 
women  not  subject  to,  except  for  wilful  inj>u\v.  727. 
1100 


INDEX. 

ARREST,  CRIMINAL  ACTION  : 

aeoused  arrested  without  warrant ;  procedure,  3182. 

auy  oue  may  make,  when,  3170,  3177. 

apprentice  arrested  for  leaving  employer,  192,  205. 

bail  granted  when  and  by  whom,  3207-3213.     See  Bail,  Criminal  Action. 

breach  of  the  peace ;  any  one  present  may  arrest  offender,  3176. 

fee  for  making,  2777. 

felon  concealed  In  house,  duty  of  officer,  3179. 

fugitives  from  justice  arrested,  how,  3183-3189. 

game  wardens  may  arrest  as  constables,  1808. 

house  broken  open  :  by  officer  making  arrest,  when,  3180. 

by  any  one,  to  prevent  a  felony,  3179. 
officer  may ;  without  warrant,  when,  3178. 

break  open  house  in  case  of  felony,  3180. 
oyster  commissioner,  etc.,  may,  without  warrant,  2398. 
person  summoned  to  aid  in  arrest  must  obey,  3181. 

refusing  to  aid,  a  misdemeanor,  3701. 
tramps  arrested  for  certain  offenses,  3738. 
warrant  for ;  not  necessary,  when,  3176-3178. 

arrested  without ;  procedure,  3182. 

ARSON : 

death  the  penalty  for,  3335. 

uninhabited  houses,  crops,  woods,  etc.,  biu-ned.     See  Burnings. 

ASSAULT: 

civil  action  for;  to  whom  costs  allowed,  1264  (4),  1266. 
defendant  convicted  of,  on  indictment  for  felony,  3268. 
election  officers,  assaulting,  a  misdemeanor,  338.5. 
limitation,  statute  of;  bars  civil  action  for,  397. 

bars  criminal  action,  when,  3147. 
pointing  gun  or  pistol  at  another,  unloaded  or  not,  an,  .8622. 
married  woman  assaulted  with  intent  to  carnally  know,  felony,  3625. 
punishment  prescribed  in  all  cases  of,  3620. 
rape;  assault  with  intent  to  commit,  felony,  3638. 
secret,  with  weapon,  by  waylaying,  felony,  3621. 

ASSETS: 

assignee  for  creditors  makes  inventory  of,  968. 
corporate,  distributed  how  on  dissolution,  1207. 
decedent's  estate ;  what  constitutes,  45-59.     See  Administration, 
guardian :  should  exhibit  account  of,  in  three  months,  1802. 
failing  to  do  so,  compelled  by  attachment,  1803. 
new  assets  accounted  for,  when,  1804. 
settlement  of,  must  show  entire  amount,  1S05. 
l^artnership ;  surviving  partner  makes  Inventory  of,  2540. 

ASSIGNMENT  FOR  CREDITORS : 

accounts ;  trustee  must  file  when,  973. 

record  of  trustee's,  kept  by  clerk,  915  (12). 
bond  of  trustee,  969.  970. 

surety  company  may  give,  27.'^. 
cost  charged  to  expense,  277. 
creditors ;  file  claims  with  clerk,  972,  973. 

falsely  swearing  to  account,  guilty  of  misdemeanor,  3617. 
debts  owing  assignor  mature  on  execution  of  deed  of,  007. 
final  settlement  within  twelve  months.  973. 
insolvent  debtor  applies  to  assign  and  not  be  arrested.  1930. 
insolvent  trustee  without  bond,  removed  by  clerk,  969. 

successor  gives  bond.  970. 
inventory  of  assets  filed,  when,  968. 

1161 


INDEX. 

ASSIGNMENT  FOR  CREDITORS— conY/ju/erf; 
preferred  debts,  scliedule  of,  filed,  9G7. 
property ;  uot  to  be  sold  within  what  time,  971. 

perishable,  sold  when,  971. 
schedule  of  preferred  debts  filed,  where  and  when,  9(J7. 
trustee ;  appointed  in  deed  of,  violating  dut.v,  misdemeanor,  3689. 
closes  trust  within  what  time,  973. 
compelled  to  give  bond.  909. 
removed  if  Insolvent,  when,  9G9. 
new  one  appointed,  970. 
gives  bond,  970. 

ATTACHMENT : 

actions  in  which  warrant  may  issue,  758. 
afiidavit  to  obtain  warrant,  759,  700. 

form  of.  in  justice's  court,  1490   (3-5). 
conditional  judgment  against  garnishee,  when,  780.  783. 
corporate  stock  subject  to,  770. 

defendant  recovering  judgment,  property  delivered  to  him,  780. 
discharge  of,  applied  for  by  defendant,  774. 

undertaking  of  defendant  filed,  775. 
garnishee ;  admitting  having  property,  but  surrenders  to  sheriff ;  782. 

conditional  judgment  against,  rendered  when,  780,  783. 
judicial  attachment  issued  for  others,  780. 

denying  having  property  of  or  owing  defendant ;  trial,  781. 

failing  to  appear ;  effect,  780. 

judgment  entered  against,  779,  780,  783,  784. 

order  directing  to  appear  before  justice,  1490  (12). 

property  in  hands  of :  jury  values,  782. 

turned  over  to  sheriff,  garnishee  excused,  782. 

summoned,  779. 

trial,  when  garnishee  denies  having  property,  etc.,  781. 
incorporeal  property ;  warrant  executed  on,  how,  777. 
intervener  in,  may  interplead,  when,  789. 
issuance  of  warrant  of ;  by  whom,  701,  709. 
judgment  in ;  satisfied  how,  784. 

against  garnishee,  779,  780,  783. 
judicial,  from  justice's  court;   form,  1496    (13). 
jurisdiction  in,  709. 
justice's,  levied  on  land,  771. 
levy  of,  on  corporate  stock.  778. 

certificate  of  defendant's  interest  furnished  sheriff,  778. 
Hen  of  attaching  creditor,  from  what  time,  767. 
notes  of  defendant  sued  on,  when.  78.5. 

notice  of  warrant  of  attachment  published,  706,  770,  1496  (16). 
plaintiff  may  sue  on  defendant's  notes,  when,  785. 
plaintiff's  undertaking  in  :  justification  of,  763.  78S. 
property  sold  pendente  lite,  when,  772. 
replevin  of  iiroperty  by  defendant.  77.1-775. 

undertaking  to  secure  writ,  773,  775,  1490  (14),  (15). 
■  return  of  warrant  of,  by  sheriff.  708. 
sate  of  propertj-  attached  pendente  lite,  772. 
summons  in.  served  how.  702.  770. 

taxes;  attachment  and  garnishment  to  collect,  2880,  2881. 
third  person  may  interplead,  how,  780. 
undertaking  of  plaintiff  to  secure  warrant.  76,3. 
form  of,  justices'  courts,  1406  (0). 
Increased  how  and  when.  787. 
sureties  on,  excepted  to.  justify,  when.  788. 
validity  of.  can  not  be  impeached.  704. 

of  defendant,  775. 

1102 


INDEX. 

ATTACHMENT — continued: 

vessel  taken  in,  sold  when,  772. 
warrant ;  granted  by  whom,  761,  769. 
affidavit  to  obtain,  759,  760. 
bond  of  plaintiff  to  obtain,  763,  788. 
contains  what,  765. 
directed  to  whom,  765. 
executed  bow,  767,  770,  771. 
form  of,  in  justice's  court,  1496  (7). 
Issued  when  and  returned  where,  761,  769. 
justice's  publication  t»f  notice  of,  when,  770. 
levied  on  corporate  stock,  778. 

duty  of  corporation  officer,  778. 
Incorporeal  property,  777,  1496  (11). 
laud,  767,  771. 
modified,  when,  787. 

returnable  where  and  when,  761,  768,  769. 
return  of,  by  sheriff,  768,  769. 

indorsement  on  warrant,  form  of,  1496  (8). 
inventory  of  property  attached  to,  1496  (9). 
service  of  warrant  and  summons,  762,  766,  770. 
several  warrants  to  different  counties,  765. 
vacated,  when  undertaking  insufficient,  787. 

when  defendant  gives  undertaking,  773-775. 
who  grants,  761,  769.  

ATTEMPT  TO  COMMIT  CRIME :     See  Crimes  and  Punishments. 

ATTORNEY  AT  LA-W : 

accused  person  entitled  to,  to  make  defense,  3150. 

acting  as,  without  license,  punished  as  for  contempt,  944  (3). 

action  against ;  for  fraud,  215. 

by  client  for  costs,  when,  214. 
,        allowance  to,  by  court,  for  defending,  when,  2592. 
appearance  of,  for  client  in  courts,  356. 
appointed  by  court  as  counsel  for  pauper,  452. 

as  counsel  for  unknown  party,  2592. 
argument  of,  before  jury,  controlled  by  court,  216. 
clerks,  justices,  etc.,  can  not  practice  law,  3641. 
complaint  not  filed  by ;   liable  for  costs,  214. 
debarred  ;  for  crime,  211. 

for  failure  to  pay  over  money  collected,  212. 
procedure,  212. 
examination  for  license  by  supreme  court,  207. 

conditions  precedent  to,  208,  210. 
failing  to  perform  duty,  punished  as  contempt,  944. 
failing  to  account  to  client :  debarred,  212. 
fraud  practiced  by,  subjects  him  to  double  damages.  215. 
justices  can  not  practice  law,  3641. 
licensed  by  supreme  court,  207. 

fee  for  license,  208. 
misconduct  of,  in  court,  punished  as  for  contempt,  944. 
oath  of,  taken  in  open  court,  209,  2360. 
party  may  appear  by.  356. 

parties  unknowTi  or  nonresident  protected  by,  how,  2592. 
persons  disqualified  to  practice  law,  210. 
relation  of.  to  client,  213-215. 

authority  filed,  213. 
testimony  of,  where  client  defrauded  state,  1620. 
violation  of  duty  of,  in  court,  punished  as  for  contempt,  944. 


1163 


INDEX. 

ATTORNEY  GENEUAL :    See  Volume  II. 
clerk  provided  for,  2746. 
oompeusatiou  of,  1084,  1092,  2746,  2747. 

couteiupt  proceedings ;  attorney  general  appears  for  court,  939. 
contested  election  case ;  duty  of,  in,  827,  828. 
corporation  commission  represented  by,  wben,  1110. 
corporations ;  duty  as  to,  1152,  1198,  1242,  124C. 
criminal  statistics  forwarded  by  clerk  to,  917. 
duty  of;  to  appear  for  corporation  commission,  wbeu,  1110. 
to  approve  grants,  etc.,  to  oyster  grouuds,  2.382. 
prosecute  actions  against  corporations  for — 
dissolution,  when,  1198. 

failing  to  display  name  at  office  door,  1242. 
domesticate,  1194. 
make  annual  statement,  1152. 
organize  or  act,  124G. 
forfeiture  of  corporate  franchise,  1246. 
prosecute  railroad,  on  bond  staying  decision  of  corporation  commis- 
sion, 1084. 
for  violating  rules  of  corporation  commission,  1092. 
vacate  and  annul  land  gi-ants,  1750. 
failing  to  attend  supreme  court,  substitute  appointed,  1551. 
foreign  corporation  failing  to  domesticate,  duty  of.  1194. 
gi-ants ;  land,  vacated  and  annulled  by,  1750. 

oyster  grounds,  form  of,  approved  by,  2382. 
leave  to  bring  action  for  usurping  office  granted  by,  828. 
oath  of,  2300. 

oyster  grants  approved  by,  2382. 
quo  warranto  proceedings,  826-845.     See  Quo  Warranto. 

action  in  nature  of  brought  by,  when,  827. 
railroad  prosecuted  by ;  on  stay  bond,  1084. 

for  violating  rules  of  corporation  commission,  1092. 
granting  special  privileges,  etc.,  2503. 
supreme  court  appoints  substitute  for,  when,  1551. 

ATTORNEY,  POWER  OP  :     See  Power  of  Attorney. 

ATTORNMENT : 

contracts  concerning  land  registered,  good  without.  079. 
conveyance  of  rents,  remainders,  etc.,  complete  without,  947. 

holders  of  particular  estates  without  notice  not  prejudiced,  947. 

AUCTIONEERS: 

account  semi-annually  to  clerk,  218. 
acting  without  license,  penalty,  219. 
appointment  of,  217. 
bond  of.  217. 
commissions  allowed,  221. 

portion  going  to  town,  221. 
duties  of,  218. 

fees  of.  for  selling  tobacco,  3042. 
licensed  by  county  commissioners,  1318   (20). 

AUDUBON  SOCIETY: 

bird  and  game  fund  supervised  by,  1871. 

certificate  to  take  eggs,  birds,  etc.,  granted  to  scientific  men,  1866. 

void  when  birds,  etc.,  taken  wrongfully,  l.S(;(i. 
game  wardens  appointed  on  recommendation  of,  1867. 
hunting  laws  executed  by.     See  Hunting. 
Incorporated,  1862. 
names  of  incorporators,  1862. 

1164 


INDEX. 

AUDUBON  SOCIETY— cojiimwerf; 
objects  for  which  created,  1864. 
officers  of,  1863. 
powers  of,  generally,  1862,  1864-1866.     See  Hunting. 

approve  form  of  license  to  nonresident  hunters,  1872. 

furnish  clerks  with  blanks  required,  1865. 

grant  certificates  to  take  birds,  eggs,  nests,  1866. 

provide  for  execution  of  the  game  laws,  1864.     See  Hunting. 

purchase  and  hold  land,  1862. 

recommend  to  governor  game  wardens,  etc.,  1867. 

revoke  license  to  nonresident  hunters,  1872. 
property  of,  exempt  from  taxation,  1862. 
treasurer  of,  appointed  on  recommendation  of,  1867. 

AUTHENTICATION  OP  RECORDS  AND  PAPERS:     See  Volume  II,  .\pp. 
deeds  made  iu  other  states,  1619. 

letters  testamentary  or  administration  in  other  states,  1618. 
official  writings  of  state  courts  or  departments,  1616. 
public  records  of  other  states  or  United  States,  1617. 
wills  made  and  probated  iu  other  states,  1619,  3130,  3133. 

AUTOMOBILES  : 

running,  at  unlawful  rate  of  speed,  misdemeanor,  3793. 

BAIL,  CIVIL  xVCTION:     See  Arrest  and  Bail,  Civil  Action.- 

BAIL,  CRIMINAL  ACTION: 

accused ;  bound  to  peace ;  failing  to  keep,  forfeits.  3214. 

convicted  of  certain  offenses,  bail  forfeited,  3215. 
appeal  to  supreme  court  pending,  defendant  allowed,  3279.  3280. 
continuance  granted  by  justice,  defendant  allowed,  3213. 
execution  not  to  issue  on  judgment  nisi  on,  3217. 
filed  with  clerk,  3211,  3212. 
forfeited ;  deemed,  when,  3215. 

bail  may  surrender  principal  before  execution  on,  3226. 
can  plead  any  defense  principal  might.  3229. 

execution  not  to  issue  on  judgment  nisi  without  notice,  3217. 

judge  may  remit,  when,  3220. 

clerk  remits  if  money  collected.  3221. 
treasurer  remits  if  paid  over  to  him,  3222. 

judgment  nisi  in  justice's  court,  how  rendered,  3223. 
final,  when  rendered,  .3224,  3225. 

notice  of  judgment  nisi,  what  to  contain,  3218. 

solicitor  prosecutes  to  collection,  3216. 
judgment  nisi  in  justice's  court  on  forfeited  bail,  3223. 

final,  when,  3224,  3225. 
justice  granting  bail,  certifies  on  warrant,  etc.,  3212. 
mortgages  given  in  lieu  of,  266. 
notice  of  judgment  nisi  on  forfeited,  3218. 

executed,  how,  3219. 
principal :  may  be  arrested  and  surrendered  by.  3227. 

may  give  other  bail,  3227. 

sheriff's  liability  for  release,  .3227. 
prisoner  allowed,   when,"  1849.  3207.  3212. 
recognizance  deemed  bi-oken,  when.  3215. 
remittance  of  forfeited,  when.  3220-.3222. 
sheriff :  may  take,  but  not  become.  3208,  3228. 

makes  recognizance  p.iyable  to  himself,  2829. 

returns  recognizance  to  clerk,  3208,  3212. 
solicitor  prosecutes  forfeited  recognizance,  3216. 
who  may  take,  after  defendant  committed.  3210.  ,'5228. 

before  defendant  committed,  3208,  3209. 

1165 


INDEX. 

BANK  EXAMINERS: 

accepting  bribe,  felony,  3324. 

appointed  by  corporation  commission,  24G. 

compensation  of,  249.  2755. 

expenses  of,  in  malting  bank  examination,  who  pays,  249. 

powers  of,  generally,  to  examine  banking  institutions,  247,  249. 

to  make  arrests,  when,  251. 

take  possession  of  bank,  when,  2.50. 
reports  of,  to  corporation  commission,  when,  248,  250,  251. 

making  false  report,  felony,  3324. 
special  reports  made,  when,  243. 

BANKING : 

bank-notes,  etc.,  counterfeiting,  etc.    See  Bank-Notes, 
banks ;  incorporation,  powers,  etc.     See  Banks, 
bills,  notes,  etc.     See  Negotiable  Instruments, 
check  ;  certified  by  bank  an  acceptance,  2337. 

no  assignment  of  funds  in  bank,  2339. 
corporation  created  under  the  general  law  can  not  do,  1134. 
limitation,  statute  of,  no  bar  to  action  on  bank-notes,  377. 

BANK-NOTES  : 

action  on,  not  barred  by  statute  of  limitations,  377. 
connecting  parts  of  two  or  more,  together,  a  felony,  3420. 
described  in  indictment  for  larceny  of,  3251. 
forging,  or  other  banlv  securities,  a  felony,  3419. 

BANKRUPT : 

debt  of,  revived  only  by  written  contract,  978. 


administrator,  etc.,  not  personally  liable  on  stock  of,  when,  237. 
authorized  to  begin  business,  when,  225,  226. 
authority  to  begin,  withheld,  when,  227. 
available  funds  of,  defined,  232. 
bills  or  notes  drawn  to  officers  of,  payable  to,  2202. 
capital  stock ;  stated  in  corporation  certificate,  222. 
amount  required  to  be  paid  before  opening,  224. 

certificate  of  payment  made,  how,  224,  225. 
must  be  paid  in  money,  225. 
cash  of ;  defined,  232. 

certificate  of  Incorporation  ;  signed  and  filed,  222,  223. 
corporation  commission ;  power  of,  over,  240-242. 
reports  to,  required  of  bank  officers,  242-244. 
making  false  report,  felony,  3320. 
penalty  for  officers  failing  to  report.  245. 
corporations;  general  law  of,  applicable  to,  228,  234,  1128-1247. 
creation  of,  222-227. 

can  not  be  created  under  general  corporation  law,  1134. 
capital  stock  ;  amount  paid  in  before  beginning,  224. 
certificate  of  incorporation  contains  what,  222. 
filed  in  secretary  of  state's  office,  223. 

cop.v  filed  with  corporation  commission,  223. 
recorded  by  secretary  of  state,  where,  223. 

clerk  of  court,  where,  223. 
signed  by  incoriiorators  and  probated,  223. 
statement  required  before  authorized  to  open,  225,  226. 
authority  to  open,  withheld,  when,  227. 
dividends ;  restriction  upon  declaring,  2.32. 
embezzlement  of  officers  and  agents  of,  felony,  3325. 
exemption  of  stockholders  from  liability  repealed,  230. 
1 1  (16 


INDEX. 

BANKS — continued: 

fees  for  incorporation,  etc.,  1233-1235,  2773. 

fiduciaries  liolding  stock,  not  personally  liable,  237. 

form  of  certificate  of  incorporation  contains  what,  222. 

general  corporation  law  applicable  to,  when,  228,  234,  1128-1247. 

incorporation  of.     See  under  this  head.  Creation  of,  etc. 

incorporators,  number  of,  222. 

insolvency  of,  discovered,  examiner  takes  charge,  250. 

receiver  appointed,  when,  250. 
liability  of  stockholders  individually,  235-239. 
limitation,  statute  of ;  does  not  bar  action  on  bank-notes,  377. 

bars  action  against  ofiicers,  etc.,  for  penalty,  when,  378. 
loans  of ;  cease  when  reserve  fund  fails,  232,  233. 

definition  of  "money  borrowed,"  233. 

limit  of,  to  one  person,  233. 
married  women's  checks  on,  honored,  when,  2095. 
national ;  reorganizing  into  state  bank,  what  to  do,  230. 
number  of  incorporators  necessary,  222. 
officers ;  embezzling  funds  of ;  felony,  3325. 

making  false  reports  of  entries,  felony,  8326. 

penalty  for  failure  to  make  reports,  245. 
powers  of;  generally,  228. 

to  own  and  purchase  land,  228. 
purchase  its  own  stock,  229. 
reorganize,  230. 

sell  stock  of  delinquent  stockholders,  239. 
real  estate  purchased  and  held  by,  228. 
reports  of,  to  corporation  commission ;  annual,  244. 

quarterly ;  to  be  published,  242. 

special ;  required  when,  243. 

when  bank  fails  to  make,  penalty,  245. 

when  false  report  made,  felony,  3326. 
reorganization  of,  how  accomplished,  230. 
reserved  fund  of ;  required  to  be  held.  231,  232. 

loans  cease  when  reserve  fails,  232. 
stock  of,  bank  may  purchase  its  own,  when,  229. 

assessments  on,  not  paid,  stock  sold,  239. 
stockholders ;  defined,  23.5. 

liability  of,  individually,  235-238. 

list  of,  furnished  corporation  commission,  244. 
tax  and  fees  for  certificates  of  incoi-poration,  1233-1235,  2773. 
transferee  of  stock ;  liability  of,  238. 
unpaid  subscriptions  to  stock ;  share  sold,  239. 

BARBED-WIRE  FENCES: 

cutting  or  destroying,  a  misdemeanor,  3413. 

putting  up,  in  certain  counties,  without  plank  on  top,  misdemeanor,  3769. 

BARROOM :    See  Liquors. 

BASTARDY  PROCEEDINGS: 

affidavit  to  obtain  warrant,  252. 

allowance  to  mother,  259. 

appeal  to  supreme  court  in,  255,  257. 

begun  how,  252-2.54. 

bond  required  of  putative  father.  259. 

child ;   legitimated,  how,   263.   264. 

continuance  of.  when  child  unborn,  258. 

costs  in,  253,  254.  2.55. 

fine  of  putative  father,  etc.,  259. 

issues  of  paternity,  253,  254,  259. 

1167 


INDEX. 

BASTARDY  PROCEEDINGS— C&)i?i/n/fr7; 
jurisdiction,  justice  has  exclusive,  252. 
legitiiuiition  of  bastards,  procedure ;  effect,  263,  2G4. 
limitatiou,  statute  of,  bars  proceedings,  260. 
maintenance  of  child,  execution  for,  261. 
putative  father :  warrant  for,  254,  256. 

apprenticed,  when,  202. 

judgment  and  appeal,  254,  255,  257. 

may  be  discharged  from  prison,  when,  1915. 
warrant  issued  on  whose  complaint,  252. 

BATTERY.  ASSAULT  AND :     See  Assault. 

BEQUEST:     See  Wills. 

BESTIALITY : 

crime  against  nature ;  punishment  for,  3349. 
completed  by  penetration  only,  3639. 

BETTERMENTS : 

assessment  of,  how  made  by  jury,  653-657. 

claimed  when  and  how  ;  proceedings,  652. 

claim  for,  by  defendant,  plaintiff  demands  his  interest  valued,  661,  662. 

defendant  evicted  after  plaintiff  relinquishes ;  remedy,  606. 

judgment  for  excess  of.  over  damage,  a  lien,  658. 

life  tenant  paying  judgment  for,  recovers  of  remainderman,  etc.,  659. 

mortgagor  has  no  claim  for,  in  action  by  mortgagee,  660. 

petition  for  value  of,  filed  by  defendant,  652. 

stays  plaintiff's  execution,  652. 
plaintiff  requires  his  estate  in  the  land  to  be  valued,  061. 
plaintiff's  election  that  defendant  take  premises ;  effect,  663. 

defendant  pays  value  of  interest.  004. 

default  in  payment,  land  sold  by  court.  064. 

infant,  etc..  being  plaintiff,  value  deemed  real  estate.  605. 
rents  balanced  by,  when,  056. 
value  of  premises  without,  estimated,  001,  002. 
verdict  of  jury  assessing ;  judgment,  057. 

BIGAMY : 

defense,  former  husband  or  wife  absent  7  years,  etc..  .3301. 
defined,  and  punishment  prescribed,  2083,  3301. 
husband  or  wife  competent  to  prove  marriage,  1030. 
venue  of  action  for,  3361. 

BILLIARD-ROOM  : 

minors  allowed  in,  proprietor  guilty  of  misdemeanor.  3720. 

BILL  OF  EXCHANGE:     See  Negotiable  Instruments. 
action  on.  when  can  be  tried,  484. 
drawn  in  set ;  acceptor  lialile  for  all  he  accepts,  2.331. 

holder  of  one,  whose  title  first  accrues,  owner,  2329. 

indorser  liable  for  what  he  indorses,  2.3.30. 

part  of,  paid  in  due  course,  discharges  whole,  wlien,  2333. 

payment  of  part,  when  acceptance  outstanding,  no  release,  2332. 

BILL  OF  LADING: 

presented  by  consignee  with  amount  of  charges,  freight  delivered,  1111. 
railroad  agent  must  give,  to  shipper,  1111. 


INDEX. 

RILL  OF  PARTICULARS: 

iillowetl  plaiutiff  in  CTimiual  actioDS,  3244. 
juilge  orders,  wUen,  in  civil  actions,  494. 
.justice  orders,  when,  14G9. 

party  refusing  to  give ;  effect,  1469. 

BlltUS: 

same  birds  detined,  1875. 

luiiiting  of.     See  Hunting. 

Uept  for  pets  or  breeding,  1S76. 

protection  of,  by  Audubon  Society-.     See  Audubon  Society. 

shipping,  from  state,  misdemeanor,  .3471. 

or  selling  in  certain  counties,  3472. 
unlawfully  liilled  or  caught,  etc.,  seized  by  warden,  1870. 
sold  how;  purchaser's  rights,  1870. 

BLACKMAIL: 

person  attempting  to  extort  money  or  property  liy  threats,  guilty  of,  .3428. 

BOARDING-HOUSE  KEEPER  :     See  Innkeeper. 

BOARD  OF  AGRICULTURE :     See  Volume  II. 

common  carriers  failing  to  make  to,  statements  as  to  fertilizers,  3819. 
concentrated  feeding  stuff;  selling,  without  filing  samples  with.  .3807. 

liable  to  seizure,  3807. 
cotton-seed  meal ;  regulations  of  board  for  sale  of,  violated.  ;3814. 
prevents  obstructions  by  milldams,  etc.,  24G2-2464. 

BOARD  OF  EDUCATION :     See  Volume  II. 
chairman  may  administer  oaths.  2302. 
compensation  of  members  of,  27SG. 

fixes  salary  of  superintendent  of  public  instruction.  2782. 
fines  and  penalties  paid  to  treasurer  of,  1378. 
treasurer  of  county  ex  officio  treasurer  of.  1396. 

BOARD  OF  ELECTIONS :     See  Volume  II. 
compensation  of ;  county  board,  2784. 
state  board,  27G0. 

BOARD  OF  HEALTH  :     See  Volume  II. 

contagious  diseases ;  failing  to  notify  schools  of,  misdemeanor,  3440. 
regulations  concerning  health,  violation  of,  punished.  3440-3458. 

BOARD  OF  INTERNAL  IMPROVEMENTS :     See  Volume  II. 
compensation  of ;  members  of,  2758. 

secretary  of,  2737. 
officers  of  state  institutions  failing  to  report  to.  misdemeanor.  3.")9."). 
railroads,  etc.,  state  interested  in,  not  reporting,  misdemeanor.  .3.595. 
witnesses  failing  to  appear  or  testify  before,  misdemeanor,  369.3. 

BOARD  OF  PENSIONS :     See  Volume  II. 
compensation  of  county  board,  2783. 

BOARD  OF  PUBLIC  BUILDINGS  AND  GROUNDS :     See  Volume  II. 
laborers  employed  by :  compensation,  2762. 
superintendent  of,  280C. 

BOARD  OF  PUBLIC  CHARITIES :     See  Volume  II. 
expenses  of,  paid.  2807. 

officers  failing  to  furnish  to,  information;  misdemeanor,  3566. 
Rev.  Vol.  1—70  1169 


INDEX. 

BOND  FOR  COST : 

action  ou,  and  other  obligations,  280. 
appeal :  to  suiueme  court,  civil  actions,  003-595,  597. 
criminal  actions,  3277-3279. 

from  county  commissioners'  decision  as  to  road,  2090. 
arrest  and  bail ;  plaintiff's,  730. 

defendant's,  737-747. 
attachment  proceedings,  plaintiff's,  763,  764. 

defendant's,  773-775. 
caveat  of  will,  3136. 
claim  and  delivery  proceedings,  plaintiff's,  793-794. 

defendant's,  795-797. 

iuterveuor's,  800. 
contested  election ;  plaintiff's  bond  for  leave  to  sue,  828-831. 

defendant's,  before  answering,  835. 
defense  bond  in  action  concerning  land,  453,  454. 

mortgage  in  lieu  of,  209. 

surety  company  may  give,  273. 
garnishment ;  plaintiff's,  in  suing  on  defendant's  note,  785. 
judgment  ou,  on  appeal,  1251,  1279-1282. 
money  deposited  in  lieu  of.  4."5(i. 
mortgage  given  in  lieu  of,  in — 

criminal  proceedings ;  conditions  of.  266. 
fees  for  foreclosing,  266. 
power  of  sale  executed  how,  266. 
time  of  payment  limited,  266. 

civil  actions ;  plaintiff's,  269. 
defendant's,  269. 

security  of,  increased  when,  271. 

value  of  property  included  in,  affidavit  as  to,  270. 
pauper  suit  does  not  require,  451,  454. 
prosecution.  4."0.  451.     See  Prosecution  Bond. 

mortgage  in  lieu  of,  269. 

surety  company  can  make.  273. 
stay  bond  for  costs  on  appeal  from  justice,  1487. 
undertakings  for  costs.     See  Undertaking. 

BOND  FOR  TITLE : 

decedent's ;  conditions  complied  with  by  representative.  83. 
must  be  written,  probated  and  registered,  976.  979,  980. 

BONDS : 

action  on,  defendant  may  plead  satisfaction,  when,  1.5'22. 

penalty  discharged  when  sum  due  paid,  1523. 
adopted  child's  estate  secured  by,  178. 
appearance.     See  Bail,  Criminal  Action, 
auctioneer's,  217. 
bastardy  proceedings,  254.  259. 
corporation.     See  Bonds.  Corporate, 
costs;  in  action  on,  when  several  defendants,  proviso,  1264  (5). 

bond  to  secure  payment  of.     See  Bond  for  Cost, 
decedent's,  binding  heirs,  paid  by  representative,  98. 
defense.     See  Defense  Bond, 
destroyed ;  action  on,  when,  .'534. 
ferrymen  give,  when,  2700. 
fiduciaries'.     See  Bonds,  Fiduciary, 
mortgage  given  in  lieu  of,  265,  267,  269. 
notes,  bills,  etc.     See  Negotiable  Instruments, 
officers',  public.     See  Bonds,  Official, 
peace.    See  Peace  Warrant, 
prosecution.    See  Prosecution  Bond. 

1170 


INDEX. 

BONDS— ccn<Mi  ueO.  : 

receiver's,  before  entering  upon  duty,  1205,  1222. 

surety  company  may  make,  273. 

surety ;  may  execute  mortgage  in  lieu  of,  205. 

remedy  of  surety  against  principal,  2840-2848. 
title,  bond  for.     See  Bond  for  Title, 
trustee  in  deed  of  assignment,  909,  970. 
undertaking.     See  Undertaking, 
warehouseman's,  3030,  3031. 

BONDS,  CORPORATE : 

county ;  commissioners  may  issue,  for  certain  purposes,  1302. 

may  buy  outstanding  bonds  of  count.v,  1320. 
exemptions  from  taxation  abolished ;  proviso,  2976. 

towns  may  exempt  their  own  bond.s,  2976. 
municipal ;  limitations  upon  issuance  of,  2974-2977. 

taxes  for  payment  of,  collected,  how,  2562. 
railroad;  power  of  company  to  issue,  2567  (10). 

may  acquire  or  indorse  other  railroad's.  2507  (13). 

BONDS,  FIDUCIARY : 

action  against  principal  on,  barred,  when,  393. 

against  sureties,  barred,  when,  395   (0). 

venue,  421. 
administrator's,  29-34.     See  Administrator, 
collector's,  23,  29-34.     See  Collector. 
de.stroyed,  how  action  brought  on,  334. 
executor's,  28-34,  319.     See  Executor, 
guardian's,  323,  324,  1777-1785.     See  Guardian, 
mortgage  given  in  lieu  of,  205. 
public -administrator,  19,  320. 

continuing  to  administer  after  term  expired ;  bond,  21. 
surety  companies  may  make,  273. 

estate  pays  for,  when,  277. 
venue  of  action  on,  421. 

BONDS,  OFFICIAL: 

actions  on,  of  county  officers,  281,  283. 

brought  in  name  of  state  by  relator,  281,  282. 
.   complaint  must  state  party  in  interest,  282. 
evidence  in,  against  principal  admissible  against  surety,  285. 
successive  suits  may  be  brought  until  bond  exhausted,  281. 
summary  remedy  on  bond  for  money  collected,  283. 
damages  awarded  as  well  as  sum  detained,  284. 
authenticated,  how,  1010. 
clerk,  superior  court,  295,  290,  308. 
gives  mortgage  in  lieu  of,  268. 
clerk,  supreme  court ;  deposited  with  secretary  of  state,  290. 
constable,  302,  308,  2940. 
coroner,  299,  300,  308. 
county  commissioners :  liable  as  surety  on,  when,  313. 

can  not  be  sureties  where  they  approve,  315. 
county  officers';  duty  of  county  commissioners  as  to,  308-315. 
annually  examined  by  commissioners,  308. 
approval  of,  by  commissioners,  311. 

clerk  to  record  yeas  and  nays  on,  312. 
i-ecord  evidence  in  action  against  commissioners,  314. 
those  voting  yea  liable,  when,  313. 
cu.stody  of,  296,  311. 
disapproval  of;  officer  appeals,  1318  (23). 

1171 


INDEX. 

BONDS,  OFFICIA'L— continued: 
county  olBcei's' — continued. 

failiug  to  file,  forfeits  office,  1318  (23). 
new  apiiointee  must  give,  317. 

given  for  tlie  term,  308. 

increase  of,  required,  when,  308. 

failure  to  increase,  office  forfeited,  309. 

justification  of  sureties  on,  310. 

must  be  registered,  1318  (23). 

record  of  board  evidence  as  to  commissiouer's  liability  on,  314. 

superior  court;  inquires  into,  when,  310,  1318  (23),  1319. 
declares  office  vacant,  when,  310,  1318  (23). 

successor  appointed,  317. 
proceedings  filed  with  county  commissioners,  318. 
county  surveyor,  303,  308. 
county  treasurer,  297,  308,  1401. 
destroyed ;  action  on,  334. 
dispensary  commissioners.  2076. 
entry-taker,  304,  308. 
game  warden,  1808. 

house  of  correction,  manager  of,  gives,  1306,  1375. 
informality  In  taking ;  or  in  the  penalty,  not  to  invalidate,  279. 
insurance  commissioner,  293. 

keeper  of  capitol ;  deposited  where ;  action  on,  291. 
mortgage  given  in  lieu  of,  205. 

affidavit  required  of  value  of  land,  270. 

clerk's  mortgage  deposited  with  register,  268. 

deposited  with  clerk,  265. 

power  of  sale  in,  executed  by  clerk,  265. 

security  of,  becoming  insufficient,  additional  required,  271. 
motion  for  summary  judgment  on,  283. 

notice  of,  must  be  given,  283. 
municipal  tax  collector,  2940. 
officer  acting  without  giving,  penalty,  278. 
oyster  commissioner  and  assistant,  2403. 
oyster  inspectors,  2404. 
paymaster,  national  guard.  294. 
pilot;  penalty;  enlarged  when,  etc.,  307. 
public  printer,  292. 
receiver,  849,  1222. 
register  of  deeds,  301,  308,  2659. 
secretary  of  state,  287. 

deposited  with  treasurer,  287. 
sheriff;  number;  penalty;  form,  298,  .^08,  2812-2815. 
standard-keeper,  county,  30G,  308. 

state,  3068. 
state  treasurer,  288. 

clerks  of,  give;  expenses  paid  by  state,  289. 

deposited  with  secretary  of  state,  288. 
surety  companies ;  may  make,  272,  273. 

certificate  from  insurance  commissioner  accompanies.  272. 

estopped  to  plead  ultra  vires,  27.5. 

judgment  against,  not  paid  ;  effect,  275. 

released  from  lialiility,  how,  274. 
town  officers',  fixed  by  town  commissioners.  2925. 
wreck  commissioner.  305. 

BONUSES ; 

railroads  prevented  from  giving,  to  shippers,  1095. 


INDEX. 

BOOK  ACCOUNT : 

copy  of,  used  iu  evidence,  when,  1624. 
evidence  of.  competent  when,  1622. 
personal  representative  proves,  when,  1G23. 

BOUNDARIES : 

contiguous  tracts  merged  into  one,  how,  1505. 
county  boundary  lines  in  dispute,  settled  how,  1322,  1323. 
court  may  order  survey  of  disputed,  when,  1504. 
established  when  registered  conveyance  destroyed,  328. 
evidence  to  fit  description  in  deed  to,  1G05. 
processioning  proceedings  to  establish,  325,  326. 
vagueness  in  description  of.  not  to  avoid  deed,  when,  948. 

BRANDS  :     See  Trademarks. 

BRANDY : 

allowed  to  be  made  and  sold,  how,  2061. 

BREAKING  PRISON: 

aiding  in.  misdemeanor,  when.  36G2. 
punishment  for,  3657. 
sheriff  to  prevent,  how,  2825, 

BRIBERY : 

bank  examiners  accepting  bribe,  felony,  3324. 

cost  of  prosecution  of  assemblyman  for.  paid  by  state,  1262. 

of  prosecution  of  state  officers,  paid  by  state,  1262. 
elections ;  person  offering  bribe  to  voter  at,  3386. 
.jurors  accepting  bribe,  guilty  of  felony.  3697. 

party  giving  bribe,  guilty  of  felony,  3697. 
member  general  assembly :  accepting  bribe,  felony.  3570. 

offering  bribe  to.  felony,  3570. 
public  officer  ;  accepting  bribe,  felony,  3568. 

offering  bribe  to.  felony,  3569. 
state  pays  cost  of  prosecution  for,  when,  1262. 

BRIDGE  COMPANY : 

has  right  of  eminent  domain,  when.  2.575. 

BRIDGES: 

ad.ioining  counties  build,  over  dividing  stream,  when.  2696,  1318  (29),  1319. 
burning  of  public,  a  felony.  3337. 

failure  to  keep  up,  penalty,  2696. 
county  commissioners  erect,  when,  1318  (8),  2696,  2706. 

taxation  for  purpose  of  erection.  1318  (29),  1319. 
draw  in,  constructed  by  county  commissioners,  when.  2698. 

constructed  by  owner  upon  notice  from  navigators.  2699. 
owner  failing  to  construct  upon  notice,  forfeiture,  2699. 

railroad  companies,  etc.,  maintain,  when,  2701. 
damages  to ;  solicitor  brings  civil  action  for.  when,  2705. 
driving  over  out  of  walk,  misdemeanor ;  proviso,  3780. 
failing  to  keep,  in  repair,  penalty.  2703,  2930. 

fastening  vessel  to.  across  navigable  stream,  misdemeanor.  3774. 
in.iuring  or  destroying,  misdemeanor,  3771. 
maintenance  of :  expense  borne  how.  2704. 
mill-owner :  maintains,  over  races,  etc.,  2697. 

failure  to  maintain,  misdemeanor,  3772. 
municipal  corporations  must  maintain,  2930. 


INDEX. 

BRIDGES — continued: 

permitting,  to  remain  out  of  repair  ten  days,  misdemeanor,  3773. 

overseer  lialile  to  penalty  and  damages,  2724. 
railroads,    etc. :    failing    to   maintain,    made   necessary    by    them,    misdr 

meanor,  3775. 
solicitor  to  prosecute  civil  action  for  damages  to,  when,  2705. 
supervisors  of  roads  failing  to  report,  misdemeanor,  3770. 
toll ;  established  by  county  when,  270C. 

owner  of  ferry  may  build  ;  bond  given  for  repair,  2709. 

BUCKET-SHOP:     See  Futures,  Dealing  in. 

BUGGERY : 

crime  against  nature  with  man  or  beast,  3349. 
completed  by  penetration  alone,  3G39. 

BUILDING  AND  LOAN  ASSOCIATIONS  :     See  Volume  II. 

agents  soliciting  without  certificate  of  license,  misdemeanor,  3327. 
corporation  commission's  power  over,  10G2,  1060-1071. 
creation  of,  not  allowed  under  general  corporation  law,  1137. 
making  false  statement  to  corporation  commission,  misdemeanor,  3320. 
refusal  of  books  of,  to  corporation  commission,  misdemeanor,  3329. 

BUILDINGS  IN  TOWNS: 

ashes ;  how  cared  for  around,  3007. 

burning  of.     See  Burnings. 

certificate  of  jiroper  construction  issued,  when,  2980. 

condemnation  of,  regulations  concerning,  3010. 

owner  allowing  condemned  building  to  stand,  misdemeanor,  3802. 
failing  to  comply  with  order  of  inspector,  misdemeanor,  3798. 
removing  notice  of  condemnation,  misdemeanor,  3798. 
construction  of ;  completed,  inspector's  duty,  298C. 
defects  in,  corrected,  3009. 
permit  must  be  secured  for,  2986. 
requirements  as  to  doorwa.vs  in  party  walls,  2990. 
electric  wiring.  .3001. 
flues  and  chimneys,  2993-2999. 
foundation  of  walls,  2990. 
.ioists  and  beams,  2992,  2993. 
standjiipes  on  business  houses,  2991. 
steam  pipes,  3000. 
stovepipes,  2998. 
walls,  2987,  2989,  2990. 
dwelling-house  not  condenuicd  for  railroad  right-of-way,  2.'')7S. 
electric  wiring  of  houses,  reciuirements  as  to,  3001. 
flre  regulations  concerning  ashes,  waste,  stoves,  etc..  3007. 
frame ;  not  allowed  erected  in  fire  limits.  2988. 
inspector  of :  appointment  of,  2982. 

chief  of  fire  department,  acts  as,  when,  2982. 

deputy  performs  duty  of.  29S4. 

duty  of;  during  construction  of  buildings,  2980. 

to  certify  as  to  h\iilding  bcini:  piDpcrly  con.structefl.  2986. 
inspect  building  on  eoniplctinu.  liDSii, 

wiring  of  buildings.  .S(l(»1. 
keep  certain  records.  2980,  ,3004. 
make  quarterly  inspections  in  fire  limits.  3002. 

annual  insi)ections  in  corporate  limits.  ,300,3. 
report  to  insurance  conunissioner,  2986.  ,3002,  3003,  300,5. 
failing  to  perform  duty,  misdemeanor,  3610. 
fees  of,  3001,  3006. 
right  of,  to  enter  buildings  to  inspect.  .3003. 

1174 


INDEX. 

BUILDINGS  IN  TOWNS— continued: 

lien  on,  for  material  and  labor,  2016.     See  Lien. 

municipal  corporatious ;  power  to  enforce  regulations  concerning,  3008.  . 

power  to  exempt  itself  from  law  as  to,  3011. 
permits  to  erect,  necessary,  29S6. 
standpipe  required  on  certain  business  houses,  2991. 

BURDEN  OF  PROOF : 

action  on  judgment,  jurisdiction  controverted,  497. 

cancellation  of  note,  etc.,  by  mistake,  on  whom  is,  2273. 

corporation  commission's  decision  deemed  just  on  appeal,  1075,  1112. 

correction  of  grant ;  plaintifC  must  show  notice  given,  when,  1742. 

creditor's  action  against  trader  refusing  to  disclose  interest,  2118. 

defendant  pleading  contract  unlawful,  plaintiff  must  show  lawful,  1691. 

fisherman,  nonresident,  must  show  transfer  of  fishery  to  resident  bona  fide, 

when,  2467. 
indorser's  title  to  note,  etc.,  shown  defective;  holder  has,  2208. 
libel  and  slander,  501. 
performance  of  contract,  498. 
sale  of  liquor  to  minors,  3524. 

BURGLARY : 

breaking  into  houses  otherwise  than  burglariously,  3333. 

out  of  dwelling-house  in  night  time,  3332. 
divided  into  two  degrees,  3331. 

intent  to  commit ;  burglars'  tools  in  possession  evidence,  3334. 
punishment  for,  3330. 
verdict  may  be  for  second,  when  indicted  for  tirst  degree,  3270. 

BURIAL  GROUNDS  :     See  Graveyards. 

BURNINGS: 

arson  ;  punishment  for,  3335. 

attempt  to  burn  dwelling  or  outhouse ;  felony,  3336. 

burning  any  building  used  in  carrying  on  trade,  felony,  3338. 

bridges  and  buildings  used  for  public,  felony.  3337. 

churches,  chapels,  meeting-houses,  felony,  3338. 

corporation  offices,  felony,  3337,  3344. 

crops  gathered  and  not  stored,  felony,  3339. 

dwelling  occupied  by  person  burning,  when  a  felony.  3340. 

factory  used  for  manufacturing,  felony.  3338. 

gin-house,  tobacco  house,  etc.,  felony.  3.341. 

mill,  shop,  granary,  etc.,  felony.  .3338. 

one's  own  dwelling  for  fraudulent  purposes,  felony,  3340. 

public  buildings  of  state,  county  or  town,  felony,  3337,  3344. 

school-house,  or  procuring  to  be  done,  felony.  3345. 

sedge  or  grass  standing  on  another's  land,  felony,  .3339. 

stable,  coach-house,  etc..  felony,  3338. 

woods  of  another :  or  one's  own,  without  notice,  felony,  3346. 
incendi;iry  fires  ;  officers  not  investigating,  etc.,  misdemeanor,  3342. 

occupant  of  premises  failing  to  obey  orders,  misdemeanor,  3343. 
punishment  for  arson,  333.5. 
wagoners   leaving  camp-fires  burning,   misdemeanor.  3347. 

BURNT  AND  LOST  RECORDS: 

Anson  county  deed  and  will  books;  cojiies  as  evidence,  1615. 
bonds  destroyed,  action  on,  when,  3.34. 

boundaries  established  how  when  deed  and  record  destroyed,  328. 
certified  copies,  as  evidence.  327,  1612,  1613. 

recorded  in  clerk's  office  or  registered.  327,  328. 
color  of  title,  how  determined,  333. 

1175 


INDEX. 

BURNT  AND  LOST  RECORDS— co)i/("ni(frf; 

couveyaiKcs  made  by  sheriff,  etc.,  destroyed ;  new  made,  33(;. 

deeds  lost,  registry  lost,  presumed  in  due  form,  1002. 

deeds,  wills,  etc.,  contents  proven  by  records,  wUen,  337. 

destruction  of  records  in  Moore  county  presumed,  when,  344. 

evidenced  by  certified  copies,  327,  330. 

judgments  perpetuated,  how,  332. 

perpetuated  bow,  when  other  than  wills  or  deeds,  332. 

when  perpetuated,  have  force  of  original,  340. 
petition  to  perpetuate,  what  contains,  339. 
pleadings,  etc.,  lost,  restored  by  copy,  504. 
procedure  to  set  up,  339. 

recitals  in  deeds  prima  facie  evidence,  when.  341. 
wills ;  contents  of,  proven  how.  331. 

copies  of ;  admitted  to  probate,  329. 
used  as  evidence,  330. 
witness  tickets  destroyed,  new  ones  issued,  when,  335. 

BUSHEL: 

contains  how  many  pounds,  3066. 

penalty  for  taking  greater  weight,  3066. 

BUTCHERS : 

failing  in  certain  counties  to  keep  certain  records,  misdemeanor,  .S803. 

BY-LAWS :    See  Corporations. 

CAMP-FIRES : 

wagoners  leaving  camp-fires  burning,  a  misdemeanor,  3347. 

CANAL : 

company  formed  to  operate,  etc.     See  Canal  Companies, 
establishing,  to  transport  others  than  owners,  misdemeanor,  3767. 
land,  width  of,  allowed  to  be  condemned  for.  2.597. 
maliciously  injuring  or  obstructing,  a  felony.  3754. 

homicide  when  accident  follows  causing  death,  3754. 
servient  owner  of  land  obstructing,  misdemeanor,  when,  3.^75,  .3376. 

CANAL  COMPANIES  :     See  Volume  II. 

corporation  commission's  power  and  duty  to  Investigate,  1064,  1006-1071. 

freight  may  be  carried  free,  when,  1105. 

has  right  of  eminent  domain,  2.575. 

long  and  short  haul  by  ;  regulations  concerning.  1107. 

passes  allowed  by,  to  certain  persons.  1105. 

rates  of ;  jirinted  schedule  filed  with  corporation  connnission,  1109. 

regulated  by  corporation  commission,  1099,  1104-1107,  1100. 

schedule  of,  how  authenticated  in  court,  1112. 
transportation  over,  must  be  given  corporation  connnission,  1 10,''>. 

CANCELLATION: 

moi'tgages  and  trust  deeds  released  by,  1046. 
security  for  costs,  where  costs  paid.  267. 

CAPIAS: 

clerk  issues,  where  nol.  pros,  with  leave,  when.  .T273. 
<lefendant  not  arrested  under,  commissioners  pay  officers.  277.3. 
executed  on  Sunday,  when,  2837. 

CAPITAL  STOCK  :     See  Corporations. 


INDEX. 

CAPITOL:     See  Public  Buildings  and  Grounds,  Voliinie  II. 
janitor  for,  salary  of,  2762. 
keeper  of,  salary  of,  2806. 
watcliman  for,  salary  of,  2762. 

CAR-COUPLERS :     See  Railroads. 

CARNAL  KNOWLEDGE  :     See  Rape. 

CARTWAYS :    See  Roads. 

CASE  ON  APPEAL : 

civil ;  settled  and  perfected,  how,  591. 

criminal ;  settled  and  perfected  as  civil,  3277. 

justice's,  to  superior  court,  1491-1494. 

special  proceedings,  settled  and  perfected,  liow,  612,  613. 

CASTRATION : 

castrating  or  injuring  private  member  with  malice  aforethought,  3627. 
without  malice  aforethought,  3626. 

CATTLE:     See  Live  Stock:  Quarantine;  Stock  Law. 

CATTLE-GUARD :     See  Railroads. 

CAVEAT :     See  Wills. 

CEMETERIES :     See  Graveyards. 

CERTIORARI,  WRIT  OP : 

authorized,  584. 
issued  when,  584. 

CHAIN-GANG  :     See  County  Convicts. 

CHALLENGE :     See  .Jury. 

CHARGE  TO  JURY  :     See  Instructions  to  .Jury. 

CHARTERS : 

banks,  222,  223,  228,  235.     See  Banks. 

building  and  loan  associations.     See  Volume  II. 

corporations,  except  banks,  railroad,  etc.,  1128-1140.     See  Corporations. 

Insurance  companies.     See  Volume  II. 

railroad,  2548,  2549,  2566,  2567.     See  Railroads. 

CHATTEL  MORTGAGE : 
cancellation  of,  1046. 

disposing  of  property  conveyed  by,  presumed  fraudulently,  3435. 
form  of,  authorized,  1039. 

household  and  kitchen  furniture  subject  of:  wife  must  be  party.  1041. 
lien  bond  coupled  with,  2055. 

married  woman  must  join  in  execution  of,  when.  1041. 
notice  of  sale  to  foreclosure,  1040. 
probate  of.    See  Probate, 
property  under,  disposed  of  to  defraud ;  misdemeanor.  3435. 

aiding  and  abetting  the  fraud,  misdemeanor,  3435. 

evidence  to  make  prima  facie  case,  .3435. 
registration  of.  1040. 

fee  for,  2776. 
sale  to  foreclose,  twenty  days"  notice  given,  1040. 
1177 


INDEX. 

CHEROKEE  INDIANS: 

certaiu  coDtracts  with,  must  be  written.  !>7."i. 

CHILD:     See  lufiints ;  Minors. 

abaudoniuent  of,  by  parent,  forfeits  custody,  180,  181. 
abduction  of ;  by  inducing  to  leave  kindred  or  school.  3358,  3359. 

by  one  not  so  nearly  related,  felony,  3350. 
parent  after  forfeiting  custody,  3373. 
adopted,  inherits  when,  177. 

adoption  of,  174-181.    See  Adoption  of  Minor  Children.  ^ 

advancements  to.  accounted  for  in  distributing  estate,  133-135. 
after-born  ;  intereist  in  ancestor's  estate,  138-143. 
aiding  minor  to  obtain  cigarettes,  misdemeanor,  3805. 
apisrenticed.  18-1-206.     See  Apprentice. 

barkeeper  allowing  minor  to  enter  bar  against  parent's  protest,  3729. 
birth  of,  concealing,  felony,  when,  3623. 
carnal  knowledge  of,  under  fourteen,  rape  when,  3348. 
cigarettes ;  selling  or  giving  to  minor,  misdemeanor,  .3804. 
conspiracy  to  abduct,  by  one  related,  3359. 

contractor  hiring,  to  manufacture  by  piece,  with  intent  to  defraud,  3428a. 
conveys  property  held  in  trust,  how,  1036. 
custody  of.  forfeited  by  parent.  180. 

restored,  how,  181,  1853,  18-54. 

affected  by  divorce,  1570. 
divorce ;  effect  on,  1569,  1570. 

enticing  minor,  out  of  state  without  parent's  consent,  misdemeanor,  3630. 
estate  of,  inherited  by  parent,  when,  15.56  (r.  7). 
expenses  of  action  against  infant,  how  paid.  407. 
exposing,  to  fire  by  shutting  up  in  building,  misdemeanor,  379.'5. 
guardian  of :  duties,  etc.     See  Guardian, 
heir  of  living  person  construed  how,  1583. 
hours  of  labor  of,  in  factories,  regulated,  3363. 
illegitimate,  legitimated.  •_'C3.  264. 

next  of  kin  to  mother,  136.  137. 
infants,  action  by  and  against.    See  Infants, 
inherits  from  ancestor,  how,  1556. 
insane  mother's  estate  used  for  benefit  of,  when,  1899. 
judge  approves  all  orders  affecting  estate  of  infant.  571.  720. 
kidnapping,  a  felony,  3634. 

limitations,  statute  of,  does  not  affect  infant,  362. 
manufacturers,  employing,  under  twelve  years,  misdemeanor,  3362. 
parents  misstating  age  of,  to  employer,  misdemeanor,  3364. 
selling  to  minors — 

cigarettes ;  or  giving  to  them,  misdemeanor.  .3804. 
aiding  minor  to  get.  misdemeanor.  3805. 

deadly  weapons,  misdemeanor.  3832. 

liquor,  a  misdemeanor,  3524. 

proof  of  sale  makes  prima  facie  case.  3.524, 
sent  to  orplianage,  when,  184. 
spendthrift  trust  can  be  created  for,  1.588. 
unborn,  in  esse,  can  take  by  deed,  1582. 

inherits  how,  1.550  (r.  7). 
will  void  as  to  after-hom  child.  3145. 

CHOSES  IN  ACTION : 

administrator's  sale  of  decedent's.  67. 

arising  from  tort  not  assignable,  400, 

assignee  of;  pays  cost  when  action  concerning,  pending,  1278. 

action  by,  without  pre.judice  to  defenses  existing  prior  to  notice,  400. 
bills,  notes,  checks,  etc.     See  Negotiable  Instruments, 
.iudgments.    See  Judgment. 

1178 


INDEX. 

CriOSES  IN  ACTIO'S— continued : 

larceny  of,  punished  as  larceny  of  money,  etc.,  3498,  3499. 

liens.     See  Lien. 

personal  representative's  rlglit  to  sue  on,  156. 

plaintiff  in  attachment  sues  on  defendant's,  when,  785. 

ward's.     See  Guardian. 

CHURCHES  : 

burning  of,  wilfully,  a  felony,  3338. 

disturbing  congi-egation  of,  misdemeanor,  3706. 

exhibiting  jack  or  stud-horse  near,  during  worship,  misdemeanor,  3705. 

obstructing  way  to,  or  to  spring,  etc.,  used  by,  misdemeanor,  3776. 

religious  societies,  2670-2074. 

roads  to ;  how  established.  2087,  2688. 

showing  off  curiosities,  etc.,  near,  during  worship,  misdemeanor,  3705. 

title  to.  on  vacant  land,  confirmed,  2074. 

wilful  injury  to.  a  misdemeanor,  3673. 

CIGARETTES : 

aiding  minors  to  secure,  a  misdemeanor.  3805. 
giving  away  to  minors,  a  misdemeanor,  .3804. 
selling  to  minors,  a  misdemeanor,  3804. 

CITIES  AND  TOWNS :     See  Municipal  Corporations. 

CIVIL  PROCEDURE : 

abatement  of  actions,  415,  1208.     See  Abatement. 

of  nuisances,  825,  2138,  2142,  2929.     See  Nuisance, 
accounts  ;  action  on  liquidated  and  settled,  484. 
accounting  of  personal  representative  compelled,  104-131. 
action,  civil :  defined,  351,  2.340.     See  Action,  Civil. 

distinction  between,  and  equity  suits  abolished,  354. 

repeal  of  statute  giving,  does  not  affect,  when,  2830. 
administrator ;  actions  by  and  against,  30,  31,  156-165,  167. 
adverse  party  examined,  864-872. 

adverse  possession,  effect  of.     See  Adverse  Possession, 
advertisement :  of  notices.     See  Advertisement. 

of  process.     See  Publication, 
affidavits.     See  Affidavit. 

account  proven  by.  how,  1625.     See  Boob  Account. 

alimony  pendente  lite  secured  by,  1566. 

arrest;  order  for,  obtained  by,  729. 
counter  affidavits  filed,  736. 

attachment  warrant  obtained  by,  759. 

bastardy  warrant  issued  on.  252. 

before  whom  made,  925-931. 

claim  and  delivery  :  affidavit  contains  what,  791. 

continuance  asked  for  by,  530-532. 

creditor's,  in  proceedings  supplemental  to  execution,  668. 

divorce ;  must  accompany  complaint,  1563. 

injunction  granted  ou,  when,  810. 

judgment  debtor  arrested  on,  when,  671. 

motions  backed  by.  875. 

pleadings  verified  by,  488-493.     See  Verification. 

referee  appointed  to  take,  of  person  refusing  testimony,  875. 

removal  of  causes  by,  425-428.  1455. 
agricultural  lien  enforced  how,  2054,  2056. 
alias  summonses  issued,  when,  437. 
aliens ;  time  of  war  not  counted  as  against,  379. 
alimony,  action  for ;  procedure,  1558.  1503,  1566. 

117S 


INDEX. 

CIVIL  PROCEDURE— to»ii»iMe(J; 

amendiuents ;  bail  not  discharged  by,  757.     See  Amendment, 
court  proceedings  amended  wlien,  507,  512,  513.  14U7. 
pleadings  ;  wben.  505,  507,  508,  510,  511,  515,  510,  14G8. 
process,  when,  507,  14G7. 
amercement;  constable,  040,  2817,  .3004,  3149.     See  Amercement 

sheriff,  2817,  2S21,  3149,  2827,  2828.     See  Amercement, 
answer;  contains  what,  477,  479,  481-483,  1460.     See  Answer, 
demurrer  to,  485. 
filed,  when.  471,  473. 
judgment  tor  want  of,  556,  560. 
new  matter  in,  taken  as  true,  when,  503. 
objection  not  taken  by  demurrer  or,  waived,  478. 
sham,  stricken  out,  472. 
appeal  taken  from — 

clerk  to  judge,  588,  GlO-613.     See  Appeal,  Civil  Action. 

corporation    commission    to    superior    court,    1074-1076.     See    Appeal. 

Civil  Action, 
county  commissioners  to  superior  court,  2690.     See  Appeal.  Civil  Ac- 
tion, 
judge,  to  supreme  court,  588.     See  Appeal,  Civil  Action, 
jtistice's  court  to  superior  court — 
dismissed  when.  607. 

heard  on  original  papers  by  superior  court,  609. 
notice  of,  and  return,  1491-1494. 
stay  of  execution  pending,  1490. 
trial  de  novo,  607,  1401. 
who  may  appeal,  1489. 
road  supervisors  to  county  commissioners,  2683,  2686,  2688. 
superior  court  to  supreme  court — 

ease  on  appeal  settled,  542,  554,  591. 

dismissal  of;  for  lack  of  undertaking,  593,  .596. 

for  failure  to  prosecute,  1543. 
in  forma  pauperis,  597. 
judgment ;  as  to  costs,  1270-1282,  1542. 
as  to  exceptions,  605,  1542. 
certified  below,  1526. 
notice  of.  591. 

stay  of  execution  pending,  598-603.     See  Execution, 
transcript  of  record.  592. 
luidertaking  on,  593.  594.  601.  603.  605. 
who  may  take,  585,  587. 
appearance  in  person  or  by  attorney,  161.  213,  356,  4n."i,  4(Hi. 

voluntary  ;  no  summons  necessary,  447. 
appraisers ;  allot  homestead,  087-689.  693,  694,  709. 

set  aside  personal  property  exemption,  605-697,  704.  700. 
arbitration  :  before  corporation  commission,  when,  1073. 

as  to  value  of  dividing  fence,  16(i0. 
argument  of  counsel  controlled  liy  court,  216. 
arrest  and  bail.  726-7.57.     See  Arrest  and  Bail,  Civil  .\i(ion. 
assault ;  civil  action  for.  barred  when,  397. 
assignee  of  choses  In  action  :  action  by.  400. 

costs  against,  after  action  brought,  1278. 
attachment  of  defendant's  property,  758-789.     See  Attachment, 
attorney  general ;  action  bv,  against  corporations,  827.   1194,  1152,   1198, 
1242,  124G. 
to  annul  land  grants,  17.50. 
oust  usurper  of  oHice,  827. 
])roserutP  stay  bond  of  railroad.  1084. 
grants  leave  to  contestant  of  election  to  sue.  828. 
ball.     See  Arrest  and  Bail,  Civil  Action, 
banks:  receiver  for,  asked  by  corporation  commission,  when,  250. 

nso 


INDEX. 

CIVIL  PROCKDVRE— continued: 

bastardy  pi-oceedings,  252-264.     See  Bastardy  Proceedings. 

battery  ;  action  for,  barred  when,  397. 

betterments  claimed  by  defendant,  652-G66.     See  Betterments. 

bill  of  particulars  granted,  when,  494,  14G9. 

bonds ;  actions  on.     See  Bonds  ;  Bonds,  Fiduciary  ;  Bonds,  Official. 

for  cost  in  civil  actions.     See  Bond  for  Cost. 
burden  of  proof.     See  Burden  of  Proof, 
burnt  and  lost  records  perpetuated,  how,  327-345. 
case  on  appeal,  how  settled,  etc.,  501.     See  Case  on  Appeal, 
caveat  of  will ;  procedure  on,  3135-3137.     See  Wills, 
certiorari,  writ  of ;  bond  for  costs,  584. 
challenges  to  jury  ;  apportioned  among  defendants  when,  19G5. 

each  party  entitled  to  four  peremptory,  1964. 

talesmen  subject  to  challenge,  1966. 
charge  to  jury ;  judge's  duty  to  make,  535. 

must  be  in  writing,  on  request,  536. 

request  for,  must  also  be  written,  538. 

when  written,  jury  can  take,  537. 
choses  in  action  sued  on,  party  in  interest  stated,  400. 
civil  process  returnable  to  criminal  terms,  1.507.     See  Process, 
claim  and  delivery,  790-802.     See  Claim  and  Delivery, 
claims  against  state,  how  prosecuted,  1537,  1538. 
clerk's  duties  in  actions  and  proceedings.     See  Clerk,  Superior  Court. 

jurisdiction  to  decide  matters  of  practice,  358. 
clerk  supreme  court ;  duties  in  appeals.     See  Clerk,  Supreme  Court, 
cloud  upon  title ;  action  to  remove,  1.589. 
color  of  title.     See  Color  of  Title. 

commissioners'  reports  not  set  aside  for  trivial  defects,  724. 
complaint,  465-4G9.     See  Complaint, 
compromise  of  actions,  859-863.     See  Compromise, 
condemnation  proceedings,  2575-2598.     See  Condemnation  Proceedings, 
conditions  precedent,  how  pleaded,  498. 
confession  of  judgment,  when  and  for  what,  580. 

debtor  confessing  makes  verified  statement,  581. 

judgment  entered ;  execution  how,  582. 
contested  elections :  procedure,  826-845.     See  Contested  Elections, 
contempt  of  court ;  generally,  939-945.     See  Contempt. 

administrator  guilty  of,  when,  100. 

adverse  party  refusing  to  testify,  punished  as  for,  869. 

corporation  commission's  power  to  punish  for,  1067. 

county  commissioners  may  punish  for.  1318  (22). 

judgment  or  order,  failure  to  obey,  punished  as  for,  615. 

magistrate  failing  to  return  preliminary  examination,  3206. 

profane  swearing  in  justice's  court,  1426. 

refusing  to  witness  before  receiver,  1227. 

supplemental  proceedings,  disobeying  orders  in,  684. 

trustee  failing  to  pay  trust  fund  into  court  on  order,  851. 
continuance ;  affidavit  to  secure,  before  term,  530. 

application  to  secure  in  term,  531. 
contracts ;  joint,  how  action  brought  on.  413. 

persons  severally  liable  on,  action  brought  how,  412. 

statute  of  limitations  bars  action  on,  when,  391-393,  395.  39G. 

where  joint  and  several ;  summons  and  judgment,  45.5-4.59. 
corporation  commission's  jurisdiction  and  powers,  1054-1118.     See  Corpo- 
ration Commission, 
costs  in  actions  and  proceedings.  12.59-1282.     See  Costs, 
counsel  may  be  assigned  pauper,  when,  452. 
counterclaim;  what  constitutes,  481.     See  Counterclaim. 

answer  setting  up,  plaintiff  may  reply,  484. 
no  reply ;  judgment,  558. 

1181 


INDEX. 

CIVIL  PROCEDURE— coii^mMfd; 

counterclaim — contiinicd. 

judgment  on  ;  by  default,  when,  556. 

where  counterclaiui  exceeds  claim,  553. 

set  up  by  answer,  479,  4S1,  482. 
"court"  means  "clerk"  when,  352. 

creditors'  action  against  heir  and  representative ;  procedure,  58-58,  94,  104. 
damages ;  assessed  in  certain  cases,  553,  2575-2598.     See  Damages. 

in  arrest  and  bail,  730. 
claim  and  delivery,  5.")1, 
injunction,  how  ascertained,  SIS. 
declaration.     See  Complaint, 
defendant ;  defined,  355.     See  Defendant. 

who  may  be,  406,  407,  410-414. 
defense  bond,  2G9,  273,  453,  454. 
demurrer  to  plea,  470-478.     See  Demurrer  to  Pleading. 

to  evidence,  539. 
depositions  taken  and  read.  1645-1C55.     See  Deposition, 
detinue.     See  Claim  and  Delivery, 
disabilities ;  who  under,  302,  303.     See  Disabilities. 

cumulative,  3C4. 

limitations,  statute  of,  how  affected  by,  362,  3G3. 

must  exist  when  right  of  action  accrued,  365. 

removed ;  actions  by,  when,  362. 
discontinued  when  chain  of  summonses  broken,  438. 
disclaimer  of  title  by  defendant  in  trespass,  863. 
discovery,  bills  of,  abolished,  864. 
dismissal  of  action,  466,  539,  563. 

examination  of  parties.  864-872.     See  Examination  of  Parties, 
error,  writs  of,  abolished,  .583. 
evidence  in  civil  actions.     See  Evidence, 
execution,  Gl.5-640.     See  Execution. 

sales  under,  641-651.     See  Execution  Sales, 
exceptions  upon  trial,  when  and  how  taken,  542,  554. 
exemptions,  685-709.     See  Homestead,  Personal  Property  Exemption, 
executors,  etc.,  actions  by  and  against.     See  Administration, 
fact;  issues  of;  how  tried,  527,  544,  546,  .547. 

questions  of,  how  tried,  357. 
feigned  issues  abolished,  357. 
forms  of  action,  no  distinction  in,  354. 
garnishment,  2880.     See  Attachment, 
guardian  ad  litem,  406,  407, 

heir  commences  action  within  one  year  of  nonsuit,  370. 
homestead  allotted,  68.>693,  699-709,     See  Homestead, 
idiots  sue  by  guardian  or  next  friend,  405. 

defend,  how,  406, 
Infants  sue  by  guardian  or  next  friend,  405.     See  Infants. 

defend,  how.  406. 
in  forma  pauperis ;  action  brouglit,  451. 
injunction.  800-821,     See  Injunction, 
inspection  of  writings.  1656. 

Instructions  to  jury.     See  under  this  head.  Charge  to.  etc. 
interlocutory  judgment.  5.55. 
interpleader  in  attachment,  789. 

in  claim  and  delivery.  800. 
Issues  of  fact.  .526-529,  .544.  .546-549.  1935.     See  Issues  of  Fact, 
not  raised  by  pleadings,  ordered  tried,  3.57. 

of  law,  .543,  .545.  610-613.  '  See  Issues  of  Law. 
joinder  of  actions,  469. 

misjoinder  groruid  for  demurrer,  474. 

demurrer  sustained,  causes  divided,  476. 


INDEX. 

CIVIL  PROCEDURE— coMimwef/.- 
joinder  of  parties,  409-413. 

luisjoiuder  ground  for  demurrer,  474. 
joint,  and  joint  and  several  obligors ;  procedure  against,  412,  413,  455-459. 
judge;- appeal  from  clerk  to,  588,  610-G13.     See  Appeal,  Civil  Action. 

appeal  from  judge  to  supreme  court,  588.     See  Appeal,  Civil  Action, 
judicial  sales  ;  confirmed,  1525. 

proceeds  of,  collected  on  motion,  1524. 
judgment,  555-582.     See  Judgment. 

confessed,  580-582. 
jurisdiction ;  clerli,  352,  GlO-613,  710-725,  901. 

contested  by  demurrer,  474. 

corporation  commission,  1054,  1094-1103. 

county  commissioners,  1318,  2683,  2690. 

judge  in  vacation,  571,  613,  720,  813-815,  846. 

justice  of  the  peace,  1419-1426. 

presumed  when  judgment  pleaded  duly  rendered,  497. 

road  supervisors,  2G83,  2086,  2688. 

superior  court,  1500-1505. 

supreme  court,  1537,  1539. 
jury ;  drawn  how,  in  superior  court,  1957-1963.     See  .Jury. 

challenges  to,  1964-1966. 

justices'  courts,  1479-1488.     See  Courts,  Justices'. 

talesmen  summoned ;  qualifications,  1967,  1968. 

trial  by,  527,  535-538. 

verdict  of,  550-554. 
justices'  courts;  civil  jurisdiction,  252,  1419-1426.     See  Courts.  Justices'. 

appeal  from,  607-609,  1489-1495. 

forms  used  in,  1496. 

jurors  in,  1428-1443.     See  Courts,  Justices'. 

judgment  and  execution  in,  1479-1488. 

procedure  in ;  before  trial,  1444-14,56.     See  Courts,  .Justices', 
at  ti-ial,  1457-1477. 

rules  of  pleading  in,  1457-1463,  1465,  1468. 
libel :  action  for,  2012-2014. 

limitations,  statute  of;  199,  359-399.     See  Limitations,  Statute  of. 
lis  pendens ;  notice  of,  filed  where,  460. 

cancelled  when  and  how,  46.3. 

effect  of,  on  subsequent  purchasers,  462. 

must  be  followed  by  prosecution,  461. 

special  provision  for  Buncombe  County,  464. 
lunatics ;  defend  by  guardian.  406-407.     See  Insane  Persons. 

sue  by  guardian  or  next  friend,  405. 
mandamus,  822-824.     See  Mandamus, 
married  women:  as  parties.  408.     See  Married  Women. 

execution  against,  what  to  be  sold,  617,  622. 

judgment  against  or  for,  how  collected.  .563. 
misjoinder  of  causes  of  action,  demurrable,  474. 

demurrer  for,  sustained,  action  divided,  476,  506. 
misnomer  corrected  by  amendment,  507,  510. 
motions  and  orders,  873-877,  1507.     See  Motions ;  Orders  and  Decrees. 

afiidavit  for.  or  against,  875. 

notice  of,  877. 
negligence;  contributory,  how  pleaded  and»proved,  483. 
new  promise  to  pa,v,  repels  bar  of  statute,  371. 
new  trial ;  motion  for,  in  superior  court,  554. 

none,  in  justices'  courts,  1489. 

party  may  appeal,  when  new  trial  refused,  587. 
next  friend  ;  infants  and  idiots  sue  by,  405. 
nonresident ;  served  with  process  by  publication,  442. 

statute  of  limitation,  how  affects,  366. 

1183 


INDEX. 

Cn'IL  PROCEDUUE— eo»/iHHcr/.- 

nousuit ;  actiou  can  be  renewed  within  a  year,  370. 

defeudaut  entitled  to  judgment,  406,  5U3,  715,  539. 

lilaintiff  not  allowed,  after  verdict,  1520. 
notices  ;  served  bow,  460,  878-882,  886.     See  Notice, 
nuisance;  Judgment  in  actiou  to  abate,  825. 

office ;  contest  over,  procedure,  826-845.     See  Contested  Elections, 
orders :  defined,  873.     See  Orders  and  Decrees. 

injunction  applied  for ;  defendant  ordered  to  show  cause,  813. 

vacated  or  modified  without  notice,  514. 
parties  to  civil  actions,  400-418.     See  Party  to  Action  or  Proceeding, 
partition  proceedings,  2485-2503.     See  Partition, 
pauper  suit,  how  brought,  451. 

appeal  by  pauper,  597. 

court  may  assign  counsel  to  pauper,  452. 

recovers  cost,  when,  1265. 
personal  property  exemption,  685.     See  Personal  Property  Exemption, 
petition ;  clerk  hears  summarily,  when,  719.     See  Petition. 

ex-parte,  718. 

filed  when,  714. 

failing  to  file  in  time,  nonsuit,  715. 

time  for  filing  enlarged,  71G. 
place  of  trial.     See  ^'enue.  Civil  Action, 
plaintiff;  defined,  355.     See  Plaintiff. 

costs  allowed,  when,  1264. 

nonsuited,  when,  466,  539,  563,  715. 

who  joined  as  plaintiffs,  408-410. 
pleadings.     See  Pleadings. 

amendment  of,  505-514.     See  Amendment. 

answer.  360,  361,  479-483.     See  Answer. 

complaint,  465-469.     See  Complaint. 

construed  liberally,  495. 

demurrer,  474-478.     See  Demurrer. 

justice's  courts,  rules  in,  1457-1463,  1465,  1468. 

reply,  484-486.     See  Reply, 
possession  ;  effect  of,  in  actions  to  recover.     See  Adver.-'c  Possession, 
process,  indorsement  made  on,  3149.     See  Process. 

amercement  for  failure  to  return  prnperlv,  2817. 

served  how,  440,  442-444,  770,  1530,  1531. 
return  evidence  of  service  of,  1529. 

sheriff  makes  return,  2817,  2819. 
processioning  land,  325,  326,  328. 

prosecution  bond.  209,  273,  411-415,  4.50.     See  Prosecution  Bond, 
provisional  remedies,  motions  and  appeals  in,  have  precedence,  874. 
publication  of  process.  442,  443,  444,  766,  770.     See  Pulilication. 
purchase-money  of  land,  how  set  out,  468.  627. 
quo  warranto  proceedings,  826-845.     See  Quo  Warranto, 
real  party  in  interest  brings  action,  400. 

complaint  should  state  who  he  is,  when.  282. 

examined  before  and  at  trial,  871. 
receivers,  api)ointment  of.  bond,  etc.,  846-849.     See  Receiver, 
recordari,  writ  of,  allowed ;  bond,  584,  606. 
reference,  518-525.     See  Reference, 
rehearing;  before  jastice.  when.  1478. 
relator ;  leave  granted  to.  to  contest  oflice,  828. 

inducted  into  office,  when,  843. 
remedies  are  by  action  and  special  proceeding,  .346. 

criminal  and  civil  are  not  merged,  3.53. 
removal  of  causes,  425-428,  14.55.     See  Removal  of  .\ctions. 
reply  of  plaintiff,  484-486.     See  Reply. 

restitution  made  defendant  in  certain  cases,  605.  149.5.     See  Restitution, 
restraining  order.     See  Restraining  Order. 

1184 


INDEX. 

CIVIL  PROCEDURE— cmtiiiued: 
return  of  process,  2S17,  2819. 

rules  of  practice  prescribed  by  supreme  court,  1541. 
service  of  process,  440,  442-444,  770.     See  Process, 
sheriff's  duties  as  to  civil  actions.     See  Sberiff. 
special  proceedings,  710-725.     See  Special  Proceedings, 
statute  of  limitations,  199,  359-399.     See  Limitations,  Statute  of. 
stay  of  execution,  590,  598-604.     See  Execution, 
subpoenas ;  issued,  served  and  returned,  884,  886,  1518. 
summons,  generallj%  429-449.     See  Summons. 
Sunday ;  no  arrest  on  civil  process  on,  727. 
superior  court ;  jurisdiction  of,  1500-1505.     See  Courts,  Superior. 

civil  process  returnable  to  criminal  terms,  1507. 

minutes  of,  read  each  morning,  1519. 

oflieer  attending  juries  Sflorn,  1527. 

procedure  on  certificate  of  supreme  court,  1526. 
supersedeas  issued  wbep,  584. 

supplemental  proceedings,  667-684.     See  Supplemental  Proceedings, 
supreme  court;  jurisdiction,  practice.     See  Court,  Supreme, 
tender  of  compromise,  effect,  860,  861,  863. 
time;  computed  bow,  887,  888. 

ti'ial  of  civil  causes,  526.543.     See  Trial,  Civil  Action, 
trustee  admitting  having  trust  funds ;  ordered  to  pay.  8.52. 
trust  funds  ordered  seized  by  sheriff,  when,  851. 
undertakings  for  cost ;  appellant's,  593-595,  597. 

arrest  and  bail,  730,  737-747. 

attachment,  763,  764,  773-775. 

claim  and  delivery,  793,  794,  795,  797,  800.     See  I'.oiid  for  Cost. 

contested  election,  828-831.  8.35. 

defendant  in  land  suits,  453,  454. 

garnishment,  plaintiff's  suing  on  defoHdant's  note.  785. 

injunction,  809,  817,  1205. 

plaintiff's,  in  regular  actions,  450,  451. 
venue  of  civil  actions,  419-428.     See  Venue,  Civil  Action, 
verdict  in  civil  actions,  550-5.54.     See  Verdict,  Civil  .\ctlon. 
verification  of  pleadings,  488-493.     See  Verification, 
waste ;  procedure  in  action  for,  853-858.     See  Waste. 

CLAIM  AND  DELIVERY : 

action  of ;  requisites,  791,  793. 

not  allowed,  when,  2855. 
affidavit,  contains  what,  791. 
costs  iu;  judgment  for,  1264  (2),  1266. 
defendant's  undertaking  to  replevy.  79.5-797. 
delivery  of  property  claimed,  when,  700. 
fiat  of  clerk  to  sheriff,  742. 
intervener  allowed  to  interplead  when,  800. 

gives  undertaking  to  take  property.  801. 
judgment  in  action  of,  570. 
landlord  recovers  crop  of  tenant  by,  when,  1993. 

tenant's  remedy  when  landlord  refuses  to  divide.  1994. 
limitations,  statute  of,  bars,  when,  395. 
order  in  ;  for  sheriff  to  seize  and  deliver  to  plaintiff.  792. 

execution  of,  when  property  concealed.  798. 

not  granted,  when  property  taken  for  ta.x,  2855. 

requisites  before  issuance  of,  792,  793. 

sheriff  makes  return  in  ten  days,  802. 
plaintiff's  undertaking  in.  793,  794. 
property ;  concealed,  how  order  executed,  798. 

delivered  to  plaintiff,  when,  79.5.  796. 
intervener  when,  801. 
party  entitled,  when,  709. 
Rev.  Vol.  1—71  1185 


INDEX. 

CLAIM  AND  DmAyERY— continued. ■ 

re*^'ovei'y  of  iiroperty  forfeiteil  to  state  \>y.  845. 
return  of  uudertaking,  notice  and  affidavit.  802. 
slieriff;  taking  property,  keeps  in  secure  place,  799. 
makes  return,  when,  802. 

responsible  until  defendant's  sureties  justify,  796. 
summons  in,  may  be  accompanied  by  order.  790. 
sureties  on  undertakings  In ;  .iustification,  794.  790,  797. 
tbird  party  claiming  property,  what  done,  800,  801. 
undertaking:  plaintiff's,  for  delivery  of  property.  793. 
copy  served  on  defendant.  793. 
defendant  excepts  to,  794. 

failing  to  except,  waives,  794. 
sheriff  liable  luitil  sureties  justify,  794. 
defendant's,  for  replevy,  79.5. 

sheriff  liable  until  siu-eties  justify.  79G. 
sureties  justify  or  sheriff  delivers  to  i»laintiff,  790,  797. 
intervenor's ;  served  on  plaintiff  and  defendant,  800. 
venue  of  action,  419. 

CLAIMS  AGAINST  STATE : 

supreme  court  to  hear  and  determine,  1537,  1538. 
issues  of  fact  tried  how,  l.'i.S8. 
judgment  merely  recommendatory,  1537. 

CLAMS : 

l)ed  of,  may  be  planted  after  license  obtained,  2372.  ■ 

county  commissioners  inay  survey,  2374. 

only  one  allowed  a  person  in  same  county,  2372. 

party  can  not  stake  off.  natural  bed,  2372. 

staking  off  natural  bed  forfeits  license.  2374. 
beds  entered  as  vacant  land,  how,  2370. 
close  season  on  taking,  2423. 

county  commissioners  may  have  beds  surveyed,  2374. 
entered  beds,  liable  to  taxation,  2380. 
grant  of  land  for  cultivation  of,  2376. 

issued  by  secretary  of  state,  2378. 

price  paid  for  beds  per  acre,  2379. 

restrictions  and  conditions  of,  2378. 
state  controls  all  clam  beds,  2375. 
taking,  in  certain  counties,  from  .Vjiril  1  to  Nov.  1.  misdemeanor,  242.3. 

CLERGYMEN  :     See  Minister  of  the  Gospel. 

CLERK,  SUPERIOR  COURT : 

acting  without  giving  bond,  misdemeanor.  ,3505. 

acts  as  commissioner  of  affidavits,  925. 

administration  accounting  compelled  by,  1(14-131.     See  .\diininstration. 

final  settlement  approved  by,  150-154. 
administrator,  etc.,  removed  by,  31,  34,  35,  37,  .38. 
admitting  funds  in  his  possession,  judgment  by  court,  S.">o. 
after-boi-n  child's  interest  cared  for  liy,  138-143. 
nmcrred  for  f.-iilure  to  deliver  instruments  to  register,  2(i."(0. 
annual  report  of:  apiiroved  and  published,  918,  919,  1380. 

compelled  bow,  920,  1381. 
appeal  from,  on  administration  account  stated,  119.  12i>. 

on  matters  of  law.  C.lO-Ol.S. 
appeals  to  supreme  court:  duties  as  to,  591.  .592,  1280. 

when  supremo  court  certifies  decision  down,  clerk's  diity.  3283. 
appointed  by  judge  of  dislrh't.  when.  892,  893,  89.'i. 


INDEX. 

ILEUK,  SUPERIOU  COURT— con* mwed!; 

apiJoints  :  substitute  trustee  or  mortgagee,  wheu,  1038. 

county  commissioner,  in  case  of  vacancy,  1314. 

justice  of  tLe  peace,  when,  1411. 
apprentices  indigent  cliildren,  184-206.     See  Apprentice, 
bill  of  cost  itemized  by,  in  criminal  cases,  1256,  1306. 

in  civil  cases,  1252. 
blanlis,  etc.,  furnished  litigants,  etc.,  by,  911. 
bond  of;  approval  of;  term  of,  295,  296,  311,  1318  (23). 

failure  to  give,  office  declared  vacant,  892. 

filed  with  register  of  deeds,  296. 

security  iu  lieu  of,  268,  271. 

surety  companies  may  give,  273. 
books  to  be  kept  by,  913,  915,  3598. 
certain  books  indexed,  etc.,  896. 

commissioners  to  take  probates  in  other  states,  appointed  by,  991. 
compensation  of,  for  keeping  certain  funds,  152. 
condemnation  proceedings :  jiu-isdiction  in.  2.579-2598. 
contempt ;  clerk  can  punish  for,  942. 

contested  election  ;  duty  of  clerk  when  .iudgment  rendered,  837. 
costs ;  bill  of,  in  criminal  cases,  prepared  by,  1256,  1306. 

civil  cases,  itemized  and  attached  to  execution,  1252. 

clerk  must  enter  all  costs  in  judgment,  1255. 
county  commissioners ;  vacancy  in  board  of,  filled  by,  1314. 

furnish  clerk  with  stationery,  books,  etc.,  896. 
"court"  means  "clerk"  when,  352. 
criminal  statistics  forwarded  by,  to  attorney  general,  917. 

penalty  for  failing  to  forward,  917. 
custodian  of  county  official  bonds,  except  his  own,  311,  915. 
session  laws,  supreme  court  reports,  etc.,  3598. 
depositions  taken  by  commission  from,  1645-1652.     See  Depositions. 

passed  upon  by  clerk,  1052-1654. 
deputies  of;  appointment,  898. 

administer  oaths,  2359. 

clerk  liable  for  acts  of,  900. 

jirobates  adjudicated  by  and  deed  ordered  registered,  999. 

record  of  appointment  and  discharge,  899. 

subject  to  same  laws  as  clerks,  900. 
disposing  of  books,  etc.,  belonging  to  office,  misdemeanor,  3598. 
disqualifications  removed  by  agreement,  903. 
disqualified ;  for  license  to  practice  law,  210. 

for  commissioner  in  partition  proceedings.  902. 
hearing  proceedings  in  certain  cases,  902-904. 
dockets :  appeal  from  justice's  judgment.  608. 

stay  of  execution.  621. 
election  of,  when  and  how,  890. 

election  returns :  refusing  to  give  copy,  misdemeanor.  3398. 
embezzling  funds  or  property  of  office,  felony,  3408. 
estates  of  idiots,  lunatics,  etc. :  duty  as  to.  ]  890-1 90.8. 
execution ;  clerk  issues,  when,  G18. 
•     penalty  for  failure  to  issue,  618. 

return  of,  docketed ;  penalty  for  failure,  630. 

stayed ;  clerk  enters  on  docket,  621. 
executor  in  will,  disqualifies  from  acting  as  clerk  as  to,  902  (3). 
fee  bill ;  clerk's  duty  to  keep,  posted,  2774. 
fees  of,  in  the  different  cases,  266,  1234,  2373.  2377. 
fines,  iienalties.  etc.,  itemized  statement  to  be  kept  by,  1377. 
forfeits  his  office  on  account  of  absence.  909. 

guardianship  of  orphans ;  duties  as  to.  1758.  1766-1776.     See  Guardian, 
guilty  of  infamous  crime ;  removed  from  office,  894. 
Indigent  children  paid  b.v,  when,  924. 
insane  person,  nonresident,  knowingly  committed  to  hospital  by,  3.591. 

1187 


INDEX. 

CLERK,  SUPERIOR  COVRT— con  tin  lied  : 

insolvent  debtors ;  duty  as  to  discbarge  of,  1915-1949. 
interest  in  estate  bars,  from  acting  with  reference  to,  902. 
interlocutory  orders,  etc.,  duty  to  adjust  costs  in,  when,  1255. 
inventory  of  decedent's  estate  compelled  by,  43. 
issues  of  fact  transferred  by,  to  ti-ial  doelvet,  717. 
judge  exercises  powers  of,  when,  905. 

judgments ;  duty  as  to.  in  general.  .572.  575,  579,  7S2,  1955,  1956. 
of  corporation  dissolution,  duty  as  to,  1211. 

justice  on  appeal,  disposed  of  ;  clerk's  duty,  1479. 
jm'isdiction  of,  352,  358,  901. 

administration  of  estates,  16,  17. 
juror's  fees  paid  by,  to  treasurer,  when,  922. 
jury  sworn  by,  1960. 

record  of  jurors  kept  by,  19S1. 
justices ;  list  of,  to  be  sent  secretary  of  state  by,  916. 
judgment  of :  filing  and  docketing  by  clerk,  1479. 
on  appeal,  disposed  of,  clerk's  duty,  1479. 
keeps  certain  records  and  reports,  915. 
leave  of  absence  obtained,  bow,  b.v,  910. 
letters  of  administration  ;  issued  by,  3-36. 

party  entitled  not  applying,  citation  issues,  12,  13. 
revoked,  issued  to  others,  35. 
liability  of ;  for  defaults  concerning  guardianships,  1784.  1785. 
safe-keeping  of  records,  etc.,  913. 
on  bond,  for  administration  funds,  152. 
license  issued  by,  to  nonresident  hunters,  1874. 

to  plant  oyster  beds,  2373. 
malpractice  of,  in  office ;  penalty,  894. 
money  in  hands  of;  duty  to  pay  person  entitled.  921. 

not  called  for,  used  by  county,  923. 
names  of  persons  changed  ;  duty  as  to,  2147,  2149. 
nol.  pros,  with  leave  entered ;  duty  of,  3273. 
notary  public  ex  officio,  2349. 
oath  of,  891,  2357,  2358,  2360. 
office  of,  kept  at  courthouse,  909. 
examined  by  solicitor.  897. 
furniture  furnished  by  commissioners,  896. 
hours  open,  909. 

permission  for  absence  from.  910. 
official  papers,  etc.,  duty  to  receive  from  predecessor,  906. 
orders,  deeds,  etc..  to  registration,  999,  1001. 
papers,  books,  etc.,  filed  by.  912. 
partition  proceedings ;  clerk  can  not  be  commissioner  in,  902. 

clerk's  duties  and  powers  in,  2485-2520.     See  Partition, 
penalty  against,  for  failing  to  report  criminal  statistics,  917. 
failing  to  docket  execution  return,  636. 

furnish  names  of  liquor  dealers  to  grand  jury,  2827. 
issue  execution,  618. 
settle,  on  notice,  1302. 
transfer  records  to  successor,  907. 
power  of  sale  in  mortgage  in  lieu  of  bond  executed  by,  265.  2l!6. 
powers  of.  generally.  901,  942. 

when  disqualified  to  exercise,  who  does,  902,  905. 
disqualification  waived,  when,  903. 
practicing  law  while  holding  office,  a  misdemeanor,  3641. 
probate  judge's  duties  performed  by,  889. 

probate  of  deeds:  nonresident  taking,  clerk's  certlflente  rpq\iired,  1007. 
passed  on  by  clerk.  999,  1001. 
validated,  where  clerk  was  party,  1011,  1015. 
when  clerk  is  a  party,  995. 
of  will,  3122-3134. 

1188 


INDEX. 

CLERK,  SUPERIOR  COURT— continued : 

refusing  to  turn  over  moneys  to  county  treasurer ;  effect,  1407. 

books,  etc.,  to  successor,  3598. 
registering  physicians  illegally,  3647. 
relation  to  partj-  to  proceeding,  disqualifies  to  act,  902. 
remits  forfeiture  on  recognizance,  when,  3221. 
removal  from  office  for  malpractice,  etc.,  894. 
removal  of  proceeding  from,  when  interested,  904. 
reports  of ;  certain,  required.  916,  917. 
resigns,  to  whom,  893. 

return  of  execution  docketed  by,  on  judgment  docket,  636. 
sales,  administration ;  duties  relative  to,  01-86,  171. 
sentence,  copy  of,  furnished  manager  of  workhouse,  1369. 
special  proceedings ;  duty  to  adjust  costs  in,  when,  1255. 
successor  to  ;  clerk's  duty  to  transfer  records  to,  907. 
supervisors  of  roads,  reports  of ;  duties  as  to,  2713. 
supplemental  proceedings :  duty  in,  607-684. 
surveys  or  plots ;  errors  in.  corrected  by  petition  to,  1738. 
swearing  falsely  to  certain  statements,  misdemeanor,  3605. 
term  of  office  of,  890. 

transfer  of  records  to  successor  by,  compelled,  907. 
transfers  issues  of  fact  to  civil  issue  docket,  529,  588,  717. 
trustee  dying  or  removed,  clerk  appoints  successor,  1037. 
unperformed  duties  on  going  out  of  office,  who  assumes,  908. 
vacancy  in  office,  how  filled,  895. 
wife  of ;  named  as  executor,  disqualifies  clerk  to  act  as  to,  902. 

party  or  witness  to  deed,  disqualifies  clerk  to  probate,  902. 
will ;  probate  of,  what  clerk  nmst  ascertain  on,  3125. 

production  of.  compelled  by,  3124. 
witness  tickets  issued  by,  to  witnesses,  when,  1299. 
witnesses'  fees  paid  by,  to  treasurer,  when,  922. 
witnesses  subpoenaed  by,  1639.  1640,  1856. 

CLERK,  SUPREME  COURT : 

accounts  to  court  for  money  In  hand,  1.554. 

bond  of,  290,  265,  273. 

chosen,  how,  1553. 

decisions  of  court  certified  to  court  below  by,  1549. 

penalty  for  failure  to  certify  in  time,  1549. 
execution  for  costs  issued  by.  when.  1549. 
fees  of  witnesses  to  supreme  court  taxed  bv,  1547. 
oath  of,  290,  2357,  2358,  2360. 
office  of.  kept  where,  290. 

opinions  and  judgments  rendered,  clerk's  duty,  1548. 
practicing  law  in  state  courts,  misdemeanor,  3641. 
records  proceedings  in  cases,  when,  1550. 
rules  of  practice  certified  by.  to  superior  court  judge,  1.541. 

CLIENT :     See  Attorney  at  Law. 

CLOUD  UPON  TITLE : 

action  for  removal  of,  1589. 

CLOSE  SEASON: 

for  fishing.     See  Fishing. 

hunting,  1881-1889.     See  Hunting, 
taking  clams,  2423. 

diamond-back  terrapin,  2370. 
oysters.  2414,  2383. 

CODE  OF  CIVIL  PROCEDURE:     See  Civil  Procedure. 

1189 


INDEX. 

COLLECTOR  OP  DECEDENT'S  ESTATE  : 
accouuts  to  successors  :  enforced,  25. 
action  against;  on  bond,  30. 

by  successor,  31. 
administration  of  estate.     See  .\dniinlstrntion. 
appointment  of,  22. 
bond  of,  23,  265,  273,  319. 
action  on,  30,  31. 

barred  as  to  principal,  393. 
sureties,  893. 
failure  to  give,  letters  revoked,  34. 
mortgage  in  lieu  of,  265. 
renewal  or  increase  of,  required,  32. 
surety  company  may  give.  273. 

expenses  of  bond  paid  by  estate.  277. 
surety  on,  released  bow.  33. 
commissions,  eutitled  to,  149. 

costs;  liable  for,  for  suing  or  defending  in  bad  faitb.  1277. 
joint  tenant  witb  other  representative,  106. 
letters  revoked  ;  for  disqualiUcation  or  default,  38. 
for  failing  to  give  bond,  34. 

file  inventoiw,  43. 
will  being  found  and  proven.  37. 
liability  of;  for  conversion,  107. 
for  costs,  when,  97. 

selling  personalty  out  of  time,  06. 
waste,  167. 
oath  of,  29. 
powers  of,  generall.v,  24. 

cease,  when,  25. 
qualifications  of,  23. 
sale  of  personalty  b.v,  under  order,  61. 

COLOR  OF  TITLE : 

adverse  iiossession  witb,  gives  ownership,  when,  333,  .3S2.  .384. 

deed  is.  when  registration  desti'oyed,  .3.33. 

grant  issued  not  color,  when,  1699. 

seven  years'  adverse  possession  witb,  gives  title,  when,  382. 

twenty-one  years'  adverse  possession  witb.  gives  title,  when.  .380, 

COLT : 

lien  on,  for  season,  2024,  2025. 

COMMERCI.VL  FEEDING  STUFF  :     See  Food. 

COMMISSIONER  OF  AfiRICULTURE  :     See  Volume  II. 
salary  of;  paid  how,  2749. 

COMMISSIONER  OF  LABOR  AND  PRINTING:     See  Voluino  II. 
compensation  of  assistant  to,  27-53. 
salary  of,  and  exi)enso  allowance,  2753. 

COMMISSIONERS.  COUNT\  :     See  County  Connnissioners. 

COMMISSIONERS  OF  AFFIDAVITS: 

appointed  liy  governor ;  term ;  powers.  920. 
appointment  of;  where  recorded.  928. 

certified  to  clerks,  928. 
clerks  and  notaries  autliorized  as,  92.5. 
clerks  of  courts  of  i-ecord  of  other  states  are,  9.'{1. 
fees  of,  2796. 

1190 


•  mcEX. 

(,'OMMISSIONERS  OF  AFFIDAVITS— co»<m«C(J; 
list  of,  published  in  public  session  laws,  929. 
conclusive  evidence  of  appointment,  930. 
powers  of,  926,  927. 
qualify  how,  927. 

COMMISSIOXEKS  OF  WRECKS:     See  Volume  II. 
bond  of,  305. 
oath  of,  2357.  2358.  2360. 
resisting  or  obstructing,  in  discharge  of  duty,  misdemeanor,  3.564. 

COMMITMENT  TO  PRISON: 

contains  what,  when  prisoner  charged  with  crime,  3230. 

jail  unsafe,  prisoner  committed  to  adjoining  coimty,  1350. 

justice's  commitment  to  county  prison,  3259. 

"month"  defined  us  to,  283  (12). 

no  jail,  commitment  to  another  county,  1.3.50. 

vagrants  committed  to  workhouse ;  procedure,  1369. 

what  jail  prisoner  committed  to,  .8231. 

witnesses  committed  to  jail  when,  .3232. 

COMMON  CARRIERS : 

canal  companies.     See  Canal  Companies, 
express  companies.     See  Express  Companies, 
railroad  companies.     See  Railroads, 
steamboat  companies.    See  Steamboats, 
street  railway  companies.     See  Street  Railways. 

COMMON  LAW : 

declared  to  be  in  force,  932. 

proof  of.  existing  in  another  state.  1.504. 

COMFENSATION  :     See  Fees,  Salaries. 

COMPLAINT : 

allegations  In,  not  denied,  admitted,  503. 
arrest  and  bail :  facts  necessary  to  state  in.  625. 
claims  against  countj-;  facts  stated  in,  1.384. 

must  be  verified,  1384. 
contents  of,  467,  468,  1459. 
contested  election ;  complaint  tiled  when,  834. 
creditors',  in  action  against  heir,  52,  .53. 
demurrer  to.  on  what  grounds,  474. 
devisees',  in  action  for  contribution.  58. 
filed  when,  466.  422   (5),  714. 

failure  to  file  in  time,  nonsuit,  715. 
form  of ;  generally,  467. 

in  action  on  county  claims,  1384,  1.385. 
gi-ants :  vacating;  must  state  what  in  action.  1748. 
heirs',  devisees',  etc..  in  action  for  contribution,  .58. 
irrelevant  and  redundant  matter  stricken  out  of,  406. 
joinder  of  cau.ses  of  action  in,  469. 
judgment  limited  to  demand  in,  when,  565. 
justice's  court ;   complaint  in,  contains  what,   14.59. 
landlord's,  in  action  for  ejectment  of  tenant,  '2002. 
legatees',  in  action  for  contribution,  58. 
libel  and  slander;  states  facts  how,  501. 
mandamus  proceedings ;  complaint  must  lie  verified.  822. 
party  in  interest  must  lie  shown  by.  282. 
purchase  money  of  land,  how  set  forth  in.  468. 

ii'.n 


INDEX. 

COMPLAINT— co)iii««crf  ; 

quo  warranto ;  how  framed  so  as  to  arrest  defendant,  831. 
railroad  sued  for  loss  or  damage  of  freight.  2G34. 
service  of,  in  action  trying  title  to  office,  83-4,  838. 
siuiimous  served  with,  in  quo  warranto,  838. 
widow's  year's  allowance:  louqilaint  for,  3100. 

COMPROMISE  : 

conditional  tender  of  judgment  for  damages,  861. 

refusal ;  effect  of,  862. 
eflfect  of,  859. 

evidence  of  tender  not  comj)etent,  SCO. 
landlord  and  tenant,  in  ejectment,  2007. 
less  amount  pays  debt,  when,  859. 

plaintiffs  tender,  when  counterclaim  exceeils  his  claim,  860. 
tender  of  judgment  for  plaintiff's  claim.  860. 

effect  of  refusal,  860. 

judgment,  when  accepted,  860. 

for  ti'espass,  defendant  disclaiming  title  to  land,  863. 

CONCEALED  WEA-PONS : 

carrying  off  one's  premises,  misdemeanor ;  exceptions.  3708. 

CONDEMNATION  PROCEEDINGS : 

answer  to  petition  for.  filed  when,  '2584. 
appeal  taken  in  :  what  done,  1576,  2587. 

company  takes  possession,  pending,  2587. 
burial  grounds  not  subject  to,  2578. 
change  of  ownership  of  land :  effect  on.  2,594. 
commissioners  for,  appointed  by  order,  2584,  2592. 

compensation  of.  2790. 

powers  and  duties,  1576,  2585. 
condemnation  refused  by  court ;  effect,  2587. 
costs  paid  by  whom,  2587,  1269   (3). 
dwelling  not  subjec't  to,  2578. 
eminent  domain;  who  has  right  to,  1097   (3),  1.573,  1686,  2141-214.").  2.575, 

2691.  .'iOCiO.  .'1062. 
infants,  etc..  title  of.  acquired  how,  by,  2.500. 
judgment  condenniing ;  effect  of,  2587. 

juiy  ti'ial  denian<led  on  appeal  to  superior  court,  when,  2.588. 
land,  width  of,  condemned,  2597. 
map  of  route  wanted  served  with  iietitidii.  2500. 
money  paid  as  damages:  conflicting  claims  for.  settled  how.  2591. 
order   for   condemnation,   what  contains.   2.584. 
petition,  contents  of,  2580. 

filed  where,  1574.  2580. 

served  how,  1575,  2580-2582. 
l)ro<-edure  when  general  rules  insufficient,  1576.  2,592,  2.593. 
process  in,  served  as  coiirt  orders,  when,  2583. 
report  of  commissioners,   filed  w-lien.  1576.  2.585. 
form  of,  2586. 

excejitions  to :  and  appeal  from  clerk's  decision.  2587. 
sunnnons,  how  served  and  when,  1575,  2580-2582. 
telegraph,  etc.,  comjianies  same  rights  to.  as  railroads,  1576, 
title  to  right  of  way  conveys  what,  2587. 

defective  title  acqnire<1,  cured  how,  2595. 
unknown   parties  to.  protected  by  court.  2592. 
wlio  lias  right  to  resort  to,  1097  (3),  1.57.3,  1.574,  -2.57.5. 


INDEX. 

CONDITIONAL  SALES  : 

personal  property  ;  registration  required,  where,  083. 
railroad  rolling  stoclv,  etc. ;  registration  required,  084. 

CONDITIONS  PRECEDENT : 
plaintiff  pleads,  bow,  498. 
taxpayer  must  show  tax  paid  to  defeat  tax  title,  2909. 

CONFEDERATE  CURRENCY : 

scale  of  depreciation  of,  where  contracts  solvalile  in,  1G59. 

CONFESSION  OF  JUDGMENT: 

fine  and  cost  secured  by ;  defendant  not  discharged,  1293. 
negotiable  instrument  law  does  not  enforce  agreement  for,  2346. 
procedure,  581,  .582. 

debtor  files  verified  statement,  581. 

judgment ;  execution,  582. 
when  can  be  made,  and  for  what,  580. 

CONNOR  ACT: 

registration  of  conveyances,  leases,  etc.,  necessary,  when.  980,  981,  985,  91 

CONSANGUINITY  :     See  Marriage ;  Next  of  Kin. 

CONSENT,  AGE  OP : 

carnal  knowledge  of  female  between  10  and  14:  felony.  3348. 
marriage  to  female  under,  misdemeanor.  3308. 

CONSIGNEE . 

embezzliiig  property  consigned  to  him,  a  felony,  3406. 

CONSPIRACY  :     See  Crimes  and  Punishments. 

CONSTABLE : 

action  against,  for  trespass  under  color  of  oflice,  barred,  397. 
allowing  prisoner  to  escape;  penalty,  3577. 
amercement  of ;  for  failing  to  indorse  process,  3149. 

for  failure  to  pay  costs  on  execution  to  clerk,  640. 

making  no  return  or  false  return  of  process,  2817,  3604. 
bond  of,  302,  308,  2940. 

fees  for  proving  and  registering,  302,  308. 

mortgage  in  lieu  of,  265. 

surety  company  can  give,  273. 
collection  of  claims ;  con.stabIe  not  duly  diligent,  liable.  286. 
election  of :  term  of  ofl3ce,  933,  2925. 
fees  of,  2777,  2787. 
game  wardens  act  as,  when,  1868. 
gaming  tables;  constable  required  to  destroy,  3720. 
.iail  unsafe,  or  no  jail ;  constable  commits  prisoner  where.  1.349,  1350. 
jurors ;  duty  of  eonstatjle  to  summon,  1434. 
oath  of,  934.  2357.  2358,  2360.  2938. 
powers  of,  937,  2939. 

process  executed  by,  937,  038.  2817.  2939.     See  Process, 
removal  of,  out  of  township,  forfeits  office.  936. 
road  overseers  served  by,  with  notice  of  appointment.  2714. 
settlement,  etc.,  of  taxes,  etc.;  failure  to  make;  misdemeanor,  3600. 
special ;  appointed,  when  and  by  whom,  935. 

swearing  falsely  to  statement  required  by  law ;  misdemeanor.  .S60.">. 
taxes;  failing  to  settle,  after  notice,  penalty,  1302. 
town  constable ;  powers ;  tax  collector.  2030.  2040,  2072. 
trea.surer  demanding  public  moneys  of,  effect  of  refusal,  1398  (3).  1407 
vacancy  in  office  of,  filled  by  county  commissioners,  936,  1321. 

1193 


II^DEX. 

CONSTRUCTION  OF  STATUTES :     See  Statutes.  Construction  of. 

CONTAGIOUS  DISEASES:     See  Crimes  and  Punisliments. 

CONTEMPT : 

administrator,  etc.,  failing  to  account,  punisbed  for,  100. 

adverse  party  refusing  to  testify ;  punished  as  for,  869. 

attorney  guilty  for  refusing  to  expose  client's  fraud,  etc..  when.  10)20. 

committed  outside  of  court's  presence :  proce<lure,  943. 

common  law  of,  repealed.  939. 

corporation  commission's  power  to  punish,  1067. 

countj-  commissioners  may  punish  for,  when,  131S   (22). 

defined.  939. 

judgment  or  order  of  court,  failure  to  obey,  punished  as  for.  61.'>. 

justice  not  returning  examinations,  recognizances,  etc.,  attached  as  for. 

320G. 
offenses  punished  as  for ;  procedure  on,  944,  94.5. 
profane  swearing  in  hearing  of  justice's  court,  1426. 
punishment  for,  940. 

summarily ;  procedure,  941. 

record  of.  I^ept:  attached  1o  comniittal,  041. 
supplemental  proceedings ;  disobedience  of  orders  in.  684. 
trustee  failing,  after  order  made,  to  pay  over  trust  fund,  851. 
what  constitutes,  939.  944. 
who  may  punish  for.  942.  1007,  1318  (22). 
will ;  party  refusing  to  produce  punished  for,  3124. 
witness  punished  for,  for  refusing  deposition,  1649,  16."i.i. 

CONTESTED  ELECTIONS  : 

arrest  of  defendant  in  certain  eases,  831. 

attorney  general  grants  leave  to  contestant  to  sue,  828-.S.SO.  . 

leave  withdrawn,  830. 
l)i)nd  of  jirivate  relator  contesting  office,  828-830. 
burden  of  proof  in,  2368. 

clerk's  duty  to  issue  writ  to  enforce  judgment,  when.  837. 
contest  begun  bow,  827,  828. 

must  begin  within  ninety  days,  when,  8.34. 
corporate  election  of  directors  contested,   1189. 
defendant ;  bond  of.  before  answering,  835. 

fined,  when,  837. 

refusing  books,  etc.,  of  office  to  person  entitled.  3601. 
depositions  taken  in.  how,  16.')4. 
dismissal  of  action  for  insufficient  bond,  830. 
emoluments  of  contested  office.  835-837.  842.  844. 
execution  stayed,   how.   pending  appeal  of  defendant.  .«42. 
judgment  in.  837,  8.39,  840. 

enff)rced  by  writ  of  mandamus,  841. 

filed  ;  duty  of  clerk  to  issue  writ  to  put  into  jiossession,  837. 
leave  granted  to  ])rivate  relator  to  liring  contest,  828-8.30. 
limitation,  statute  of.  l)ars  action  when.  834. 
person  olitaining  judgment  inducte<l   Into  office:  duty.  843. 
person  successful  may  have  action  for  damages.  844. 
quo  warranto  pro<ee(l!ngs.     See  Quo  Warranto, 
salaries  and  fees  of  office  go  to  whom.  .S3.^-S37.  S42.  844. 
stay  of  execution  after  judgment  in.  842. 
trial  of,  when.  833. 

CONTlNfiENT  ESTATES  : 

contingent  limitations  construed,  liow,  1.">81. 
contingent  remainders  sold,  how,  1590. 

prior  sale  of,  valid;ited  when.  1.591. 
tenancy  by  curtesy,  2102. 

1194 


INDEX. 

CONTINUANCE : 

allowed  wbeu.  530-532. 

before  tei-m  ;  affidavit  for,  530. 

counter  affidavits,  532. 
during  term  ;  affidavit  for,  531. 

counter  affidavits,  532, 
justice  granting,  bail  allowed  prisoner,  when,  3213. 

CONTRACTS : 

accounts  for  goods  sold  by,  1622-1625. 
actions  on :  barred  when,  390-393,  395,  396. 

joint  and  several  debtors  sued,  455-457. 

jurisdiction  of  courts  in,  1419,  1500-1.505. 

parties  to,  412,  413. 

usurious ;  costs  not  allowed  plaintiff,  1271. 

venue  of,  424. 
admission  of  genuineness  of,  procured  from  defendant,  1656-1C58. 
aliens,  eonti-acts  of,  validated,  183. 
bonds  of  officers,  fiduciaries,  etc.,  265-324. 
book  accounts,  1022,  1623. 
certain,  must  be  in  writing,  974-978.     See  Frauds,  Statute  of. 

"in  writing"  defined,  2831   (10). 
compromise  agreements,  859-863.     See  Compromise, 
conveyances.  940-1046.     See  Conveyances, 
corporate  ix)wers  as  to,  1128,  1129. 
county  commissioners"  power  to  make,  1318. 
debt  due  by.  bears  interest,  when,  1954. 

debtors  on  joint  aud  several,  bow  served  with  summons,  455-457. 
decedent's,  to  convey  land :  deed  made  how.  83. 
directors,  state  institutions,  can  not  make,  for  own  benefit,  3572. 
futures ;  certain  contracts  for  futiu-e  delivery  void,  1690. 
gaming;  void,  1087-1691.     See  Gaming  Contracts, 
guardian's,  for  ward,  1787-1790. 
husband  and  wife ;  conti'aets  between,  2107,  2108. 
indentures  apprenticing  child.  197-206.     See  Apprentice, 
insurance  agents ;  contracts  to  restrict  compensation  of,  void,  3491. 
interest  on,  19.54. 

landlord's,  with  tenant.     See  Landlord  and  Tenant, 
liens  generally.     See  I.ien. 

married  woman's,  validity  of,  2094-2097,  2101.  2113. 
municipal  corporations ;  powers  to  make.  2910. 
new,  to  revive  debt,  must  be  written,  371. 
notes,  etc.     See  Negotiable  Instruments. 
ofBc-es.  public :  contract  for  sale  of,  void,  2366. 
parties  In  action  on,  may  agree  as  to  amount  of  damages,  861. 
partnership,  2523-2532,  2543,  2544. 
proof  of.  otherwise  than  by  attesting  witnesses,  1004. 
railroads  making:  as  to  rates  between  one  another.  1108. 

so  as  to  give  shipper  advantage  over  another,  penalty,  2503. 
registration  of ;  require<l,  when,  979-988.     See  Registration. 

burned :  procedure  to  revive.     See  Burnt  and  Lost  Records, 
sale;  contracts  of.     See  Sales, 
suretyship.  2,840-2818.     See  Surety. 

tenant  or  cropper  violating,  in  certain  counties;  effect,  20<n.  3306,  .3367 
usurious:  penalty  for.  1951. 

CONTRIBUTION : 

corporation  officers,  etc.,  have  right  of.  when.  ll.'O. 
decree  of.  when  after-born  child  provided  for.  141. 
devisees,  legatees,  etc.,  must  make,  when,  ."S. 
land  specifically  devised  sold  to  pay  debts,  devisee  has.  86. 

1195 


INDEX. 

CONTfilBUTION— t-on  f  )Vi  ued : 

owelty  of  partition,  2491,  249G,  2497. 

settlement  among  devisees,  etc.,  forced  by  executor,  when,  143. 

sureties  have  right  of,  when,  2844. 

CONTRIBUTORY  NEGLIGENCE : 
pleaded  and  proven,  483. 

CONTROVERSY  WITHOUT  ACTION: 

affidavit  as  to  genuineness  of  controversy,  803. 
corporation  commission  acts  as  arbitrator,  when,  1073. 
court  may  determine,  414. 
.ludgment,  803. 

appeal   from,  how  taken,  805. 

enforced,  805. 

roll  contains  what,  804. 
submitted  how,  803. 

CONVERSION:     See  Embezzlement, 
action  for,  barred  when,  395. 
defendant  may  be  arrested  in  action  for,  727. 
personal  representative  liable  for,  167. 

CONVEYANCES : 

acknowledgment  of  execution  of.     See  Probate. 

assignment  for  benefit  of  creditors,  907-973. 

attornment  unnecessary,  when,  947. 

bona  fide,  to  innocent  purchasers,  good  against  creditors,  964. 

burnt  or  lost,  certified  copies  evidence,  327. 

collateral  waiTanties  abolished,  1587. 

conditional  sales  of  personal  property,  983,  984. 

constable's,  of  property  sold  by  him,  950-951,  2905. 

construction  and  interpretation  of — 

attornment  not  necessary,  947. 

boundaries  not  going  entirely  aroiuid  land,  948. 

certain  contingent  limitations,  1.581. 

description  using  the  word  "adjoining"  Instead  of  "bounded  by,"  948. 

estates  in  tail  converted  into  fee-simi>Ie.  1578. 

fee-simple  estate  conveyed  without  word  "heirs."  when,  946. 

"heirs"  of  living  person  means  children,  1582. 

.ioint  tenancy :  survivorship  abolished,  1579. 

slaves :  deed  of  gift  made  to,  passes  what,  949. 

wills  construed  how.  3138-3146. 
conti-act  to  convey  land  by  husband  and  wife,  952,  1003.  1004. 
copies  of ;  received  as  evidence,  when,  988,  1.598,  1.599. 
corporations',  of  land,  1130. 

void  as  to  certain  torts,  11.30. 
description  of  land  in,  vague,  not  fatal  error.  948. 
destroyed,  and  record  destroyed,  how  lioundaries  established,  328. 
devisee's,  within  two  years  from  letters  granted.  70. 
evidence:  grants,  deeds  and  wills  as,  1.590-1014.    See  Evidence, 
executed  ;  by  public  officer  after  term  expires,  when,  950,  2905. 

by  sheriff.     See  under  this  head,  Sheriff. 

to  stay  proceedings  on  ajipeal.  GOO. 
execution  sale:  purchaser  at,  entitled  to,  651. 
fee-simple  estate  passes  without  word  "heirs,"  when,  946. 
forgery  of.  a  felony,  3424. 

fraudulent,  generally,  960-966.     See  Fraudulent  Conveyances, 
genuineness  of;  admission  of,  iirocure<l  how.  1658. 
grants.  1692-1757.  2370-2379.     See  Grants, 
guardian  appointed  b.v  deed,  when,  1762. 

1196 


INDEX. 

CONVEYANCES— co««m«ec?; 

guardian's,  of  ward's  property,  1789,  1798. 
heirs,  within  two  years  of  letters  granted ;  effect,  70. 
homestead  conveyed,  judgment  may  be  satisfied,  when,  68G. 
husband  and  wife;  conveyances  by,  952-058,  209G,  2097,  2107,  2108. 

acknowledgment  by,  at  different  times,  etc.,  953. 

attorney  in  fact  may  convey  for,  when,  95'7. 

contract  to  convey,  952. 

effect  of  wife's  joining  in  husband's  conveyance,  3086. 

executed  and  proven,  how,  952,  1003,  1004. 

"heirs"  of  living  person  mean  children,  1583. 

husband  may  execute ;  when  wife  lunatic,  959. 
effect  on  wife's  rights,  954,  959,  3085. 

mortgage  or  ti-ust  deed  to  secure  purchase-money,  958. 

probate  of,  952,  958,  1003,  1004.     See  Probate. 

to  one  another,  2107,  2108. 

wife  need  not  join  in  purchase-money  mortgage,  958. 
infant's  conveyance  as  trustee,  how  made,  1036. 
infant,  unborn,  may  take  by  deed,  1582. 
Innocent  purchasers  for  value ;  protected,  961,  964,  965,  980. 
insane  person's  property  sold  and  conveyed,  how,  1896-1898. 
judgments  have  force  of,  when,  566,  567. 
landlord's  lease  to  tenant.     See  Landlord  and  Tenant, 
life  tenant's  remedy  against  grantee  of  reversion,  1586. 
lis  pendens;  effect  of  on,  460-464.     See  Lis  Pendens. - 
livery  of  seizin  supplied  by  probate  and  registration.  979. 
lost ;  when  executed  by  slieriff,  etc.,  re-executed,  336. 
marriage  settlements,  void  as  to  existing  creditors,  963. 
married  woman's,  952,  1003,  1004,  2096,  2097,  2117,  3086. 
mayor  executes,  to  town  property  sold,  2980. 
mortgages ;  of  persona!  property,  1030-1041.     See  Chattel  Mortgage. 

of  real  property.     See  Mortgages, 
must  be  in  writing,  when,  976. 

"in  writing"  means  what,  2831  (10). 
officers  going  out  of  office  execute,  how,  950,  9.51. 
parol,  to  slaves,  validated  when,  949. 
partition  of  land ;  deeds  made,  etc.,  2501. 

power  of  attorney  executed  by  husband  and  wife,  952,  1003,  1004. 
private  examination  of  wife,  952,  958,  1003,  1004.  See  Probate, 
probate  of,  989-099.    See  Probate. 

forms  of,  1001-1007.     See  Probate. 

invalid  probates  validated,  1008-1030.     See  Probate, 
production  and  inspection  of,  on  notice,  1656-1658. 
prohibited  by  judge  in  supplemental  proceedings,  when,  673. 
propertj'  conveyed  in  trust.     See  Trust  Deed, 
real  property,  must  be  written,  except  certain  leases,  976. 
registration  of ;  979-988,  999,  1001,  2655-2665.     See  Registration. 

certain  defects  in  probate  and,  remedied,  1008-1030. 
remainders  and  reversions  conveyed ;  attornment  umiecessary,  947. 

grantee  of,  has  same  remedies  as  grantor,  1.585. 
religious  societies  convey,  how,  2673. 
revocation  of,  granting  estate  in  future,  how,  1045. 
sheriff;  furnishes  deed  to  purchaser  at  execution  sale,  651. 

executes  after  going  out  of  office,  when,  950. 

successor  to,  executes  when,  951. 

tax  deed  executed  by.  when,  2905,  2907. 
spendthrift  trusts  authorized  by,  1588. 
tax  deeds  executed  when  and  by  whom,  2905-2907. 
titles  quieted,  how,  1589. 
trust  deeds.     See  Trust  Deed. 

powers  of  sale  in,  executed  how,  1031-1037. 

1197 


INDEX. 

CONVEYANCES— fon<(H!(C(?; 

uuborn  iufaut  takes  by  deed,  1582. 

uses ;  couveyance  to,  iK>ssession  deemed  transferred,  1584. 

warranties ;  collateral,  abolished,  1.5S7. 

wills,  3111-3146.     See  Wills. 

OONA'ICTS  :     See  County  Convicts. 

aiding,  in  assault  or  insurrection,  misdemeanor,  3GG2. 

confining,  in  improper  apartments,  3660. 

conveying  to.  weapons  or  instrument  for  escape,  3002. 

murder  or  assault  following,  person  conveying  punished,  how.  3662. 
county  convict  force  worked  on  public  roads,  1355. 
escape  of ;  by  breaking  prison,  misdemeanor,  3057. 

hired  out  to  another  county,  misdemeanor,  3658. 

permitting ;  misdemeanor,  3659. 
farming  out  certain  prisoners,  1352. 
female ;  not  worked  on  roads,  3596. 
guard  for  county ;  c-ommissioners  allow  what,  27T7. 
mistreating;  misdemeanor,  3059,  3001. 
prisoners.     See  Prisoner. 

trading  with,  in  certain  articles,  a  misdemeanor,  3062. 
what,  .sentenced  to  work  on  public  roads,  1355. 

COPARTNER  :     See  Partnership. 

COPY  : 

adverse  party  must  give,  of  certain  documents,  when,  1656. 
bill  of  exchange :  protest  of,  on  copy,  when,  2321. 
book  account;   evidence  when,  1024. 
court  papers  lost ;  supplied  by,  504. 
deeds;  copies  of,  registered,  when  337,  338,  988,  1599. 
election  returns ;  register  and  clerk  refusing ;  misdemeanor.  3.398. 
evidence ;  deeds,  etc.,  proven  by,  1952-1619.     See  Evidence, 
grants;  certified  copy  of,  registered,  1729. 
orders  appointing  road  overseers  served  b.v,  2714. 
ordinances  of  city  )n-oven  by,  when.  2930. 
process  served  by  leaving,  440,  1243.  2714. 
register  of  deeds  certifies,  of  deed,  2057. 
wills ;  lost,  certified  copies  admitted  to  probate,  when,  329. 
certified  copy  from  another  state  probated,  how.  3130. 

COPY-SHEET; 
defined,  2805. 

CORN-MEAL ; 

sale  of,  regulated,  3060,  3810. 

CORONER ; 

action  against,  for  trespass  under  color  of  office,  barred,  when,  397. 
bond  of,  299. 

mortgage  in  lieu  of,  265. 

proved,  etc. ;  registered ;  as  evidence,  300,  308. 

suretj'  company  can  give,  273. 
county  treasurer  demanding  settlement  of;  elTect  of  refusal.  1407.  1.198  (3). 
duty;  to  hold  inquest,  when,  1051,  3797. 

to  perform  duties  of  sheriff,  when,  10.')2,  2811. 
election  of,  1047. 
fees  of.  2775. 

hiiliens  cnrjius;  writ  dlrcclod  to,  when,  1836,  1S37. 
iuqvie.st  of,  1051. 

.lurors'  compensation,  1053. 

physician  summoned,  when  ;  e.\cei)tions,  1051. 
fees  of  physician,  2775. 

1198 


INDEX. 

CORONER— co??i;n«e(i!.- 

mining  disaster ;  refusal  to  hold  inquest  over  dead ;  misdemeanor,  37'.)". 

oath  of,  1048,  2358. 

penalty  for  not  accounting,  on  notice,  1392. 

qualifies  how,  1048. 

sheriff,  when,  1052,  2811,  2819.     See  Sherife. 

special,  appointed  by  clerk,  when,  1047,  1049,  1052. 

swearing  falsely  to  statement  required  by  law:  misdemeanor,  3005. 

vacancy  in  office  of,  filled  how,  1321,  1047,  1049,  1052. 

CXDRPORATION  COMMISSION : 

accidents  on  railroads,  etc.,  investigated  by,  1065. 
acc-ounts  required  to  be  kept  by,  1115. 

actions  for  injuries  resulting  from  violating  of  rules  of,  1091. 
barred  when,  1091. 
brought  in  whose  name,  1092. 
remedies  cumulative,  1093. 
for  recovery  of  penalties  inflicted  by,  1092. 
venue  of,  1092. 
adopts  a  seal,  1054. 

annual  report  of,  to  governor  ;  printed,  1117. 
appeals  from,  to  judge  at  chambers,  1074. 
cause  entitled  how,  1075. 
how  taken,  1074. 
right  of,   1074. 
when  heard,  1074. 
to  superior  court,  1074-107(5. 

burden  of  proof  a.s  to  railroad  rates  being  fair.  1075. 
cause  entitled  how,  1075. 
docketed,  how,  1075. 
how  taken,  1074. 
priority  in  time  of  trial,  1075. 
right  of,  1074. 

tried  by  judge  at  chambers,  wheu,  1076. 
when  heard,  1074. 
to  supreme  court  from  superior  court,  1077. 
appeal  does  not  vacate  rates.  1079. 
judgment  on,  enforced  by  mandamus,  1080. 
state  gives  no  undertaking  for  costs,   1077. 
undertaking  of  ra-ilroad  to  vacate  rates,  jiending,  1078. 
writ  of  mandamus,  issued  to  enforce  judgment  on,  1080. 
refused :  appeal  to  sujireme  court,  1081. 
appropriation  for  expense  of,  1118. 

arbitrator  in  controversies  with  corporations,  wheu,  1073. 
attorney  general ;  duty  of,  when  corporation  persists  in   violations,  etc., 
1113. 
represents  commission  before  interstate  commission,  1110. 
banks;  commission's  power  over,  240-251. 

corporation  certificate;   copy  filed  with  commission,  223. 
examiners  :  appointed  by,  246.     See  Bank  Examiners, 
compensation.  249,  2755.- 
powers  and  duties,  246.  247.  249-251. 
reports  of.  to  commission,  248-251. 
receiver  of,  applied  for  by  commission,  when,  250. 
reports  of,  to  commission  ;  annual,  2-14. 
quarterly ;  published,  242. 
special,  when,  243. 
penalty  for  failure  to  report.  245. 
bill  of  lading  required  to  be  given  shipper,  1111. 
building  and  loan  agents  required  to  exhibit  books  to,  .3329. 

agent  refusing;  or  making  false  statements;  misdenieanor,  3329. 

1199 


INDEX. 

CORPORATION  COJIRIISSION— cwi^iNi/cff.- 

canal  companies ;  rates  of,  regulated  by,  1099. 

cars  transported  over  otber  lines;  rates  for,  fixed  by,  1099  (5). 

chairman  of ;  chosen  how,  1055. 

powers  of,  over  banks  and  building  and  loan,  etc.,  10G2. 
clerk  of,  chief;  how  appointed;  term  of  office,  10G3. 

qualifications,  etc.,  1063. 
clerks  and  stenogi-aphers  to;  compensation,  2754. 
commissioners ;  chosen,  how,  105.5,  1056. 

compensation  of,  2754. 

forfeit  otHce,  when,  1058. 

number  of,  1055. 

oath  of,  1059. 

qualifications  of,  1058. 

term  of  office,  1056,  1057. 
compensation  of  members,  clerks,  etc.,  2754. 
contempt ;  power  of  commission  to  punish  for,  942. 
corporations;  comniissiou's  duty  when  law  of.  violated,  1113. 
costs;  petition  of  railroad  to  fix  speed  of  trains  dismissed,  1102. 

hearing  of,  costs  paid  how,  1103. 
court  of  record,  1054. 

open  at  all  times,  1061. 
demurrage ;  rate  of,  fixed  by.  1100. 
dejDot ;  abandonment  of,  prohibited,  when,  1098. 

erection  of,  required,  when.  1097. 

union  passenger  station,  required,  when,  1097  (3). 
discrimination  in  rates  prevented  by.  1095. 

ease  of,  may  be  carried  to  interstate  commission,  1110. 
evidence  before,  governed  by  rules  in  civil  actions,  1069. 
excursion  rates  not  made  but  approved  by,  1099. 
expenses  of,  what  to  include,  lllS. 

paid  on  warrant  of  auditor,  1118. 
express  companies,  rates  of,  regulated  by,  1099  (31. 

penalty  for  not  making  reports  to  conunission,  1089. 
fares.     See  under  this  head.  Rates,  etc. 
fees  of  othcers  serving  process  of,  1071. 
fines,  etc.,  received  by,  paid  state  treasurer,  1114. 
fiscal  year  of,  ends  on  .Time  .30th,  1116. 
freight  allowed  to  be  carried  free,  when,  1105. 
freight  rates.     See  under  this  head.  Rates,  etc. 
freight  receipts;  must  be  given  shippers.  1111. 

presented  by  consignee,  with  charges,  freight  delivered,  1111. 
industrial  development;  rates  looking  to.  fixed  how,  1099  (7). 
injunction  ;  asked  to  vacate  rates  fixed  by,  pending  appeal,  1082,  1083. 

bond  before  order  of,  issued,  1082. 

increase  of  bond  ordered;  not  marie;  injunction  vacated.  1083. 
sued  on,  in  name  of  state,  when.  1084. 
recovery  ;  application  of,  108.5. 

party  entitled  to,  barred  of,  when,  1085. 
investigations  by ;  duty  to  make,  1064. 

commissioners  or  clerk  ma.v  administer  oaths,  10.54. 

evidence  in  accident  investigation  written  and  filed,  1065. 
jim-crow  car  law;  commission  may  exenijit  certain  carriers,  2620. 
judgment  of ;  affirmed  on  aiipeal,  how  enforced.  1080. 

superior  court  affirnihig,  as  to  rates;  effect,  1079. 

as  to  maximum  speed  allowed  by  towns,  etc.,  1102. 
jurisdiction  of.  1054,  1094-1103.- 

lumber;  rates  on  dressed,  shippe<l  over  line  where  originated.  1099  (6). 
meetings  of,  held  where,  1060. 

quorum,  1002. 
members  of,  constitute  state  tax  commissioners,   1119. 
"millLng  in  transit"  rates  on  grain  fixed  by,  1099  (6). 

1200 


IXDEX. 

CORPORATION  COMMISSIOIS!— continued : 

iiiuiiioii):il  ordinnnto  as  to  speed  of  trains  jiassed  on  by,  wlieii,  1101. 

notice  issued  by,  served  by  whom,  1071. 

oatli  of  conuiiissioners.  1059. 

oaths  administered  by  commissioners  and  clerli,   1054. 

office  of,  open  at  all  times,  lOGl. 

comniis.sioners  niu.st  be  present  at,  \vhen,  1061. 
order  of,  enforced  by  mandamus,  when,  1081. 
passenger  rates.     See  under  this  head,  Rates,  etc. 
1  lasses  may  be  allowed  certain  persons,  1105. 
penalties;  action  for,  under  chapter  on.  ijrosecuted  how,  1092. 

common  carriers  discriminating  between  connecting  lines,  1088. 

violating  rules  of  conunissidn,  1087, 
railroads  failing  to  oliey  rnles  suli.ject  to,  1086,  1087,  1090,  1091. 
powers  and  duties  generally,  KKiCi. 
as  a  court.  1054,  1060-107;!. 

as  to  building  and  loan  as,sociations,  1066,  3329. 
canal  companies,  1066. 
ears,  placing  and  loading,  1100. 
demuiTage,  1100. 
express  companies,  1066. 

handling  freight  and  baggage  at  .stations,  1094. 
investigations,  1064,  1065. 

rates  of  runinion  carriers,  1095,  1009.  llOfl.  1109. 
side-tracl;s,   1(I07   (5). 
.sleeping-car  companies,  1066. 
speed  of  trains  in  municiiialities,  IKil, 
stations,  etc.,  1097. 
steamboat  companies,  1066. 
street  railways.  1066,  2615,  2616. 
telegraph  and  teleplume  tolls,  1006,  1096. 
trains  running  on  Sunday.  2614.     See  Railroads, 
may  be  arbitrators  in  suits  with  corporations,  1073. 
jirocedure  before;  commission  prescribes  its  own  rules,  IOCS, 
production  of  writings  compelled  by,  when,  1067. 
railroad  and  steamboat  accidents  investigated  by,  1065. 
railroad  cars;  placing  and  loading  of,  regulated  by,  1100. 
i-ailroad:  niai)  of,  liled  witli,  2600. 
railroads:  generally.     See  Railroads. 

violating  rules  of  (Duiniission,  causing  injury,  liable,  1091,  1092. 
r.-ites ;  contr.-icts  between  raih-oads  as  to,  approved  by,  1108. 
void,  when,  1108. 
fixed  by  commission:  procedure,  1099,  1104,  1112. 
.iurisdiction  to  fix,  .1094-1096,   1099-1100. 
stand  until  decision  reverseil.  1078. 
vacated  pending  ajipeal,  how,  1078, 
schedule  of,  published  by  commission,   1109. 

prima  facie  evidence  of  what,  1112. 
short  haul,  must  not  be  gi-eater  than  long  haul ;  exeejitions.  1107. 
rebates  not  allowed,  1095. 

remedies  for  in.iuries  by  violation  of  rules  of,  cumul.ative,  109:!. 
report  of,  to  governor;  printed,  1117. 
rules  of  practice  before,  1068. 

salaries  and  traveling  expenses  of  members  of,  27.54. 
side-ti-acks  required  to  be  constinicted  by.  etc.,  1097   (5). 
special  rates  to  excursion  parties,  approved  by,  1099, 
station ;  abandonment  of,  prohibited,  when,  1098. 
railroads  required  by  commission  to  erect,  1097. 
to  repair,  when,  1097   (.2). 
steamboat  companies ;  rates  of,  regulated  by,  1099. 
storage  charges  by  common  carriers  fixed  b.y,  1100. 

Rev.  Vol.  1—72  1201 


INDEX. 

CORPORATION  COMMISSION— fOHriHMCt/; 

street  railways;  rates  of  ti'ansportation  of.  regulated  by,  1(I09. 

commission  may  exempt  from  certain  regulations,  2615,  2016. 
subpoenas  to  appear  before,  issued  how,  1070. 

servetl  bow,  1070. 
tax  commissioners ;  duties  of.     See  State  Tax  Commissioners, 
telegraph  rates  regulated  by.  1090. 
telephone  rates  regulated  by,  1(I90. 
through  rates  of  transportation  made  by.  1099  (2). 
transportation  of,  and  clerks,  etc.,  1105. 

undertaking  of  railroad  applying  to  vacate  rates  pending  appeal,  1082. 
undertakings  provided  by  chapter  on  ;  form  of,  1072. 
union  station  required  of  two  or  more  railroads,  when,  1097   (3). 
vacancy  on,  filled  by  governor,   1057. 

term  of  new  appointee,  1057. 
venue,  where  municipal  ordinance  concerning  speed  contested.  1101. 
waiting  rooms,  separate,  for  white  and  colored,  required,  1097  (4). 
witness  compelled  to  testify  before,  1007. 

refusing  to  testify:   misdemeanor,  .3691. 

CORPORATIONS : 

actions  against ;  attorney  general  brings — 
to  compel  accounting.  1197. 
dissolve  corporations,  1246. 
jireserve  corporate  property,  1197. 
remove  officers.  1197. 
restrain  ultra  vires  acts,  1197. 
vacate  corporate  charter,  119S. 
by  officers  and  stockholders  for  money  advanced,  1157. 
for  issuance  of  duplicate  stock  certificate.  1107. 
not  abated  by  death  of  receiver,  415  (4). 
service  of  summons  in;  for  dissolution  or  receiver,  1199. 
in  other  actions,  440.  1448. 
agents  and  factors,  etc. ;  may  lie  employed  by,  1150.     See  Agent, 
embezzling  funds ;  felony,  3325. 
making  false  entries  in  books  of ;  felony,  3325. 
refusing  certain  information  to  oflic-ers,  etc.,  misdemeanor.  3690. 
amendments  to  charter  of,  1174,  1175. 
annual  statement;  failure  to  make;  forfeiture,  1152. 
articles  of  agreement.     See  under  this  head.  Charter,  etc. 
as.sessments  upon  shares,  1169-1171. 

non-payment  of;  effect,  1170,  1171. 
assets  of ;  disti-ibuted  on  dissolution,  how,  1207. 

first  exhausted  before  execution  against  directors,  etc.,  1158. 
banking  business  can  not  be  done  by  certain,  1134. 
banks.     See  Banks. 

board  of  directors.     See  under  this  head.  Directors,  etc. 
bonds  of,  may  be  sold  below  par,  1951. 
books  of,  kept  where,  1179. 

building  and  loan  association.     See  Building  and  Loan  Associations. 
burning  office  of.  a  felony,  3337,  3344. 
by-laws;  determine  how  vacancies  in  office  filled,  ll.'il. 
must  not  be  repugnant  to  charter.  1140. 
power  of  corporations  to  make  and  alter,  1145. 
canal  companies.     See  Canal  Companies, 
can  not  vote  its  own  stock  owned  by  it  at  elections,  1187. 
capital  stock  ;  classes  of,  1159. 

construction  companies  may  take,  in  labor,  etc..  1172. 

corporation  must  report  same,  1172. 
decreased,  how,  1164. 

does  not  release  delinquent  stockholder,  1104. 

12(r2 


INDEX. 

COnPORAIIONS—iwitin  iied  : 
capital  stock — continued. 

paid  for  with  money,  1160. 

\\'ltli  property  or  labor;  issued  full  paid,  11.59,  1161. 
shares  of.     See  under  this  head,  Shares  of. 
certificate  of  stpcli ;  issued  how,  1165. 
lost ;  duplicate  issue<l,  when,  1166. 
refusal  to  issue ;  remedy,  1167. 
charter  of;  action  to  compel  forfeiture  of,  1198. 
amended  how.  1174,  117.5. 

certificate  of  incorporation ;  contains  what,  11.37. 
errors  in.  corrected  how,  1144. 

incorporators  become  corporation  upon  filing,  1140. 
probate  of;  certain  invalid  probates  validated,  1027. 

how  made,  1139. 
signed,  filed  and  recorded,  1139. 
forfeited  for  failure  to  appoint  process  agent,  124;i. 
for  nouuser,  1246. 
for  unlawfully  issuing  scrip,  3711. 
general  assembly  grants,  when,  1235. 
may  amend  or  repeal,  1135,  1136. 
tax  when  general  assembly  creates,  etc.,  1235. 
.surrender  of,  1177. 
tax  and  fees  for,  1233,  1234,  1235. 

time  of,  extended;  effect,  1178.  

construction  companies  taie  stock  and  bonds  for  labor,  etc.,  1172. 
eonti-oversies  of;  submitted  to  arblti-ation  before  commission,  when,  1073. 
conveyances  by  ;  probate  of,  forms  for,  1005. 

void  as  to  right  of  action  for  tort,  etc.,  1130. 
corporation  commission's  duty  with  regard  to,  1064.  1066-1071. 
"court"  means  "resident  judge,"  or  "riding  district,"  when,  1247. 
created  how,  under  general  law  ;  exceptions,  1137. 
creditors  of  insolvent,  prove  claims  before  receiver,  how,  1229. 
creditors  sue  directors  who  wrongly  declare  dividends,  1192. 
custodian  (non-resident)  of  corporate  books;  duty  to  send  officer  Informa- 
tion as  to  defendant's  stock,  when,  1218. 
debts  of;  not  extinguished  by  dissolution,  1201. 
decrease  of  capital  stock,  how  effected,  1164. 

directors ;  as  trustees,  notified  before  .iudgment  taken  against,  1208. 
become  trustees  on  dissolution ;  exception.  1201-1203. 
call  meeting  to  decide  upon  dissolution,  1195. 
classification  of,  H47. 
declare  dividends,  when,  1191. 
election  of,  1147,  118-2-1189. 

cumulative  voting  allowed,  1183. 
failure  to  hold ;  effect,  1188. 
.ludge  may  order,  when,  1188. 
jurisdiction  of  superior  court  over,  1189. 
proxies,  1184. 
quorum  for,  1182. 

right  to  vote  in,  determined  by  transfer  books,  1181. 
stockholders  entitled  to  vote,  how,  1183,  1184. 
stock  of  its  own  owned  by,  not  voted,  1187. 
held  by  fiduciaries  voted  how,  1185. 
life  tenant's,  voted  on.  bow,  1186. 
married  woman's,  how  voted,  1185. 
pledged  as  collateral ;  who  votes  on.  1185. 
transfer  within  twenty  days  of;  effect.  1184. 
superior  court's  jurisdiction  over,  1189. 
liable ;  for  declaring  dividend  wrongfully.  1192. 

for  failure  to  advertise  decrease  in  capital,  1164. 
frauds  perpetrateil,  1155. 

1203 


IXDEX. 

CORPORATIONS— co)i/;»Hf'(?; 
directors — continued. 

number  of,  1147. 

powers  and  duties  of,  1147. 

qualifications  of,  1147,  1148. 

term  of  office,  1147. 
dissolution  of ;  direc-tors  become  trustees ;  jiowei-s,  1201. 

distribution  of  funds,  1207. 

overplus  goes  to  stockbolders.  1207. 

does  not  abate  actions  against,  1208. 

involuntary  ;  at  instance  of  private  party,  119C. 
for  what  causes,  1196. 
leave  to  bring  action,  828. 
.it   instance  of   attorney   general,   1198. 
for  what  causes.  1198. 
service  of  sununons  in  action   for.   1199. 

judgment  of:  entered  after  assets  distributed.  1207. 

receiver  .-ipiiointed  ^^•hen.  1203.     See  Receiver. 

time  in  which  to  wind  up  business,  1200. 
extended,  when,  1200. 

voluntary ;  procedure,  119.i. 

c-ertificate  of  dissolution  recorded,  where,  119."i. 
dividends;  declared,  after  leaving  working  capital,  when,  1191. 

from  profits  :uid  surplus  only,  1192. 

resti-ietion  on  directors  in  declaring,  1192. 
domestic;  without  process  agent,  how  served  with  process.  442. 
election  of  directors.     See  under  this  head.  Directors,  etc. 
electric  lighting  companies.     See  Electric  Lighting  and  Power  Companies, 
electric  railways.     See  Street  Railways, 
embezzlement  by  officers  and  agents;  felony,  332.5. 
execution  against,  1212-1218. 

as.sets  exhausted  before  execution  on  directors,  11!58. 

levied  on  property  convoyed  away,  when.  1130,  1131. 

no  tangible  property  fnund  ;  proceed  against  debtors,  1216.  I 

officer  with,  can  demand  certain  information,  1213. 

corporate  books  out  of  state;  how  obtained,  1217,  1218. 

sale  of  property  under  ;  title  vests,  when,  1238. 

shares  in  other  corporations  sold  under.  1214. 
execution  against  stockholders ;  duty  of  officers,  1214-1218. 
fees  paid  for  charter;  amendments,  etc..  12.S.3-12.S."'>. 
first  meeting ;  how  called.  1142. 
foreign,  1193,  1194.     See  Foreign  Corporations; 

venue  of  action  against.  423. 
forfeits  franchises,  when  ;  judgnient.  1209.  1210. 
formation  of.     See  undci-  this  bead.  Charter,  etc. 
franchise  of,  contested.  .s-_'i  1-8-1  .'>.  IIIOO,  1071,  1196,  1197.  1209.  1210. 

procedure.     See  Quci  Warranto, 
fraud  by  officers  of:  such  officers  liable,  115.5. 
gas  companies;  can  supjily  electric  lights.  1132. 

gi-anted  special  powers  over  highways,  1133. 
general  corporation  law ;  its  relation  to  all  chartei*s,  1136. 

can  l>e  amended,  and  corporations  bound,  11.36. 
incorporator  dying,  vacancy  filled.  1143. 
incorporators:  become  corporation,  when.  1140. 

direct  affairs  \uitil  directors  elected,  1141. 
injunction  to  suspend  business  of.  granted,  when.  120.5. 
insolvent;  laborers  have  first  lien  on  assets.  1206. 

property  of.  sold  pending  litigation,  when,  12.32. 
intestate's  estate  liable  for  inip:iiil  stock  assossnient.  1162. 
inventory  of  cori)orate  property'  filed  by  re((>iver,  122.5. 
issuing  scrip  unlawfnll.v  ;  penalty,  3711. 

1204 


INDEX. 

CORPORATIONS— coHtinHed; 

juclgiuent  dissolving ;  eutered,  when,  1207. 

filed  with  seeretai-y  of  state,  1211. 
judgment  of  forfeiture  of  charter,  when,  1209,  1210. 
"judge  of  superior  court"  refers  to  w'hom,  in  chapter  on,  1247. 
~    land  conveyed  by ;  conveyance  void  as  to  torts,  etc.,  1130,  1131. 
loans  can  not  be  made  to  stockholders.  1100. 
laborers  for,  have  first  lien  ou  assets,  when,  1206. 
legislative  control  over  charters  of,  1135,  113G. 
life  of,  extended  how,  1178. 

limitations,  statute  of :  bars  action  against  directors  for  wrongfully  declar- 
ing dividend,  when,  1192. 

bars  action  for  tort  of,  when  property  conveyed,  1130. 
meetings ;  annual,  where  held,  1179. 

elections  at.     See  under  this  head.  Directors,  etc. 

first,  how  called,  1142. 

special,  how  called,  llfHj. 

stockholders',  enforced,  how,  1188. 
mortgaged  corporate  property  subject  to  execution,  when,  1131. 
municipal.     See  Municipal  Corporations, 
mutual  associations  may  create  stock,  etc.,  124.5. 
name  of,  to  be  displayed,  1242, 
negotiable  instruments  drawn,  etc.,  to  officer,  payable  to  whom,  2191. 

effect  of  indorsement  liy  corporation,  etc.,  2191. 
office,  principal;  location  changed,  1170. 

stock  books  must  be  at,  1170,  llSd. 
officers;  chosen  how;  duties,  1147-11.58. 

contribution  between,  \\-hen,  1150,  1157. 

embezzlement  by,  felony,  3325, 

fraud  by ;  such  officers  liable,  1155. 

malfeasances  in  oflice ;  felonies,  3325. 

must  turn  over  evidences  of  debts  to  executing  officer,  1210. 
one  corporation  may  own  stock,  etc.,  of  another,  1173. 
"person"  means  corporation,  when,  2831  (0). 
powers  of,  created  under  chapter  ou,  1128,  1129,  1132-11.34,  117.3. 
president;  chosen  how,  1149. 

duties;  term,  etc.,  1149. 

must  be  a  director.  1140. 
public.     See  Municipal  Corporations, 
quorum  for  election  of  directors,  1182. 
railroads,  2548-2G4S.     See  Railroads. 

can  not  be  leased  by  corporation  cliartered  under  general  law.  1129. 
ready  for  business,  when,  1140, 
receivers  of,  1219-1232,     See  Receiver, 
record  of  charters  of,  kept  by  clerk,  915  (23). 

refusing  to  exhibit  books  and  testify  before  state  tax  couuuission  ;  misde- 
meanor, 3792. 
reorganization  of;  certificate  filed  when  and  where.  1241. 

does  not  affect  prior  liens  on  property,  when,  1241. 

nor  persons  not  parties  to  action ;  exception,  1241. 

new  corporators  meet  and  organize,  1230,  1240,  2505, 

on  recei\er  being  discharged,  1221,  2.505. 

powers  of  new  company,  1238,  1240. 

procedure  in.  1238,  25(')5. 

trustee,  made  party  to  decree,  binds  cestui  que  tiiist,  1241, 
reports  of;  annual,  1152. 

failure  of  officers  to  make;  liability,  1103. 

required;  proving  false;  officer  signing,  liable,  etc..  1154. 

special  may  be  calle<l  for.  1153. 
resident  process  agent  of,  required,  1243, 
secretaries  of;  duties,  1149. 
secretary  of  state;  duty  with  respect  to.     See  Seci-etary  of  State. 

1205 


INDEX. 

CX)RPOr{  ATI  ONS— CO)/ 1  iiiued : 

shares  of  stot-k  iu  :  assessmeuts  on,  ll(i9. 

failure  to  pay,  shares  sold,  1170,  1171. 

attachment  levied  on,  how,  77G-778,  786. 

held  as  collateral,  how  entered,  1108. 

paid  for  by  labor,  etc.,  issued  full  paid,  1159. 

personal  propertj',  1108. 

transferred  how,  1108. 
statements  to  secretary'  of  state,  115?-1154. 
stockholders :  entitled  to  certificates  of  shares,  11G.^,  1160. 

liable  for  stock  not  fully  paid,  1102,  1164. 

loans  cannot  be  made  to.  1100. 

meetings  of,  called  how.  1142,  1188,  1190. 

officers  liable  to,  when,  1103. 

who  are ;  determined  liy  transfer  books,  1180. 
street  railways.     See  Street  Railways. 

organized  under  general  law  of,  1138. 
summons  served  on,  how,  440,  442.  1199,  124.3,  1448. 
"superior  court"  means  what,  in  chapter  on,  1247. 
surrender  of  corporate  rights  before  stock  paid,  1177. 
suspension  of  business  of;  injunction,  1205. 
taxes  against;  collected  by  distraint  and  seizure,  1230,  1237,  2881. 

for  charter,  etc.,  1233,  1234,  1235. 

officer  must  tiu-n  over  money  in  his  hands  to  pay,  3786. 
telegraph  and  telephone.     See  Telegraph  and  Telephone  Companies, 
ti-ansfer  books;  closed  how  long  before  election,  1184. 

contain  what,  1180. 

determine  right  to  vote,  1181. 

evidence  as  to  who  are  shareholders,  when.  IISO. 

kept  where,  1180. 

stock  n-ansferred  on,  1168.  1184. 
treasurer  of.  may  be  required  to  give  bond.  1149. 
ti'ustees ;  directors'  duties  as,  on  dissolution,  1201-1203. 
ultra  vires  act  of,  restrained  by  attorney  general.  1197. 
vacancies  in  offices  of.  how  filled,  1151. 
venue  of  actions  concerning,  422,  423. 
warehousemen.     See  Warehousemen, 
winding  up  business  of,  uix>n  dissolution,  1200-1207. 

COSTS ; 

admlnisti-ation  of  estates ;  actions  by  or  against  representatives,   1277. 
action  by  creditor  against  representative  after  one  year,  94. 
on  claim  denied,  115. 
by  heir,  devisee,  etc..  for  contribution,  58. 
advertisement  for  claims,  39. 
appeal ;  bonds  for  costs  on.  593-595,  597. 

not  required  in  criminal  actions,  when,  3278,  3279. 
decision  of  court  below,  not  affinned,  who  pays,  1279. 
plaintiff  not  recovering  more  in  superior  court  than  in  justice's,  12.SJ 
arrest  in  civil  .actions ;  imdertakings  providing  for,  730.  7.38. 
assignee  pa.vs,  when  assignment  takes  place  pending  action.  1278. 
attorney  pays,  when  he  fails  to  file  complaint  in  time,  214. 
bail  in  civil  action  pays,  when,  7.50. 
bastardy  pro<eedings,  254,  255,  259,  202. 
bill  of;  at  all  times  ojien  to  Inspection.  12.58. 
contains  what;  when  venue  changed,  128.5. 
in  allotting  homestead.  1274. 
how  made  out,  generally,  12.56,  1258,  1301,  1306. 
solicitor  apiiroves.  in  criminal  cases,  12.56. 
bonds  for  cost.     See  Bond  for  Cost, 
burnt  and  lost  records;  proceeilings  to  perpetuate,  .339. 
claim  and  delivery  proceedings;  judgment  for,  1264   (2),  1266. 
1206 


INDEX. 

COSTS — COM  tin  ued  ; 

clerks  superior  and  supreme  courts  issue  executions  with  bills  of,  item- 
ized, attached,  1252. 
coiKlenuiation  proceedings  of  railroads,  2589. 
corporations ;  judgment  that  charter  be  forfeited,  who  pays,  1209,  1210. 

filing  copy  of  judgment  with  secretary  of  state,  1211. 
county  pays  certain,  in  criminal  actions,  1283-1290. 
defendants;  allowed  costs  in  what  cases,  1200. 

liable  when,  in  criminal  cases,  1291,  1294,  1290. 
making  separate  answers,  how  costs  adjiul.i^cd,  1200. 
deposition;  commissioner's  fees  taxed  against  whom,  1208  (0). 

taken  to  be  used  in  another  state,  1055. 
discretionary  with  court  as  to  who  pays,  when,  58,  .S39,  1207,  1208. 
divorce  and  alimony;  action  for,  1208  (4). 
draining  lowlands,  1208  (8). 

duty  of  clerk  to  itemize,  in  criminal  cases,  1250. 
execution ;  costs  on,  paid  into  court,  when,  040. 
execution  for ;  when  supreme  court  hands  down  decision,  1549. 
fence,  dividing,  controversy  over  value  of,  1000. 
ferries;  application  for  establishment,  etc.,  of,  1208  (5). 
guardians ;  actions  against,  who  liable,  1797. 
habeas  eonjus  proceedings,  1208  (3). 
heirs  pay,  in  creditor's  proceeding  against  tliem,  54. 
homestead,  allotment  of ;  on  ajiplication  of  owner,  1274. 
costs  a  lien  on  homestead,  1274. 
on  execution,  1274,  1275. 
reallotment,  127."). 
husband  discharged  from  defending  for  wife  pays,  2104. 
infant  plaintiff  adjudged  liable  for,  who  pays,  1276. 
'infants'  estates  sold  or  divided,  judgment  for,  407. 
interloeutoo'  proceedings ;  costs  in,  adjusted  by  clerk,  when,  1255, 
judgment  for :  against  sureties,  etc.,  on  undertaking,  1251. 
against  iierson  usurping  office  or  franchise,  840. 
final,  on  appeal,  1279,  1282. 
judgment  b.v  confession ;  clerk's  fee,  582. 
jurors'  tax  fees  in  criminal  and  civil  actions,  1'253. 

not  charged,  when,  1253. 
jury's  accommodations  taxed  as,  1978. 
justice  refusing  itemized  bill  of;  misdemeanor,  3588. 
justice's  court ;  costs  in  ci'iminal  actions  in,  1307,  1308. 

appeal  from ;  costs  as  in  superior  court,  1281. 
justice's  judgment  for,  on  dismissal  of  action,  1421,  1423, 
landlord's  action  to  eject  tenant,  2005,  2007. 
lynching  investigations.  1288. 

mayor  may  sentence  defendant  to  work  for,  29;i7. 
mills ;  proceedings  to  establish,  2128,  2145. 
money  deposited  for,  in  lieu  of  bond,  450. 
mortgage  in  lieu  of  bond  for.  sale  under,  266. 
officers;  can  not  demand  costs  advanced  in  criminal  actions,  1254. 

indorse  amount  of  their  fees  on  process,  1254. 
partition  proceeding,  1208  (7). 
party  adjudged  to  pay.  files  witness  tickets,  1300. 
party  cast,  i>ays  only  two  witnesuses  to  material  fact,  1.300. 
party  obtaining  judgment,  what  allowed  as,  1249. 
pauper  plauitift"  entitled  to,  1205. 
plaintiff  allowed  ;  when,  1204. 

pays,  when  action  dismissed,  etc.,  406,  1266. 
pleadings  amended  upon  jiarty  asking  paying,  when,  1468. 
prisoner ;  removal  of,  when  captured,  to  proper  county,  who  pays,  1287. 

removed  to  another  county  for  safety,  who  pays,  1285. 
prosecutions  for  bribery  or  attempt  to  bribe  state  officers,  etc.,  1262. 
proi5ecutor  in  criminal  actions,  pays,  when.  129.%.  1296. 

1207 


INDEX. 

COSTS— (■(riitiinicil: 

quo  wni-nuito  pi-cxeedings;  who  pays,  834,  1201. 

railroads:  iietition  as  to  municipal  ordinance  concornln.ir  speed  of  (rains, 
gi'anteil,  who  pays,  1103. 

dismissed,  who  pays,  1-102. 
reallotmeut  of  homestead;  costs  in  court's  discretion.  12T."i. 
receivership;  costs  in.  jiaid  nut  ot  assets,  122(i. 
reference;  fee  of  referee  taxed  ai;ainst  wliom,  1268  (C). 
roads;  application  for  estalilislniient.  alteration,  etc.,  of,  T_'(S  (,")). 
sale  of  land  under  execution;  advertisement,  041. 
solicitor's  duties  as  to.  in  criminal  cases,  12.50. 
sijecial  proceeding;  costs  in,  adjusted  by  clerk,  when,  125."),  1272. 
.state  not  liable,  when,  in  civil  actions  by  state,  12G1. 
state  pays,  when ;  in  criminal  action.s,  1202. 

in  civil  action  by  and  against  sbite  officers,  1260. 
by  state,  when,  12.")0. 

.iudgmeut  rendered  against,  on  appeal  to  V.  S.  courts.  1203. 
strays  ;  tidying  uii,  advertising  and  selling.  2833-283.5. 
siunni;iry  judirnieMt  for  uncollected  cost,  on  motion.  12.50. 
supplcnieulal   proceedings,   who  jiays.   127.'1. 
supreme  court  ;  e.\;e<-ution  to  collect,  1.540. 

witnesses  before;  fees  ta.xed  in  bill,  1.547. 
sureties  for;  judgment  and  execution  against.  1251. 
survey  of  land;  by  order  of  court,  who  pays.  1504. 
taxes  added  as,  when,  2857. 

tender  of  judgment ;  plaintiff  refuses,  who  pays.  800. 
transcript  of  appeal  to  supreme  court,  1280. 
undertaking  for.     See  Bond  for  Cost, 
usuricius  coiitnirt.  person  suing  on,  not  entitle<l  to,  1271. 
water  mill  sites  condemned.  1260. 
what  allowed  as,  1240. 
widow's  year's  allowance;  proceedings  to  allot.  1208. 

setting  aside,  31 10. 
wills,  caveat  of,  1268  (2). 
witnesses ;  entitled  to  fees.     See  Witnesses. 

fees  payal)le,  when,  1298-1303.     See  'Witnesses. 

for  defendant.  ]iaid  by  county,  when,  1290. 
state,  paid  by  countj',  when,  1289. 

COTTON : 

bu.yiug  less  than  bale,  failing  to  lieej)  certain  records,  misdempanor.  .181 J 

buying  or  selling,  less  than  bale,  at  night,  misdemeanor,  .3813. 

deducting  from  weight  of.  except  for  certain  causes,  misdemeanor.  3SI0. 

insjiection  and  s.-ile  of.  unlawfully,  in  certain  counties,  inisdemeanni-.  .'isil 

seed,  how  much  to  the  bushel,  ,3000. 

title  to.  passes  with  warehouse  receipt.  .3033. 

weigher  failing  to  take  and  file  oath  before  acting.  luisdcniiMMor.  'J.'Ulo.  ;',81."'.. 

COTTONSEED  JIK.VL : 

sale  of:  uninsjiected  and  not  branded,  misdemeanor.  :i814. 

with  less  anunonia  than  law  prescribes,  misdemeanor.  :',S\4. 

COUNSEL;     See  Attorney  at  Law. 

COUNTERCLAIM  : 

answer  setting  up,  plaintiff  may  rejily,  484. 
judgment  on  :  by  default  and  imiuiry,  when,  .5.58. 

by  default  final,  when,  .550. 

on  verdict  linding  cotinterclaim  exceeds  plaiiitilT's  ilaini.  .5.53. 
li(>n  reduced  liy  set-<irf  or.  '2o:!2. 
pen.-illv  I'or  usiu'v  as.  1951. 
set  U|i'liy  answer.  479,  481,  482. 
what  constitute.s.  481. 

1'J08 


INDEX. 

COUNTERFEITING  : 

hank-notes,  state  bonds,  etc.,  a  felony,  .3410. 

foiu  of  gold  or  silver,  felony,  3422. 

forgery.     See  Forgery. 

person  having  tools  for  the  punjose  of  eonnterfeiting,  felony.  3423. 

selling  goods  branded  with  another's  lirand  :  felony,  3850. 

trademarks.  3010-.3(I21 . 

COUNTY : 

hridgi's  over  streams  dividing  connties,  2(!0(j. 

claims  against.     See  County  Claims. 

convict  force  provide<l  for.  how,  IS.J.j.     See  County  Convicts. 

county  commissioners ;  powers  and  duties,  etc.     See  County  Commissioners. 

criminal  action  moved ;  which  county  adjudged  to  pay  cost,  12S.o. 

dividing  lines  between  comities  in  dispute ;  how  established,  1322. 

finance  committee  of.     See  County  Finance  Conunittee. 

guarding  prisoners ;  expense  of,  paid  by,  when,  1345,  1347. 

jail  of.     See  Jail. 

liable  for  certain  costs  in  criminal  actions,  when,  1283-1287.  1303.  1304. 

not  liable  where  justice  has  final  jurisdiction.  1307. 
lynching  investigation  :  when  pays  cost  of,  1288. 
poor-house.     See  Home  for  Aged  and  Infirm. 
150wers  of;  exercised  by  county  commissioners,  1309,  1310. 
I>risoner ;  captured  in  one  county,  removed  to  another ;  cost,  1287. 

injured  or  lynched,  county  liable.  282."). 

removed  to  another  county  prison  for  safety,  expenses  provided.  1285. 
revenue  of.     See  County  Revenue. 
state  convicts  hired  by  ;  stockades  must  be  built,  1358. 
subscription  by.  to  railroad  construction,  2558. 
survey  of  townshii)s :  ma])  of.  filed  where,  1318  (7). 
taxes  of.     See  dinnty  Revenue;  Tax. 
witness  for  defendant;  paid  by  comity,  when,  1200. 
witness  for  state  jiaid  by.  when.  12.80. 
workhouse  of.     See  House  of  Cori-ection. 

COUNTY  BOAKI)  OF  Kl  )rc.\Tl().\  :     See  Volume  II. 
compensation  of,  2780. 

proceeds  from  sale  of  sti-ays,  duty  as  to.  2835. 
treasurer  of;  compensation  ;  jiroviso.  2778. 
county  treasurer  acts  as.  ex  officio,  1300. 

<'OUNTY  BOARD  OF  ELECTIONS  :     See  Volume  II. 
compensation  of,  2784. 

<'OUNTY  BOARD  OF  PENSIONS :     See  Volume  11. 
compensation  of,  2783. 

COUNTY  CLAIMS: 

account  against  county  ;  itiMiii'/.ed  .md  verified  before  audited,  1.385. 

numbered  as  presented ;  filed  and  recorded,  1380. 
as  allowed,  in  a  book.  1387. 
action  on  ;  barred  in  two  years,  .300. 

ii'iii|ilaint  must  be  verified.  1.384. 

demand  necessary  before  bringing,  13.S4. 
bridges  built  by.  2702. 
county  treasurer;  not  to  pay  claim  unless  allowed,  eti'..  1404. 

forbidden  to  speculate  in,  under  penalty,  etc..  1.300. 
limitation  ;  statute  of.  bars  action  on.  in  two  years,  300. 
order  for  building  bridges,  etc.,  valid,  when,  2702. 


INDEX. 

COUNTY  COMMISSIONERS: 

aiiuuiil  stiitcment :  niiiouiit  paid  lueinliors  of  board,  1326. 
iiiisdcmoanor  lor  board  not  publishing.  3592. 

receipts  and  disbursements.  1388. 
bastardy :  warrant  issued  at  instance  of.  2.")2. 
bonds  of  county  officers ;  duly  of  conunissioners  as  to.  308-315,  2812-2815. 

annually  examined  by  commissioners,  308. 

approval  of,  by  commissioners,  ."11. 

clerk  to  record  yeas  and  nays  on,  312. 
those  voting  yea,  liable,  when,  31.S,  2814. 

disapproval  of;  officer  appeals,  1318  (23). 

given  for  the  term,  308. 

Increase  of,  required,  when,  308. 

record  of  board  evideuco  as  to  commissioner's  lialiility  on.  314. 
bridges :  duties  of  as  to,  2695-2710.     See  Bridges, 
chairman  of ;  absent,  who  presides.  1317. 

can  administer  oaths,  1318  (22),  2.302. 

chosen  how  and  when,  1317. 

informs  judge  if  clerli  fails  to  give  bond.  892. 
<hoseu  how,  in  the  various  counties,  1311,  1312. 
claims  against  couutj- ;  duty  with  reference  to.  1,384-1388. 
clerk  of  board  of,  furnishes  jury  lists  to  justices.  1428. 
clerk  of  superior  court's  statements  audited,  etc..  919. 
clerk  to  board  of ;  duties.  13'25,  1326,  2666. 

compensation  of  board,  1324. 

records  names  of  tliose  approving  and  disapproving  bonds,  312. 
t-onimissioners  apjiointed  by  ;  to  establish  county  line,  1.322. 

bow  sworn  itnd  paid,  1323. 
couunittee  appointed  to  examine  ti-easurer's  accounts.  2779. 
compensation  of.  27S."i. 

account  of,  published  annually,  1320. 

none  allowed  for  called  meetings,  1317. 
contempt;  i)0wer  of,  to  punish  for,  942. 
contest  settlement  of  pauper  coming  into  county.  1327. 
county  buildings;  removing  or  designating  new  site  for,  1318  (28).  1319. 
county  officers:  failing  to  make  correct  report;  duty  of,  1381. 

failing  to  turn  over  moneys  to  treasurer;  duty  of,  1407. 
county  poor ;  duty  of  board  with  reference  to,  1329-1334.     See  Count.v  Poor. 
county  prisons  built  and  maintained  l)y.  1.33.5-1375.     See  County  Prison, 
county  tax  levied,  when,  l)y,  1318  (25).  1319. 

count>-  treasurer's  accounts  ;  duty  of  board  to  have  examined.  1398  (5). 
courthouse  built  and  maintained  b.v,  how,  133.5.     See  Courthouse, 
direct  ai)plication  of  count.v  revenue,  1370. 
electiim  of;  by  justices  of  the  peace  in  certain  comities.  1312. 

by  the  jjeople  in  certain  counties,  1311. 
examine  itemized  statements  of  clerk  of  superior  court.  919. 
failing  to  discharge  duty,  guilty  of  misdemeanor.  .'CillO. 
house  of  correction,  maintained  by,  how,  1360-1375.     See  House  of  Correc- 
tion, 
jail  protected  by.  2S25. 

judge  notifies,  of  vacancy  in  county  office,  when,  318. 
juiT ;  commissioners'  duties  as  to.  1.515,  19.57-19li.3.     See  Jury, 
justice's  d(K-ket  furnished  by,  1416. 

justices  have  joint  meetings  with,  in  certain  counties,  1313. 
keep  record  of  county  trust  funds  and  sue  for  same.  1402. 
liable  as  surety  on  bond  approveil,  when,  313. 

for  loss  of  taxes  when  taking  insufficient  bond,  etc.,  2814. 
license  granted  by.  to  auctioneers,  217. 
lien  record  books  furnished  by,  2057. 
meetings  of;  quorum,  1317. 


spe<-ial,  called  how,  1317. 
when  and  where,  1317. 


1210 


INDEX. 

COUNTY  COMMISSIONERS— c-o/i<i)u/r7/; 

meridian  mommients  must  be  protectetl  by,  o(J79. 

notice  of  called  meetings  of,  advertised,  how,  1317. 

number  of,  chosen  in  the  various  counties,  1.311,  1312. 

oath  of  otlice  taken  before  clerk  ;  signed  and  tiled,  l.SK!,  2.S.")8. 

official  bonds  of  county  officers.     See  under  this  head,  Bonds,  etc. 

order  of ;  fee  for  recording  and  issuing,  2770. 

paupers  cared  for  by ;  how,  1327-1333.     See  Home  for  Aged  and  Infirm. 

power  of;  to  adopt  a  county  seal,  1318  (24). 

to  appoint  commissioners  to  open  rivers,  etc.,  1318  (17). 
county  standard  keeper,  3072. 
entry-taker,  1700. 

inspector  of  highways  and  bridges,  1318   (10).     .See  Uoads. 
proxies  to  represent  county,  when,  1818  (12). 
approve  bonds  of  county  officers,  1318   (28),  1319.     See  under  this 

head.  Bonds,  etc. 
audit  accounts  and  provide  for  payment,  1318  (5). 
authorize  chairman  to  issue  subpcenas,  1318  (22). 
borrow  money,  1318  (27),  1319. 
buy  outstanding  bonds,  etc.,  of  county,  1320. 

construct  and  repair  bridges,  1318  (29),  1319,  2695-2710.  See  Bridges. 
declare  streams  lawful  fences,  1063. 

designate  site  for  county  buildings,  when,  1318  (6,  28).  1319. 
divide  county  into  townshijis,  l.'ilS  (7). 
erect  and  repair  county  Imildings.  1318  (26),  1819. 
erec-t,  divide  or  alter  townships,  1318  (80),  1310. 
establish  house  of  correction,  1300-1372.     See  House  of  Correction, 
places  of  inspection,  etc.,  1318  (19). 
public  landings.  1318  (19). 
exempt  from  payment  of  poll  tax,  1318. 

extend  time  for  collecting  and  settling  county  tax,  1318  (25),  1319. 
farm  out  certain  prisoners,  1.352. 

fill  vacancies  in  certain  offices,  1821,  2651,  2810-2812,  2813. 
fix  office  hours  of  register  of  deeds,  2653,  2654. 
induct  into  office  county  officials,  1318  (23),  1319. 
lay  out,  discontinue,  etc.,  highways,  etc.,  1318  (8).     See  Roads, 
levy  county  taxes,  1318  (25).  1319. 
levy  special  tax  for  convict  force,  1359. 
license  peddlers,  1318  (18). 

auctioneers  and  take  their  bonds.  1318  (20).   See  Auctioneers, 
sale  of  spirituous  liquors,  1318  (18).     See  Liquors, 
locate  public  buildings,  1318  (0). 
make  orders  respecting  corporate  property,  1318  (4). 
oppose  discharge  of  insolvent  debtor,  1919. 
order  survey  of  oyster  beds,  2374. 
procure  standard  weights  and  measures,  1318  (16). 
provide  for  convict  force,  1318  (11),  13,").''>- 13.59. 
employment  of  prisoners,  1318  (11). 
maintenance  of  the  poor,  1318  (14). 
payment  of  debt,  1818  (2). 
pest-house.  1318  (15). 
work-house.  1360. 
punish  for  contempt,  942. 

purchase  projierty  for  public  buildings,  1318  (6). 
raise  highway  moneys,  1318  (9). 

regulate  speed  of  autonioliiles ;  exception.  1318  (.32). 
require  from  county  officer  report  under  oath.  1318  (21). 
sell  or  lease  real  property,  1318   (13),  1319,  2078,  2979. 
settle  disputed  county  line,  1322. 

submit  i>r(i|iositlon  to  contract  debt  to  the  people,  1818  (8). 
subscrilie  to  stock  of  railroad  company.  2558-2562. 
powers  exercised  conjointly  with  justices,  in  certain  counties,  1319. 

1211 


INDEX. 

COUNTY  COMMISSIONERS— con?i")iMP(L- 
powers  of  county  exeriiseil  by,  1309.  1.31U. 
liracticiug  law;  (.■oiumissioners  disqualified  for,  210. 

practicing  in  state  cmu'ts,  uiisdeuieauor,  3041. 
prison  bounds  established  by,  l.".3'.i. 

prisoner  captured  abroad  :  expense  of  bringing  into  county  allowed  by,  1287 
qualify  when,  1310. 
records  of  evidenced,  how,  lOK;. 

register  of  deeds  ex  olHcio  clerk  to;  compensation.  i;!24,  20<>0. 
removal  of  county  buildings;  ja-ocednre.  1318  (28),  1310. 
special  term  of  court ;  asked  for  by,  when,  1512. 

duty  of  commissioners  to  draw  jur.v,  1513. 

gi-and  jury  not  drawn  :  exception,  1515. 

notice  of,  published  by,  1513. 
stiK-k  law  elections  held  by  order  of,  1072-1G77. 
strays ;  duty  to  lix  scale  of  costs  for  keeping,  28.34. 
subpoena  to  appear  before;  issued  and  served,  how.  1318  (22). 
swearing  falsely  to  statement  re<iuired  by  law.  i)enalty.  3005. 
tax ;  duties  as  to.     See  Tax. 
term  of  office,  1311.  1312. 
vacancies  in  board  ;  clerk  appoints  in  certain  counties.  1314. 

justices  fill,  in  certain  counties,  1315. 
vacancies  in  county  offices  tilled  by.  when,  30!). 
witnesses  subpcBnaed  before,  compelled  to  testif.v.  1318  (221. 

COUNTY  CONVICTS  :     See  Convicts. 

county  commissioners  may  establish  chaingang.  131S  ( 11 ),  1350. 

insolvents  allowed  compensation  for  work  as,  1355. 

maintained  by  special  tax,  13.59. 

prisoners  liable  to  work  as,  1355. 

sentenced  to  work  on  public  roads,  when,  1355. 

state  convicts  to  lie  farmed  to  work  as,  when,  1358. 

working  female  prisoners;  misdemeanor,  3.590. 

COUNTY  EXHIBIT : 

receipts  and  disbursements  of  county  published  annually,  1388. 

COUNTY  FINANCE  COMMITTEE  : 
compensation  of  members  of,  2781. 
duties  of.  1389. 

ele<-tion  of.  by  county  commissioners,  1389. 
members  of.  suliscrlbe  to  oath.  1390.  2.3(i0. 
officers  failing  to  settle ;  notice  from,  1392. 
powers  of.  defined.  1391. 
statement  of  county  finances  made  by.  l.".,S9.  139:1. 

COUNTY  .T.VIL  ;     See  County  Prison. 

COUNTY  IlOilE  :     See  Home  for  Aged  and  Infirm. 

COUNTY  LINE : 

chan.ged ;  effect  on  granls.  17.".0. 

dispute  concerning  dividing  lines  of  counties,  settled  how .  l.'!22. 

COUNTY  TOOK  : 

connt.v  commissioners'  d\it,v  (o  iirovide  for,  1329. 

estate  of  pauper  liable  to  counly  for  expenses.  1.'!.'!o. 

families  of  militiamen  s\ippor(c<l  by  county.  1331. 

home  for,  provided,  1327-1330.     See  Home  for  Aged  and  Infirm. 

indigent  persons  ownilng  property;  comity  reimbursed  for  aiding.  13.30. 

1212 


INDEX. 

COUNTY  POOn— continued : 

legal  settlement  of;  acquired  bow.  1333. 

conte.sted  bv  commissioners,  1327-1334. 
maintained,  wben,  1328.  1331,  1332,  1334. 
maintaining  among  tbeir  friends,  how,  1332. 
nonresident  pauper :  county  of  legal  settlement  liable  for,  13.34. 

not  able  to  be  removed,  supported,  how,  1334. 

removed  to  proper  coimtj',  procedure,  1334. 

COUNTY  PUISON: 

adjoining  oount.v.  used,  when  home  county  has  none,  1349,  1350. 
allowance  for  United  States  prisoners  in,  1342. 
bounds  of;  established  by  county  commissioners,  1339. 

bond  of  prisoner  to  keep,  1340,  1341. 

recorded  in  county  records,  1339. 
built  and  maintained  how,  1335. 

confining  prisoners  in  improper  apartments,  misdemeanor,  36G0. 
convicts.     See  t'ounty  Convicts, 
county  connnissioners ;  duty  to  furnish  bedding  for,  1338. 

provide  for  heating  of,  1337,  3754. 

prison  bounds  designated  by,  1339. 
destruction  of ;  prisoners  committed  to  another  county,  1351. 
divided  into  five  apartments,  1336. 
.iail.     See  Jail. 

.jailers"  duties  as  to  prisoners.     See  .Jailer, 
none ;  prisoners  taken  to  ad.ioining  county,  1349,  1.3.50. 
no  person  imprisoned  except  in ;  proviso,  3151. 
prisoners.     See  Prisoners. 

danger  of.  escaping  from,  militia  called  out,  how,  134.5. 
compensation  of  militia,  1345. 

escaping  from  prison  bounds ;  procedure  on  bond,  1340,  1341. 

expenses  of :  collected  out  of  estate,  when,  1.346. 
paid  by  county,  when,  1346. 
sheriff's  duty  to  report  to  county  commissioners  condition  of  bedding,  1338. 
United  States  prisoners  in,  1342. 
unsafe;  prisoner  committed  to  another  county,  1.350. 

COUNTY  REVENUE : 

claims  against  ttie  county,  1384-1388.     See  County  Claims, 
county  commissioners:  audit  accounts  and  provide  payment.  1318  (5). 
duty  to  direct  application  of  county  revenue,  1379. 
provide  for  pa.yment  of  debt  by  taxation,  1318  (2). 
county  officers ;  annual  accounts  of  moneys  in  hands  of,  1380. 
registered,  1382. 
failing  to  file  accounts  ;  compelled,  how,  1381. 
finance  committee ;  election,  duties,  powers,  1389-1393.    See  County  Finance 

Committee, 
fines  and  penalties;  record  of,  kept  by  clerk,  915  (20). 

imposed  by  courts,  paid  to  county  treasurer  for  schools,  1378. 
record  of,  kept  by  clerk  and  .iustices,  1377. 
report  of,  to  state  superintendent  public  instruction.  1378. 
money  in  hands  of  clerk  vised  as,  until  when,  923. 
taxes.     See  Tax. 

collected  by  sheriff,  settlement  of,  1376. 
levied  how  and  by  whom,  when,  1318  (25),  1319. 
never  exceeds  double  state  tax.  1318  (25). 
special  taxation  provided  for,  1318  (25),  1319. 
to  provide  for  county  convict  force,  1359. 
to  support  house  of  con'ection,  1361. 

COUNTY  SUPERINTENDENT  OF  HE.A.LTn  :     See  Volume  II. 
duty  with  regard  to  contagious  diseases,  3440-.3449,  3453. 


INDEX. 

COUNTY  SURVEYOR  :     See  Surveys, 
bond  of,  2G5,  273.  308,  308. 
duty  to  test  needle  and  chain,  3075-3078. 

violating  duty,  nii.sdemeanor,  3684,  3743. 
entries;  survey  of,  bj'.  1716. 

administers  oatli  to  chain-bearers,  1717. 

appoints  deputies,  1719. 

malces  plots,  1716,  1719. 

sends  to  secretary  of  state,  ^^-ith  order,  1718. 

phosphate  beds  surveyed,  1752. 

special  s\u-veyor  appointed,  when,  interested,  1710.  1721. 
failing  to  make  record  of  survey  of  entrv ;  peualt\-,  172G. 
fees  of.  2802. 

for  making  survey  of  enti-y  ;  demanded  in  advance,  1724. 
grants  to,  prior  to  1829  confirmed.  1746. 
liable  for  misconduct  of  his  deputies,  1720. 
may  administer  oaths,  2361. 
oath  of,  2357,  2358,  2300. 

oyster  land,  entry  of;  map  furnished  by.  2377. 
partition  of  land  :  employment  of.  2493. 

swearing  falsely  to  statement  required  ;  misdemeanor,  3605. 
tiu'ns  over  papers  to  successor,  1726. 
vacancy  iu  office  of,  filled  by  county  commissioners,  1321. 

COUNTY  TREASURER : 

account  of  receipts  and  disbursements  of  county  kept  by,  1398  (2). 
accounts  for  trust  funds  to  county  commissioners,  wlien,  1403. 
action  on  bond  of,  brought  by  commissioners,  when.  1406. 
administers  property  left  in  trust  for  benefit  of  county,  1400. 
annual  report  of,  to  comity  commissioners,  what  to  contain,  1380,  1381. 
bond  of.  297. 

additional,  required,  when  county  ti-ust  funds  paid  to,  1401. 
books,  papers,  etc.,  delivered  to  successor,  upon  term  expiring,  1405. 
compensation  of,  2778. 

county  claims  never  jiaid  by.  until  audited  and  allowed.  1404. 
county  money  kept  by,  and  duly  accounted  for,  1398. 
county  officers  called  on  by,  to  tiu'n  over  funds,  1398  (3). 
duties  of,  1398. 

dying ;  duty  of  personal  representatives  as  to  boolcs,  1405. 
election  of,  1394. 

embezzling  funds  or  property  of  office  of,  how  punislied.  3408. 
examining  committee  of  books  of,  compensation,  2779. 
failing  to  account  for  certain  moneys;  penalty,  138.3. 

to  malce  report  as  treasurer,  coimty  school  fund  :  misdemeanor,  3839. 
.settle  on  notice  from  finani'e  committee,  penalty,  1.392. 
fines,  forfeitures,  etc.,  account  of,  kept  by,  1398  (4). 
forfeits  office  when  speculates  in  county  claims,  1399. 
monthly  account,  receipts  and  disbursements,  posted  by,  139S  (2). 
oath  of,  2358,  2360. 
office  of ;  may  be  abolished  or  restored,  1.395. 

abolished,  slieriff  acts  as,  1.39.5. 
official  designation  of,  given  to  any  person  acting  as,  1396. 
re<:-ord  of  rejiorts  of.  kept  by  clerk,  915  (31). 
refunds  money  paid  on  forfeito<l  recognizance,  when.  3222. 
reports  of,  record  of,  kept  by  clerk,  915  (31). 
sheriff  acts  as,  when  oltico  abulishod;  bond  liable,  1.397. 
swearing  falsely  to  statement  required  by  law.  misdemeanor.  .360.5. 
term  of  office  expiring,  duty  of,  1405. 
treasurer  ex  olBcio  of  connt.v  board  of  education.  1.396. 
vacancy  in  office  of;  filled  by  county  commissioners,  1321. 

COUNTY  WORKHOUSE  :     See  House  of  Correction. 

1214 


INDES. 

COURTHOUSE : 

built  and  maintained,  how,  1335. 

removal  of;  how  accomplished,  1318  (6)   (28),  1319. 

site  of,  designated  how  and  by  whom,  1318  (6)   (28),  1319. 

COURT-MARTIAL : 

person  swearing  falsely  before;  perjury,  3612. 

COURTS,  JUSTICES' : 

acc-ount  or  demand  exhibited  by  request  of  party,  1469. 

refusal  to  exhibit ;  no  evidence  allowed,  1469. 
accused ;  escaping  into  another  county,  arrested,  how,  3160. 
allowed  bail,  when,  3207. 

bound  over  to  court,  3202.     See  Preliminary  Hearing, 
entitled :  to  copy  of  court  papers,  3200. 
papers  a  bar  to  indictment,  3260. 
to  counsel.  3150. 
failing  to  appear,  forfeits  recognizance,  3223. 
judgment  nisi,  3223. 
notice  to  sureties,  3223. 
judgment  final,  3224. 

procedure,  when  bond  over  two  hundred  dollars,  3225. 
action,  civil ;  begun  how,  1444. 

on  former  judgment,  evidence  in,  1477. 

note  or  account :  how  plaintiff  complains,  1465. 
action,  criminal ;  begun  by  warrant,  3156. 
amendment  of  warrants,  pleadings,  etc.,  allowed,  1407. 
another  justice  associated  in  trials,  3154. 
answer  in,  contains  what,  1460. 

appeals ;  generally.     See  Appeal,  Civil  Action  ;  Appeal,  Criminal  Action, 
in  civil  actions — 
allowed,  1489. 
dismissal  of,  when,  607. 
docketed,  and  trial  had  de  novo,  608-009. 
does  not  stay  execution,  1490. 
heard  how,  in  superior  court,  607-609. 
notice  of,  1491. 

in  open  coui't,  1492. 
return  to  notice  of,  1493,  1494. 
defective ;  amended,  1494. 
,     made  in  ten  days,  1493. 

not  made,  how  compelled,  1493. 
stay  of  execution  pending.  1485-1488. 
when  and  how  taken,  1491. 
in  criminal  actions — 

allowed  defendant,  from  sentence,  3274. 

from  judgment  on  peace  warrant.  3173. 
defendant  and  witnesses  bound  over,  3274. 
papers  sent  to  appellate  court,  return,  etc.,  3275. 
trial  de  novo  in  superior  court,  3274. 
arrest  and  bail;  72(i-757,  147.5,  1496   (17-25). 
arrest,  criminal  action.     See  Arrest,  Criminal  Action, 
attachment,  75S-7S9.  1496  (.3-16)   (47).     See  Attachment. 
bail  taken  by ;  duty  of  justice,  .3212.     See  Bail,  Criminal  Action, 
bastardy  proceedings,  2.52-264.     See  Bastardy  Proceedings, 
bonds  for  cost  in.     See  Bond  for  Cost, 
civil  procedure ;  chapter  on,  applicable  when,  1473. 
claim  and  delivery  proceedings,  790-802.     See  Claim  and  Delivery. 

chapter  on  civil  procedure  applicable,  1475. 
conunitment  of  prisoners,  3230-3232.     See  Commitment, 
shall  state  what,  3259, 

1215 


INDEX. 

COUUTS.  JVSTICES'— C'Jii I i lined : 

complaint,  civil  action,  contains  what,  14.50.  1405.     Soc  Ooniiilaint. 
complaint,  criminal  action,  to  obtain  warrant,  3157. 
constables.  Unties  in.  0;>7,  938.     See  Constable, 
contempt  of ;  inniished  how,  939-042. 
coutiunance  of  action  in.  when,  1472,  3213. 

prisoner  allowed  bail,  when.  3213. 
conversion  of  personal  jiropertj'.  action  for.  147(i. 
costs,  1249-1308.     See  Costs. 

ail.jn(lge<;l  against  jn'osecntor  when,  i;!(i7. 
bonds  for.     See  Hond  for  Cost. 
defendant  imprisoned  for  f.-iilure  to  pay.  l.'id.s. 
itemized  when  party  demands,  12.'57. 
justices'  duty  in  entering  .iudgment,  1257. 
plaintiff's  bond  for.  on  defendant's  appeal,  G06. 
who  pa.vs,  generally,  1307.     See  Costs:  Criminal  Procedure, 
criminal  procedure.     See  Criminal  Procedure:  Preliminary  Hearing, 
defendant,  criminal  action.     See  under  this  head.  Accused,  etc, 
defendant  (civil)  failing  to  appear:  plaintiff's  dutj".  1404. 
demurrer ;  to  evidence,  539, 

to  jileading  :  grounds  for,  1461. 

sustained;  amendment  allowed,  14(')2, 
depositions  in,  ]((4(1.     See  Dejiositions. 
dockets;  tiled  with  clerk  of  court,  when  filled.  1117. 
furnished  b.v  county  commissioners.  1410. 
verdict  of  .Inry  to  be  recorded  in,  1443. 
ejectment  of  tenant  by;  procedure.  211111-2010.     See  Landlord  and  Tenant, 
enforcement  of  liens.     See  liien. 
evidence  in.     See  Evidence, 
execution;  issued,  and  returnalilc  when.  1481. 

i.ssued  by  clerk  to  sheriff,  usual  form.   1470. 
none  against  land,  14S'2.  2(«0. 
stay  of;  for  what  time,  1483. 
effect  of,  1479. 

none;  when  judgment  on  judgment,  ll.S:',. 
security  given.  1484. 

inidertakiug  for;  given  before  clerk,  1485. 
copy  of.  fm-uislied  appellee.  1488. 
given  before  justice.  1480. 
what  to  contain,  1487. 
felon  outlawed  by,  3183. 

fence,  dividing,  valued  by,  when.  lOGfi.  ' 

foreign  coiijoration  summoned  before,  1448. 
form  not  material  in,  but  substance,  1407. 
forms  of  actions,  1473. 
forms  of  iirocess,  etc.,  used — 
appeal ;  notice  of,  1490  (30). 

ret\u-n  to,  1490  (40). 
arrest  and  bail,  affidavit  of  fraud,  1490  (17). 
order  of  an-est,  1490  (19). 
undertaking:  of  plaintitT.  1400  (18). 
of  bail.  1490  (20). 

allowance  of,  1490  (25). 
exceiition:  notice  of.  1490  (21). 
iustification,  1490  (24), 

notice  of,  1400  (22). 
notice  of  other  bail,  1490  (•23). 
attachment;  affidavit  to  obtain.  1490  (,3-5). 
extHution  in.  1490  (47). 

garnishment;  order  to  third  person  to  apiwar.  1  I!t0  (12). 
alt.ichment  to  enforce  obedience  to  order,  149i!   (13). 
invciUory  of  officer  executing  warrant,  1490  (9). 

1210 


IAD  EX. 

COUUTS,  3X1STICKS'— continued : 

forms  of  process,  etc..  used — continued. 
iittachuient — continued. 

notice  of  levy,  where  property  not  tangible,  149G  (11). 
order  directing  sale  of  perishable  property,  149G  (10). 
publication,  by  plaintiff  in,  1490  (10). 
undertalviiig.  plaintiff's,  upon,  149G  (G). 

defendant's,  1490  (14). 
vacated:  order,  1496  (15). 
warrant  of,  1496  (7). 

Gthcer's  return  indorsed,  149G  (8  I. 
constable's  oath  in  charge  of  .iury.  1496  (3.3). 
contempt;  record  of  conviction.  1496  (48). 

warrant  of  commitment,  1496  (49). 
demurrer  to  complaint,  1490  (35). 
to  answer,  1490  (.S(>). 
.iiidgment  upon,  149G  (.'IT.  38). 
dismissal  for  want  of  jurisdiction,  149G  (41). 

where  land  title  in  question.  149G  (42). 
execution,  149G  (40). 
juror:  oath  of.  1490  (32). 

summons  against  defaulting.  1490  (34). 
landlord  ejectment  of  tenant.  2(111. 
subpcena  :  duces  tecum.  149G  (28). 

to  testifv,  1496  (20,  27). 
Kinnmons,  144.1.  1496  (1,  2). 

lender  of  judgment,  1496  (43). 
acceptance  of,  149G  (44). 
judgment  on,  1490  i4'i). 
venire,  1496  (31). 

witness:  proceedings  against  defaulting.  1496  (30). 
oath  of,  1406  (29). 
fugitive  from  justice;  outlawed  by,  3183. 

warrant  for  fugitive  from  another  state.  3184. 

justice  transmits  proceedings  to  governor.  318.'j. 
habeas  corpus  ad  tc^stilicandum  issued  by.  when.  ISHG. 
insolvent  debtor  disclKn-god  l)y,  when.  1918. 
judgment.  .5(j2.     Sec  .Tndgment. 
action  on,  barred  when,  392. 

against  nonresident  defendant  entered  when.  1451. 
appealed  from  :  duty  of  clerk  when  appellate  court  decides.  1479. 
criminal  action  ;  in  accordance  with  verdict.  32.58. 
effect  of,  1479. 

in  another  county :  lien  from  when,  1479. 
must  include  itemized  cost.  1257. 
docketed  in  superior  court,  1479. 
lien  of;  on  realty,  from  docketing,  1479,  1482. 

on  personalty  from  levy  only.  1482. 
not  enforceable  against  land  luitil  docketed.  1482. 
on  witness  ticket,  how  rendered,  1299. 

removed  to  another  county  to  enforce  against  personalty,  1480. 
stay  of  execution  ;  transcript  furnislied  party  cast,  1479. 
subchapter  .Tndgment  appli<  alile.  ."02. 
suretyshiji  nnist  Ijc  sliown  in  judgment,  wlien.  2840. 
tender  of;  effect  of  nonacceptance,  1471. 
transcript  of,  furnished  when.  1479. 
jurisdiction  ;  in  civil  cases — 
actions  for  tort,  1420. 

actions  on  contract.   1419,   1-12],  24;>5.  2-l."i3.  2407. 
apprentices  leaving  emjiloyer ;  pro<'edure.  20."). 
ejectment  of  tenant  or  cropper.  2002. 

Rev.  Vol.  1—73  1217 


INDEX. 

COURTS,  JUSTICES'— continued. ■ 

jurisdiction;  in  civil  cases — continued. 

none;  wbere  land  title  in  controversy,  1419,  1421,  1423. 
action  dismissed ;  new  suit  in  superior  court  1424. 
roads ;  changing  of.  2fif».3. 

township  ;  justices  may  try  causes  out  of,  1425. 
in  criminal  cases — 

bastardy  proceedings,  252. 

exclusive  original,  in  what  cases  ;  proviso,  1427. 
justice  tries  when  satisfied  of,  325G. 
malicious  injury  to  real  property,  when,  3677. 
peace  warrants.  31G5. 
jurors  drawn,  paid.  etc.     See  under  this  head.  Jury,  etc. 
jury ;  amount  not  used  to  compensate,  refunded,  1432. 
box ;  furnished  by  county  commissioners,  1428. 
how  divided  up,  1429. 
kept  by  justice,  1429. 
names  of  jurors  serving  placed  in  second  division,  1441. 

not  serving,  returned  to  first,  1437. 
prepared  how,  1429,  1430. 
commissioners  furnish  list  of  jurors  to  justice,  1428. 
compensation  of,  1432,  1442. 
composed  of  six :  less  number  by  consent,  1440. 
continuance  after  return  of,  deposit  necessary,  1442. 
demand  for.  continues  case,  1433. 
drawn  from  panel  of  twelve,  how  :  challenged,  1433. 
either  partj'  may  demand :  deposit,  1432. 
nonresident  of  township  need  not  serve  on  ;  exception,  1439. 
panel  drawn  by  justice,  parties  present.  1433. 
peremptory  challenges  limited  to  two,  14.3G. 

summoned  by  constable  on  order  of  justice.  1434. 
sworn  and  empanelled.  144.3. 
talesmen  selected  from  bystanders,  when,  1438. 
trial  by.     See  Trial.  Civil  Action. 

waived  if  not  demanded,  1431. 
verdict  of,  recorded  on  docket,  1443.  3258. 
justice  ;  election,  duties,  etc.     See  Justice  of  the  Peace. 

may  associate  another  in  trial,  when,  3154. 
liens;  proceedings  to  enforce.  2020-2031.     See  Lien, 
limitations,   statute   of,   applicable  to,   359-379,   390-399,   1473,   3147.     See 

Limitations,  Statute  of. 
mayors  have  concurrent  jurisdiction  with,  when,  3059. 
new  trial  in,  not  allowed,  1489.    See  under  this  head.  Rehearing,  etc. 
notices  in  cases  in.  served  how,  938. 
parties  to  actions,  400-418.  1173.     See  Party  to  Action  or  Proceeding. 

peace  warrants,  310.5-3175.     See  Peace  Warrant, 
plaintiff's  cost  bond  on  defendant's  appeal,  OOC. 
pleadings  ;  amendment  nf.  allowed  when,  14(i8. 

defendant  may  answer  that  land  title  in  question,  1422. 

effect  of  such  answer,  1423. 
docketed,  14.5,8. 
generally.    See  Pleadings. 

may  be  amended  on  liberal  terms,  when,  1408. 
no  i)art!cular  form  of,  1403. 
oral  or  written,  1458. 
rules  of  pleading,  civil  actions,  14.57-1403. 
substance  of.  not  form,  regarded,  1407. 
preliminary  hearing,  criminal  cases,  3190-3200.     See  Preliminary  Hearing, 
proceedings  in,  1410,  1457-1478.     See  also.  Criminal  Procedure, 
process;  issued  where  by  justice.  142,5.  1447-1449. 
not  nuashed  for  lack  of  form,  1407. 

1218 


INDEX. 

COURTS,  JUSTICES'— cmtinued: 

l)rosecutoi',  criminal  action  :  who  is  and  how  determined,  1295. 

imprisoned  for  nonpayment  of  costs,  1297,  1307. 
real  estate ;  actions  for  damages  to,  in,  1470. 
rehearing  granted  absent  party  ;  procedure,  1478. 
removal  of  action  before  another  justice,  1455,  1456. 
rei)ort  made  to  clerk  of  eases  disposed  of,  3261. 
search  wan-ants ;  issued  by,  when  ;  procedure,  3163.  3164. 

for  deserting  seamen,  3557,  3558. 
sentence.    See  Criminal  Procedure. 
strays  a]ipraised  by,  how,  2835. 
subpoena  ;  duces  tecum  issued  for  railroad  officials,  1454. 

issued  for  witnesses  to  testify,  1452. 

to  other  counties,  when  deposit  made,  1453. 
authenticated  how,  1453. 
summons ;  co-defendant  in  another  countj',  1447-1449. 

contains  what,  1445. 

on  foreign  corporations ;  returnable  where,  1448. 

service  and  return  of,  1446. 
tender  of  judgment ;  effect  of  nonacceptance,  1471. 
ti-ial  by  jury ;  demanded,  when,  1431.     See  under  this  head,  .Tury,  etc. 

waived  if  not  demanded.  1431. 
variance  immaterial  unless  adverse  party  misled,  1460. 
undertaking  of  bail ;  civil  actions.     See  Arrest  and  Bail,  Civil  Action. 

criminal  actions.     See  Bail,  Criminal  Action, 
undertaking  given  to  stay  execution  pending  appeal,  14S5-14S8. 
venue.     See  ^'enue,  Civil  Action ;  Venue,  Criminal  Action, 
verdict  of  jury  in,  1443,  3258. 
warrant ;  issued  by,  when,  3156,  3157. 

contains  what,  3158. 

executed  where,  3159. 

indorsed  how,  3100. 

peace  warrant  issued,  3167. 

returnable  before  whom,  3162. 

who  serves,  3160. 
widow's  year's  allowance  allotted  by,  when,  3098. 
witnesses ;  bound  over  with  accused,  3202,  3203.     See  Witnesses, 
on  appeal  in  criminal  action,  1304. 

fees  of,  2803. 

subpoenaed ;  fined  for  uonattendance,  1452. 

from  another  county ;  compensation,  1453. 

COURTS,  SUPERIOR: 

appeal  from,  to  supreme  court,  587,  591.  592. 

detern.ined,  certificate  returned  :  procedure,  1.526. 
arguments  to  jury  controlled  by  court,  216. 
attorneys  at  law  licensed  to  practice  in,  207,  209. 

debarred,  when,  211,  212. 
civil  actions  tried  at  criminal  terms  by  consent,  when,  1.507. 

procedure  in.     See  Civil  Procedure. 

process  and  motions  at  criminal  terms.  1507. 

terms  of  court ;  criminal  process  not  returnable  to,  1508. 
no  grand  jui-y  drawn  for.  1508. 
.solicitors  do  not  attend,  1508. 
clerk  of.     See  Clerk,  Superior  Court, 
contempt  of,  939-945.     See  Contempt. 

corporation  dissolution  ;  judge  may  appoint  receiver  or  trustee.  1203,  1204. 
criminal  procedure  in.     See  Criminal  Procedure, 
equity  eases  (old)   transferred  to;  jurisdiction  over,  1.503. 
ex  parte  petition  heard  before  judge  diiring  vacation,  1.501. 
grand  jury  ;  not  drawn  for  civil  terms.  1,508.     See  Grand  .Jury. 

not  drawn  for  special  terms  imless  governor  orders,  1515. 
1219 


INDEX. 

COURTS,  SUVVAilOn—conthiiKi!: 

judge  of;  oath.  etc.     See  Judge,  Superior  Court. 

issues  wiunuits  for  apprebeusion  of  crimiuals,  3150. 

may  e.xihaufie  courts  with  another  judge,  1511. 

not  attending ;  procedure.  1510. 

rotates  in  holding  courts,  1509. 
jurisdiction;  civil  and  criminal  generally.  1500. 

appeals  from  clerk,  justice,  mayor,  etc.,  I.'i02. 
from  c-orporatiou  commission,  1074. 
county  commissioners.  2(!8(). 

in  vacation,  1501. 

over  corporate  elections.  1188,  1180. 

restoration  of  citizenship.  2G7.5,  2(j7(i. 
jury  in.     See  Jiiry. 

minute  docket  of,  kept  by  clerk,  915  (0). 
minutes  of,  of  preceding  day  read  each  morning.  1510. 
order  of  business  of.  .533. 

parties  imiting  in  proceedings,  case  can  be  heard  in  vacation,  1.501. 
pleadings  in.     See  Pleadings, 
practice  ill.     See  Civil  Procedure;  Criniiiial  Procedure. 

rules  of.  prescribed  by  supreme  court.  1541. 
prisoners  bound  over  to  regular  term  must  attend  special.  1517. 
Quakers  may  wear  hats  in  presence  of,  1528. 
rotation  of  judges  in  holding,  1509. 
rules  of  practice  in,  prescribed  by  supreme  court,  1541. 
solicitor  discharged  for  drunkenness ;  who  acts,  1499. 
special  terms;  how  ordered  b.v  governor,  1512. 

jurisdiction  and  jxiwers  same  as  regular  term.  151  fi. 

no  grand  jury  for,  unless  governor  orders.  1515. 

notice  of.  1513. 

subpoenas  made  returnable  to.  1517,  1518. 

what  judges  may  bold.  1511. 
supreme  court's  decision  in  criminal  apjieals  certified  to ;  procedure,  1542. 

in  civil  appeals  certified ;  procedure,  152(1. 
term  expiring  during  certain  trials,  court  continues,  etc.,  until  case  dis- 
posed of,  3206. 
terms  of ;  presided  over  by  what  judges.  1500. 

when  held  in  different  coimties,  1.5(iO. 
witnesses  subpcenaed  to  regular,  must  attend  special  term  of  court.  1517. 

COURT,  SUPREME: 

amendments  allowed  to  process  and  pleadings,  on  what  terms,  1.545. 
appeal  from  superior  court  to,  authorized,  1530,  1.5-10. 

certificate  of  determination  of.  sent  superior  court.  1.520. 
attorney  general  not  attending,  substitute  appointed  by.  1551. 
attorneys  at  law  licensed  by,  207,  208. 

claims  against  state:  decision  by,  nierel.v  rcciiiiunondatdry,  1537. 
reported  to  general  assembly,  1.537. 

issues  arising  transfeiTed  to  superior  court.  1.538. 

prosecuted  how,  1.537,  1538. 
clerk  of ;  selection,  duties,  etc.     See  Clerk.  Sujirenie  Court. 

may  be  refpiired  to  record  certain  rc(  rir<ls.  15.5(i. 

oflice  located  at  Raleigh.  1530. 
constitutefl  how,  1.5.32. 

contomiit ;  jiower  of  court  to  punish  I'ov.  0  12. 
convenes  when  and  where.  1535. 
court  of  record.  1530. 

criminal  cases;  decision  certified  to  superior  court;  judgment,  1542. 
decisions  certified  to  superior  court,  executions  for  cost.  1.540. 
dismisses  appeals  when  not  prosecuted  on  notice.  1.543. 
evidence  before;  new.  allowed,  when.  1.545. 
execution  issued  by.  returnable  where  and  oiiforced  how.  1.542. 
1220 


' 


INDEX. 

COURT,  SUPKEME— co»<iJ)«e(/; 

exhibits,  etc.,  proven  before ;  process  to  obtain  witnesses,  1547. 

judgmeut  of ;  tinal,  transmitted  to  superior  court  and  recorded,  when,  1542. 

liow  rendered,  005. 

none  in  Interlocutory  order,  1544. 

to  be  in  writing ;  duty  of  clerls,  154S. 
jurisdiction  of ;  as  court  of  review,  1539. 

as  to  claims  against  state,  1537. 

decision  merely  recommendatoi-y,  1537. 
justices  not  attending  during  week ;  adjourned  till  next  term,  153H. 
legal  name  of,  1530. 
marshal  of;  appointment;  removable  at  will,  15.5.5. 

acts  as  librarian,  1555. 

salary  of,  2770. 
number  of  justices,  1532. 
oath  of,  1533,  2357,  2360,  2301. 
opinions  and  judgments  of ;  not  required  to  be  in  full,  1548. 

to  be  in  writing;  clerk's  duty,  1548. 
parties,  new,  can  be  made,  when,  1545. 

petition  to  rehear  tiled;  execution  restrained  on  proper  terms,  1546. 
(luorum  of  justices  for  transaction  of  business,  1534. 
reporter  of  the  decisions  of  the  court  appointed  by,  1552. 

compensation,  2771. 
reports  of,  disposed  of  by  custodian :  misdemeanor,  3.598. 
rules  of  practice,  supreme  and  superior  courts,  prescribed  by.  1.541. 
sessions  of,  coutiuue  till  docket  disposed  of  or  continued,  1536. 
undertaking  on  appeal,  to,  593. 
warrants ;  power  to  issue,  3150. 

CKEDITOUS:     See  Insolvent  Debtors. 

appeal  by,  on  year's  allowance  to  widow,  3100. 

assignment  by  deed  of  trust  for  benefit  of,  967-973. 

claims  of:  against  corporation,  disallowed  by  receiver;  exception,  1230. 

against  decedent.     See  Administration, 
conveyances,  bona  fide,  to  purchasers,  etc.,  good  against,  964. 
corporation,  may  be  limited  as  to  time  to  present  claims,  1228. 
fraudulent  conveyances  void  as  to,  9(>0.     See  Fraudulent  Convey;) nces. 
liens  of.     See  Lien, 
sin-ety's  notice  to,  to  collect,  2S46. 

ci'cilitdr  negligent,  surety  discharged,  2S47. 
stockliiililcrs  of  corporation  liable  to,  for  unpaid  snhscriptiou,  1102. 

CRIMES  AND  PUNISHMENTS: 

abandomnont :  family  b.v  husband,  33.55. 

husl>;ind  living  with  wife  neglecting  to  support  family,  33.57. 
presumptive  evidence  of,  when  husband  neglects  to  work,  3356. 
abatement  of  nuisance  ordered,  person  refusing,  3440. 
abduction  ;  children  from  parent  or  school,  3358. 

children  by  parent  who  has  forfeited  his  or  her  rights,  3373. 
conspiracy  to  abduct  child  from  parent,  proviso,  3359. 
kidnapping  any  person,  36.34. 

married  woman,  virtuous  since  marriage,  by  male  person,  33(i0. 
woman's  testimony  alone  not  sufficient,  3300. 
abetting:  bigamy,  3301. 

concealing  birth  of  child,  36'23. 

concealing  of  prisoner  when  writ  of  habeas  corpus  issued,  .'5583. 

damaging  of  another's  water-supply,  .3457. 

(listurliance  of  elections  or  officers  thereof,  .3385. 

oiMi)07.zlement  liy  bank  olficers,  332.5. 

railroad  officers,  3404. 

state  officers  of  state  property.  3407. 

1  •_>21 


INDEX. 

CRIMES  AND  PUNISHMENTS— COTi<!««e(f; 
abetting — continued. 

escape  of  couviet,  3G62. 

luiiiisliod  as  felony,  when,  3(jG2. 

physician  aiding  sale  of  liquors  unlawfully,  3519. 

registration  of  illegal  voters,  3395. 

sale  of  mortgaged  property  to  defraud  creditor,  3435. 
abettors  to  duelling  accessories  to  murder  if  one  killed,  3029. 
abortion  ;  person  administering  to  mother  to  destroy  child,  3018. 

person  administering  to  mother  to  procure  miscarriage,  or  injury,  3019. 
accessories  ;  aiders  and  abettors  in  duelling  are,  3029. 

to  felonies  tried  and  punished,  3287-3290.     See  Accessories, 
adulterating  or  misbranding  food  stuffs,  3444. 
drugs  by  pharmceutists,  3048. 
spirituous  liquors,  3512. 
advertisements ;  any  one  mutilating,  before  object  fulfilled,  3709. 
age  of  consent ;  person  marrying  female  under  14  years  of  age,  3368. 

carnal  knowledge  of  female  under,  3348. 
agent,  building  and  loan  association,  acting  without  license,  3327. 
animals;  dying  with  contagious  disease.. owner  failing  to  bury,  3298. 

live  stock.     See  under  tliis  head.  Live  stock,  etc. 

owner  of  animal-killing  dog  refusing  to  kill  dog,  3304. 

owner  of,  having  glanders  or  farcy,  refusing  to  kill,  3296. 

pedigree  of  breeding;  false  representation  of,  .3307. 

selling,  knowing  to  have  infectious  or  contagious  disease,  3295. 

stock  law.     See  Stock  Law. 
appraisers  conspiring  to  undervalue  or  overvalue  land,  3585,  3.586. 
architect  failing  to  furnish  owner  list  of  indebtedness,  etc.,  3663. 
arresting  one  who  has  been  discharged  under  habeas  corpus,  3.581. 
arrest ;  person  refusing  to  assist  officer  in  making.  3701. 
ar.son  ;  attempt  to  commit,  3.330. 

burning  houses,  etc.,  otherwise.     See  Burnings. 

punishment,  3335. 
assault ;  on  election  officers,  3385. 

on  married  woman  with  intent  to  carnally  know,  3025. 

pointing  gun  or  pistol  at  another,  loaded  or  unloaded,  3022. 

punishment  prescribed  in  all  cases  of,  3020. 

secretly,  with  deadly  weapon,  by  waylaying,  etc.,  3021. 

with  intent  to  commit  rape,  3038. 
attempt  to — 

bribe  an  elector  at  an  election,  3386. 

burglarize,  3332-3334. 

burn  dwelling-house,  outhouse,  etc.,  3.330. 

public  bridges  and  buildings,  3337,  3.338. 

carnally  know  married  woman  by  personating  husband.  302.5. 

defraud  insurance  company,  3487. 

produce  abortion.  3018,  3019. 
automobiles;  violating  regulations  concerning,  3793. 
bank  examiner ;  accepting  bribe,  3324. 

making  false  report  as  to  condition  of  bank,  felony.  3324. 
bank-notes;  connecting  different  parts  of  two  or  more  fraudulently,  3420. 

counterfeiting  or  forging,  or  corporate  securities.  3419. 
banks;  malfeasance  of  officers  and  agents,  3.325,  3326.     See  B.auks. 
beacon,  stake,  etc.,  pulling  down,  3500. 
bear-baiting,  3301. 
beating  one's  way  on  train,  3748. 
benevolent  association;  treasurer  embei'.zling  funds  of,  .3409. 

treasurer  lending  funds  of,  without  consent,  :^409. 
bestiality,  3.349. 
betting.     See  Gambling. 


Il^TDEX. 

CRIMES  AND  PUNISHMENTS— continued; 
bigamy  ;  defined,  33C1. 

persou  abetting  the  commission  of  crime  of,  3361. 

venue  of  action  of,  33(Jl. 
birds ;  violation  of  regulations  concerning,  3459-3481.     See  Hunting, 
bitch;  owner  of,  allowing  to  run  at  large,  3303. 
blaclimailing  any  one,  3428. 

board  of  agriculture ;  violation  of  regulation  of,  3294. 
board  of  health  failing  to  give  notice  of  contagious  disease,  3440. 
board  of  internal  improvements ;  certain  officers  not  reporting  to,  3595. 

witness  refusing  to  testify  before,  3093. 
board  of  public  charities ;  otlicers  failing  to  inform,  35G6. 
board  of  supervisors  failing  to  report  as  to  bridges,  etc.,  3770. 
boats ;  crimes  concerning.     See  under  this  head.  Vessels,  etc. 
boilers  ;  tampering  with,  3G67. 

breaking  into  houses  otherwise  than  burglariously,  3332. 
breaking  prison,  3057. 
bribery ;  bank  examiner  accepting  bribe,  3324. 

jurors  accepting  bribe,  3097. 
party  giving.  3097. 

member  of  general  assembly  accepting  bribe,  3570. 

offering  bribe  to  member  of  general  assembly,  3570. 

public  officer  accepting  bribe,  3508. 

offering  bribe  to  public  officer,  3509. 

voters,  at  election,  3386. 
bridges  ;  board  of  supervisors  not  reporting  on,  3770. 

burning  of  public,  3337. 

commissioners  failing  to  keep  up  joint,  2096. 

owner  of  water-mill  failing  to  keep  certain,  in  repair,  3772. 

person  driving  over,  at  faster  rate  than  walk,  3780. 

fastening  vessel  to  bridge  across  navigable  stream,  3774. 

injuring  or  destroying,  3771. 

liable  to  keep  up,  not  repairing,  3773. 

railroads,  etc.,  failing  to  keep  up  certain,  3775. 
buggery  ;  person  committing  crime  against  nature,  3349. 
building  and  loan  association ;  acting  as  agent  for,  without  license,  3327. 

agent  making  false  statement  to  corporation  commission,  3329. 

person  having  books  of,  refusing  to  show  corporation  commission,  3329. 
buildings,  condemned ;  violating  regulations  as  to.  2981-3011,   3798,  3709, 

3802.     See  Buildings, 
buoys ;  dragging,  from  position  carelessly,  3545. 
buoys  or  beacons  ;  injury  to,  by  interfering,  3546. 
burglary;  defined;  ]iunishment  for,  3330-3334.     See  Burglary. 

person  found  about  to  commit,  3334. 
burnings ;  attempt  at  burning  dwelling  or  outhouses,  33.30. 

bridges,  etc..  3337. 

buildings  of  all  kinds,  333.5-3338,  3341-3.345.     See  Burnings. 

crops,  gathered  and  not  stored,  3339. 

incendiary ;  disobeying  regulations  concerning,  3342-3343. 

one's  own  dwelling  for  fraudulent  purposes,  3340. 

sedge  or  grass  standing  on  land  of  another,  3339. 

woods  of  anotlier ;  or  one's  own,  without  notice,  3340. 
butchers;  in  certain  coimties  failing  to  keep  certain  records.  .3803. 

selling  meat  of  diseased  animal,  .3442. 
butterine;  selling,  without  labeling.  3828. 
camp-fires :  wagoners  leaving,  burning,  3347. 
canal ;  injuring  or  obstructing,  without  malice.  3755. 
with  malice,  3754. 

homicide,  when  accident  follows  causing  death,  3754. 

person  establishing,  to  transport  others  than  owners.  3707. 

servient  owner  of,  obstructing,  3375,  3376. 


INDEX. 

CKIMES  AND  PUNISHMENTS— con<i»i/C(?; 

carnal  knowledge  of  married  wouiau  by  perscjuating  husbaiul,  3024. 
virtuous  female  child  between  10  and  14,  3348. 
carrying  concealed  weapons  off  one's  own  premises ;  exceptions,  3708. 
cartways ;  gates  .-icross,  left  oiien  or  injured,  2G1J4. 
castrating  person  or  injuring  private  member  with  malice,  3627. 

without  malice,  3026. 
cattle.     See  under  this  head.  Live  stock,  etc. 

cattle-guards;  railroads  failing  to  maintain,  at  proper  points,  37.'!>3. 
challenge ;  sending  or  accepting,  to  fight  duel,  3628. 
chasing  deer  with  dogs  in  certain  counties,  3460. 
child :  abduction  of,  3358,  3359. 

by  parent  after  rights  forfeited,  3373. 

concealing  birth  of,  3623. 

exposing,  to  fire  by  shutting  up  in  house,  3795. 

minor.     See  under  this  head,  Jliiior,  etc. 
child  labor ;  children  under  twelve,  manufacturer  employing,  3362. 

hours  of  work  in  factories,  regulated,  3363. 

parent  misstating  age  of  child  to  manufacturer,  3304. 
churches ;  biu-ning  of,  3338. 

person  obstructing  way  to,  or  to  spring  used  by,  3770. 
cigarettes :  aiding  minor  to  obtain,  3805. 

selling  or  giving  away,  to  minors,  3804. 
city  tax  collector ;  failing  to  make  settlement,  3009. 
clams ;  taking,  in  close  season,  2423. 
clerk,  superior  court,  acting  without  giving  bond,  3565. 

disposing  of  laws  and  coiu't  reports,  3.'i08. 

embezzling  property  of  office,  3408. 

knowingly  committing  nonresident  Iniiatic  to  hosjutal.  :'.."i91. 

malpractice  in  office,  894. 

practicing  law  in  state  courts,  3641. 

refusing  copy  of  election  returns,  etc.,  3398. 

registering  physician  and  surgeon  illegally,  3647. 

swearing  falsely  to  statement  required  by  law,  3605. 
clerk,  supreme  court,  practicing  law  in  state  courts,  3641. 
coach-house,  stable,  etc.,  burning  of,  3338. 
cocaine:  selling,  except  on  prescription,  38(i6. 
cock-fighting,  .3301. 

commercial  fertilizers ;  person  violating  regulations  concerning,  3821. 
common  carrier:  discriminating  against  connecting  lines.  3751. 

discriminating  between  shippers,  etc.,  3749. 

failing  to  inform  board  of  agriculture  concerning  fertilizers,  3819. 

railroads.     See  imder  this  head.  Railroads,  etc. 
concealed  weajions  :  carrying,  off  premises ;  e.xceptions,  3708. 
concealing  birth  of  child,  302.3. 

concealing  jirisoncr  when  writ  of  habeas  corpus  issues,  .3.583. 
concentrated  feodini;  stuff:  obstructing  inspection  of.  3827. 

sold  witlKnit  ccjniiiliance  with  law,  3807. 
condemned  building:  owner  allowing,  to  stand,  etc.,  .3802. 

removing  notice  from,  3799. 
conspiracy:  to  undervalue  or  overvalue  homestead,  .3585.  3580. 

to  abduct  child.  3359. 

cml)ezzle  railroad  company's  property.  .3404. 

veiuie  of  action,  3404. 
forge  deeds  and  other  papers,  3424. 
I)roniote  rebellion,  .3438. 
constalile:  allowing  prisoner  to  escajie.  .3.577. 

failing  to  make  settlements  as  reriuired.  .3609. 

failing  to  return  process  or  making  false  return,  3004. 

swearing  falsely  to  statement  required  by  law,  3605. 
contested  elei-tidu  :  defeated  iiarty  failing  to  turn  over  books,  etc..  .3001. 

1224 


INDEX. 

C1{IMES  AND  PUNISHMENTS— conffHMCf/; 

contagious  diseases ;  animals  dying  with,  failing  to  bury,  etc.,  3298. 

animal  having  glanders,  etc.,  owner  refusing  to  kill,  329C. 

board  of  health  failing  to  notify  school  authorities,  3-UO. 

bringing  suspected  vessel  to  harbor  without  permission,  3451. 

hog  with  cholera,  owner  failing  to  pen  separate,  3297. 

householder  failing  to  give  notice  of,  3443. 

live  stock  with;  transporting,  across  quarantine  line,  3294. 

physician  failing  to  give  notice  of,  3448. 

selling  or  offering  for  sale  animal  with,  3295. 

traveler  refusing  to  obey  quarantine  regulations,  3454. 
contempt  of  court.    See  Contempt. 

contracting  for  future  delivery,  not  intending  delivery,  3823,  3824. 
contractor  failing  to  furnish  owner  indebtedness  for  labor,  etc.,  3663. 
conveyances  or  other  papers  of  value,   forged,  3424. 

conspiracy  to  forge,  3424. 
convict ;  conveying  message,  weapon,  etc.,  to  aid  escape,  3662. 

conveying  or  selling  to,  article  forbidden  by  rules,  3662. 

officer  maltreating,  3659. 

transported  to  another  county,  escaping  from  officer,  3658. 

working  female  prisoner  on  cliaing.-ing.  3.in(>. 
coroner;  refusing  inquest  over  one  killed  in  mining  accident,  3797. 

swearing  falsely  to  statement  required.  .'jOdo. 
corijorations ;    agent    refusing    certain    demands    by    officer    with    execu- 
tion, 3G00.  

officers  and  agents  making  false  entries  in  books,  3325. 
embezzling  funds  of,  3325,  340G. 
failing  to  turn  over  moneys  to  pay  tax,  3786. 
fraudulently  issuing  certificate  of  stock,  3421. 
corporation  commission ;  witness  refusing  to  appear  and  testify,  3691. 
cotton;  buying  less  than  bale  seed  cotton.  \Aithout  keeping  record,  3812. 

buying  or  selling  in  less  than  bale  at  night,  3813. 

deducting  from  weight  of ;  exceptions.  .3816. 
cotton-seed  meal '  selling,  with  less  ammonia  than  law  prescribes,  3814. 

selling,  \\ithout  being  inspected  and  branded,  3814. 
cotton-weigher  failing  to  take  and  file  oath  before  acting,  3815. 
counterfeiting ;  bank-notes,  3419. 

coin  of  gold  or  silver.  3422. 

selling  goods  branded  with  brand  of  another,  3850. 

tools ;  person  possessing,  for  the  purpose  of,  3423. 
county  claims ;  speculating  in.  3575. 
county  conunissioners ;  approving  bond,  knowing  insufficient.  3573. 

failure  of,  to  heat  jail.  3574. 

perform  dutj'  required,  3590,  3592. 

ju-acticing  law  in  state  courts,  3641. 

swearing  falsely  to  statement  required  by  law,  3605. 
county  finance  committee :  failing  to  obey  summons  of,  1391. 
county  oflicers  embezzling  securities,  etc.,  3406.  3408. 
county  treasurer ;  failing  to  make  report  of  school  fund,  3839. 

swearing  falsel.v  to  statement  required.  3605. 
court-martial ;  person  swearing  falsely  before,  3612. 
court  pa]>ers ;  fraudulently  taking  or  injuring,  3508. 
creditor  falsely  swearing  to  account  against  assignor,  3617. 
crop  pests ;  preventing  inspection  of  premises  for  exterminating.  3713. 
crops ;  landlord  seizing,  when  nothing  due  him.  3664. 

on  land  surrounded  by  common  fence ;  person  removing  fence,  3412. 

tenant  removing,  before  satisfying  claims  of  landlord.  .3665. 

imgathered,  burning  of,  .3.339. 
cruelty  to  animals:  any  one  instigating.  3.300. 

cock-fighting,  or  baiting  any  bull,  bear,  dog,  etc.,  3.301. 

conveying  animal  in  cruel  manner;  officer  takes  conveyance,  3302. 

cruelty  defined,  .3209. 

1225 


INDEX. 

CRIMES  AND  PUNlSflJIENTS— <:OM«/)i«f(/.- 

custodian  of  public  laws,  etc.,  disposiug  of  snuie,  3598. 
daius ;  obstructing  passage  of  fish  with,  24Ul-24l>i,  2473,  2474,  2479. 
dead  bodies;  distributiug  wrongly  among  medical  schools,  3567. 
deadly  weapons ;  sale  of.  to  minors,  3832. 

assault  with,  3(iJ0,  3ii21. 

carrying,  concealed,  37C18. 
deaf,  dumb  and  blind  schools ;  person  violating  ordinances  of,  3095. 
dealing  in  futures,  3823,  3824. 
deer;  chasing,  with  dogs  in  certain  counties,  3460. 

killing,  out  of  season,  ISSl,  340(1. 
delinquent  taxpayers ;  sheriff  failing  to  publish  list  of,  3587. 
dentists  falsely  claiming  to  have  license  to  practice,  3043. 

practicing  without  license,  3042. 
destroying  nests  or  eggs  of  wild  birds ;  exceptions,  3404. 
detectives ;  body  of  over  three,  going  armed,  370.3. 
directors  or  trustees  not  to  be  contractors,  when,  3572. 
dispensary:  buying  from,  for  minor,  3523. 

violating  law  concerning,  3520,  3525,  3531.     See  Dispensaries, 
disposing  of  mortgaged  jiroperty  to  defraud  creditor,  3435. 

evidence  proving  guilt.  3435. 
disturbing :  elections  and  officers  thereof ;  abetting  the,  3385. 

political  and  other  lawful  meetings,  3704. 

religious  congregations  by  certain  exhibitions,  3705. 
disorderly  conduct,  3700. 

schools,  temperance  meetings,  etc.,  3838. 
docks  of  Wilmington  :  encumbering,  with  logs,  etc.,  ;i.')47. 

repairing  boats  in,  3554. 
dogs;  female;  owner  allowing,  to  rim  at  large,  3.303. 

mad,  biting  any  one;  owner  failing  to  kill.  3305. 

sheep-killing ;  owner  refusing  to  kill  on  notice,  3.304. 
any  one  can  kill,  if  found  at  large,  3.304. 

stealing,  listed  for  taxation.  3."i01. 
dog  tongue,  etc.,  removing,  from  another's  land  in  certain  counties,  3683. 
drainage;  obstructing  drains  on  farms  by  felling  trees,  3382. 

obstructing  drains  used  in  mining  operations.  3380. 

obstructing  streams  in  drainage  district.  3378. 

refusing  to  comply  with  requirements  for  drainage,  3377. 

refusing  to  act  as  commissioner  for  drainage,  etc..  3379. 

servient  owner  obstructing  canal  or  ditch,  337,5,  3.370. 
driving  over  bridge  at  speed  faster  than  walk.  3780. 
druggists ;  dispensing  drugs  without  license,  3050. 

I)liarmacy.  licentiate  in.     See  under  this  head.  Pharmaceutists. 

permitting  unregistered  cleric  to  coniiionnd,  .'{(MO. 

retailing  jioison  without  complying  with  law,  3049. 
drunkenness,  public.  3733. 

duelling;  person  killing  another  in  a  duel,  .3029. 
aiders  and  accessories,  3029. 

person  sending,  accepting  or  fighting  a  duel.  3028. 
dwelling-liouse;  burning,  etc     See  .Arson;  Biu-nings. 
dynamite  sold  without  a  special  license.  .381.7. 
dynamiting  fish,  24(!0. 
elections  ;  abetting  registration  of  illegal  voter,  3.395. 

assaulting  ofiicor  of,  .3385. 

betting  on  result  of,  held  in  this  state,  3384. 

bribing  or  at1em|iting  lo  bribe  voter  at.  .3,380. 

discharging  or  JMlimidating  emiiloyoe  on  account  of  vote,  3387. 

disturbing.  3385. 

felon  not  restored  to  citizenship  voting  at.  3388. 

fraudulently  voting  at.  3394. 

impersonating  another  voter,  3.395. 


liquor  treating  at,  3.389. 


1220 


INDEX. 

CRIMES  AND  PUNISHMENTS— con^iowed; 
elections — conliinied. 

oath  coi-ruptly  taken  by  voter,  3390. 

officer  of ;  making  false  entry,  3394. 
acting  after  removal,  3399. 
failing  to  make  return  of  elections,  3396. 
making  fal.se  return,  3397. 

presenting  at,  false  exemption  from  poll  tax,  3401. 

registering  at,  in  more  than  one  election  ward,  3395. 

register  of  deeds  and  clerk  refusing  copy  of  returns,  3398. 

returning  officer  failing  to  perform  duty,  3391. 

returns  of ;  officer  failing  to  make,  339C. 
making,  falsely,  3397. 

sheriff  failing  to  furnish  clerk  list  paying  poll.  3400. 
not  furnishing  voter  with  receipt,  3402. 
electric  light  plant;  person  tampering  with,  3G6G. 
electric  light  wires  ;  felling  trees  so  they  fall  upon,  3849. 
elopement;  male  person  with  virtuous  married  woman,  33G0. 

woman's  testimony  alone  not  sufficient,  33C0. 
embalming  without  license,  3G44. 
embezzlement ;  administrator,  etc.,  misapplying  funds,  etc.,  3406. 

bank  officers  misapplying  bank  funds,  etc.,  3325. 

benevolent  society  ;  treasurer  of.  misapplying  funds,  3409. 

conspiracy  with  railroad  officers  to  embezzle,  3404. 
venue  of  action.  3404. 

corporation  officers  misapplying  corporate  property,  3325. 

county  officers  misapplying  funds,  etc.,  of  county,  3408. 

defined,  340G. 

guardian,  misapplying  funds,  etc.,  3406. 

insurance  agent  misapplying  company's  fimds,  etc.,  3489. 

mimicipal  officers  misapplying  municipal  funds,  etc.,  3408. 

officer  failing  to  account  for  fines,  etc.,  3.594. 

partner,  surviving,  misapplying  partnership  funds,  etc.,  3405. 

railroad  officer  misapplying  railroad  funds,  etc.,  3403. 
venue  of  action,  3403. 

sheriff  misapplying  taxes,  3410. 

state  institutions ;  officers  of,  misapplying  funds,  3408. 

state  officers  misapplying  securities,  etc.,  3407. 

tax  collector  misappl.ying  taxes.  3410. 

trustee,  or  person  in  position  of,  misapplying  funds,  .3406.  .3410. 
employee ;  enticing,  from  employer,  3365. 

hiring  another's,  33G7. 
encumbering  docks  of  'Wilmington,  3547. 
engines,  boilers,  etc.,  person  tampering  with,  3667. 
enticing  minor  out  of  state,  without  parent's  consent.  .36.30. 
escape ;  convicts  hired  to  another  county  escaping  from  officer,  3658. 

convicts,  state :  officer  allowing  to  e.scape,  3G.59. 

officer  allowing  prisoner  to  escape.  .3577. 

prisoners  breaking  prison.  3657.  3658. 
estrays ;  person  failing  to  comply  with  law  of,  3306. 
exhibiting  stud-horse  or  .lack  within  half  mile  religious  meeting,  3705. 
explosives;  firing  off  bomb,  dynamite,  etc.:  exceptions.  3794. 
factory;  burning  of  any  building  used  as.  3.338. 
fairs ;  injuring  exhibits  at,  or  being  shipped  to  and  from,  3668. 

person  entering  grounds  without  permission,  3669. 
false  entry :  election  officer  making.  3394. 

false  lights  displayed  on  seashore  for  deceptive  purposes.  3430. 
falsely  labeling  packages  of  game,  .3470. 
false  pretense;  generally.     See  False  Pretense. 

advances,  obtained;  by  written  agreement  to  pay  out  of  fund,  34.34. 
by  promise  to  work  and  failing,  3431. 


INDEX. 

CRIMES  AND  PUNISHMENTS— fO»/i(iMC(/; 
false  pretense — continued. 

lorporation,  partnersbip,  etc..  making,  to  obtain  credit,  3432. 

deliuea,  3432. 

insurance  agent:  making,  to  defraud  company,  3487. 

obtaining  premiums  by  false  representation,  348G. 
marriage  license  obtained  by,  3371. 

pedigree  of  breeding  animal ;  falsely  representing,  3307. 
registration  of  donie.stic  animals  procured  by,  3308. 
signature  of  person  obtained  by,  3433. 
fal.'ie  statement;  agent,  building  and  loan,  making,  to  association,  3329. 
corporations,  partnersbips  or  individuals  making,  3326. 
insurance  companies  making,  3492.  3493. 
false  toll  disbes  kept  by  miller,  3G79. 
fast  driving  over  bridges,  3780. 
feeding  stuffs.     8ee  under  tliis  head.  Food,  etc. 
felling  trees  in  drains  and  failing  to  clean  out,  3382. 

negligently  so  they  fall  on  telephone  wires,  3849. 
felonies  defined ;  punishment  for  where  not  prescribed,  3291,  3292. 
female  prisoner ;  working,  on  street  or  road,  3590. 
fences ;  barbed-wire ;  person  putting  up  without  plank  on  top,  37()9. 
cutting  wire,  belonging  to  another.  3413. 
injury  to,  in  any  way,  31173. 
removal  of  common,  without  permission  of  all  tending  crops,  3412. 

from  around  graves,  3681. 
tearing  down  around  stock  law  territory,  3411. 
tenant  injuring  or  removing,  3086. 
fenders  for  street  cars ;  company  failing  to  provide,  3801. 
fertilizers ;    railroads    failing    to    inform    board    of    agriculture    concern- 
ing, 3819. 
removal  or  sale  of,  after  being  condemned.  3820. 
sale  of,  that  contains  deleterious  substance,  3818. 
without  tags,  3822. 
fines ;  failure  of  ofiicer  required  to  file  statement  of,  3579. 
firearms;  person  furnishing  to  lunatics  or  convicts,  .3517. 
conveying,  to  prisoners  to  effect  escape.  3()02. 
selling,  to  minors.  .3832. 
fire  department,  chief  of;  failure  to  apjwint.  .■!(l(i7. 
limits:  failure  to  establish.  3008. 

regulations.     See  under  this  head,  JIunicipal  Corporations, 
fires.     See  under  this  bead.  Burnings, 
fish ;  obstructing  passage  of.  2457.  2461-24(M.  2473,  2474,  2476,  2479. 

preserved,  etc.,  sold  as  fresh,  .■i-H4. 
fish  offal,  throwing,  in  navigable  streams,  2444. 
fisheries  wilfully  destroyed  or  injured,  .3414,  3415. 
fishing:  disobeving  regulations  as  to  fishing  in — 

Albemarle  sound,  24.39.  2440.  2446.  2448.  2451. 

Bear  inlet,  2450. 

Black  river,  2471. 

Brown  inlet,  2450. 

Brunswick  countv.  2472,  2481. 

Capo  Fear  river,  2468,  2483.  3416. 

Carteret  county,  2434-2437, 

Cashie  river,  24.30. 

Cataloochee  ci'oek,  2480. 

Croatan  marshes.  2424. 

Croatan  sound.  2-WS. 

Cumberland  county,  2472. 

Currituck  sound.  24.30.  2-i;!1,  2-I4S. 

Rastmost  river,  2439. 

FoMng  Pan  creek.  24-M.  2)17.  2440. 

Hatteras  inlet.  2440,  24.50. 

1228 


IJS^DEX. 

CRIMES  AND  PUNISHMENTS — continued: 
fishing,  etc.,  iu — cmii'mued. 

Hiawnssee  river,  2458,  2461. 

Linville  river,  etc.,  2482. 

Little  river,  2443. 

Lumber  river,  2475. 

Masonboro  and  Myrtle  Grove  sounds,  2425.  242C. 

Middle  river,  2439. 

Mingo  creek,  2471. 

Nantaliala  river,  2477. 

Neuse  river,  2453,  2454,  2456.  2474. 

New  Bern,  2456. 

New  Hanover  county,  waters  of,  2468,  2470,  2472. 

New  inlet,  2446,  2450. 

Northeast  Cape  Fear,  2469. 

Notla  river,  2458. 

Ocracoke  inlet,  2446.  2450. 

Oregon  inlet,  2446,  2450. 

Pamlico  river,  2427. 

Pamlico  sound.  2428.  2429,  2433.  2440,  2448,  2452. 

Pasquotank  river,  2442. 

Pender  count.v,  waters  of,  2470. 

Perquimans  river,  2441,  2448. 

Roanoke  river.  2439. 

Sampson  county.  2472. 

Scuppernong  river,  2445. 

South  Fork  river,  2473. 

Tar  river,  2427,  2428. 

Trent  river,  2454,  2455,  2456. 

Valley  river,  2458. 
for  menhadens  and  fatbaclvs  wrongfully,  2438. 

using  menhadens,  etc.,  unlawfully  caught,  2438. 
killing  fish  with  dynamite,  etc..  2466. 

nonresident  fishing  with  seine  without  license.  24,"i9,  2467. 
on  Sunday  with  dragnet  or  seine,  3841. 
poisoning  streams  to  kill  fish,  3417. 
resident  aiding  nonresident  to  evade  law,  24.i9. 
robbing  flsh-nets,  2478. 
seining  for  mountain  trout,  3418. 
setting  nets  across  streams.  24.57. 
vessels  in.iuring  fish-nets,  2465. 
food :  adulterating  nr  misbranding,  .3444.     Sep  Food. 

concentrated  feeding  stuff :  sale  unlawfully.  .3807.  3827. 
interfering  with  inspection  of,  3445,  3447. 
refusing  to  furnish  sample  for  analysis,  3445.  3447. 
refusing  to  sell  sample  to  inspector,  34.")2. 

sales  of  meats,  oysters,  etc.     See  under  tliis  head.  JIarket.  etc. 
forcible  entry  and  detainer.  3670. 
forgery,  generally,  3419-3427.     See  Forgery, 
fornication  and  adultery,  3350. 

frauds  perpetrated,  generally.  3428-3436.     See  False  Pretense ;  Frauds, 
futures,  dealing  in,  .3823,  3824,  382.5. 
gambling :  allowing  where  liquor  sold,  3716. 
betting  on  prize  fight,  3707. 

on  election.  3384. 
conducting  faro  banks.  3717. 
dealing  in  futures,  3823,  3824. 
defined,  371.5. 
lotteries.     See  Lotteries, 
playing  at  gaming  tables,  3718. 
tavern-keeper  allowing.  3716. 

1229 


INDEX. 

CRIMES  AND  PUNISHMENTS— co>!f«««C(f.- 

gaming  tables ;  allowiug,  on  one's  preuiises.  3719. 

destroyed  bj'  certain  officers,  3720,  3721. 

keeping.  3718. 

opposing  destruction  of,  3723. 

playing  at,  3718.- 
gas  plant ;  person  maliciously  injuring,  3G71. 

person  tampering  witli  pipes,  etc.,  30(J0. 
gates;  person  leitviug  open  or  in.iuring,  across  public  road,  3411,  3781. 
general  assembly ;  member  of,  accepting  bribe,  3570. 

offering  bribe  to  member,  SSGO,  3570. 

person  swearing  falsely  before  committee  of,  3011. 

witness  failing  to  attend  before  committee,  3092. 
gift  enterprise,  conducting,  3720. 

gin-bouse;  burning  of,  wilfully  and  maliciously,  3341. 
ginseng;  digging,  between  April  and  September,  3714. 

taking,  from  land  of  anotber.  where  fenced,  3502. 
glanders ;  stock  having,  owner  refusing  to  kill,  3290. 
grass ;  burning  of  grass  or  sedge  standing  in  field,  3339. 
graves,  disturbing,  3072. 
graveyards ;  defacing  or  removing  monuments  in,  3080. 

removing  enclosure  to,  3081. 
growing  crops ;  stealing,  from  the  field,  3503. 
habeas  cor]ius  ;  concealing  party  named  in  writ,  358.". 

disobeying  writ,  3597. 

making  false  return  to  writ,  3582. 

recommitting  one  who  has  been  set  at  liberty,  3581. 
harboring :  servant  who  has  unlawfully  left  master,  33(5.5. 

seamen,  3550. 
harbor-masters  of  Wilmington  ;  interfering  with,  3552. 
health,  3440-3454.     See  Public  Health, 
hiring  servant  under  contract  with  another,  .3374. 
hog  cholera  ;  failing  to  pen  hog  sick  with,  3297. 
homestead;  failure  of  officer  to  allot,  before  execution  sale.  .3584. 

undervalued  or  overvalued  by  eonspirac.v,  3.585. 
homicide,  3031-3033.     See  JIurder  and  Manslaughter, 
horse  stealing;  indictment,  3505. 

temporary  use  of  horse.  3509. 
hours  of  labor  of  person  under  18  regulated,  3303. 
householder  failing  to  give  notice  of  contagious  disease,  3443. 
houses ;  person  injuring,  in  any  way,  3073. 

house ;  taking  possession  of  another's,  and  refusing  to  vacate,  3085. 
hunting ;  on  land  of  another  without  permission.  3480. 

on  Sunday  with  dog,  or  found  off  premises  with  gun,  3842. 

violating  regulations  as  to.  34.59-3481.     See  Hunting, 
husband  abandoning  wife  and  children,  3.355. 
Impounder  embezzling  funds  from  sale  of  stock,  3312. 
Incest,  3351.  33.52. 

Infants.     See  under  this  head.  Child ;  Minors. 
Injuring — 

buildings,  etc.,  3073,  .3080. 

buoys  and  beacons,  3.540. 

canals.  37.54,  37.55. 

electric  and  steam  appliances,  300G. 

exhibits  of  fairs,  3008. 

fences,  3073. 

gas  plant,  .3071. 

landmarks,  .3074. 

mill-dams,  etc.,  .3078. 

monuments,  tombstones,  etc.,  3080. 

personal  property.  3070. 

real  property,  3077. 

1230 


INDEX. 

CRIMES  AND  PVmSUMENTS— continued: 
injuring — continned. 

stock  in  the  range,  3314. 

tenant  injuring  Louse,  trees,  etc.,  3C86. 

timber,  3087. 
innocent  woman ;  cliarging,  with  ineontinency,  3640. 
insane  person ;  knowingly  committing  nonresident,  to  hospital,  3591. 

person  assisting,  to  escape  from  hospital,  3004. 
insolvent  debtor  taking  false  oath  of  insolvency,  3614. 
inspector  ;  acting  as,  falsely,  3580. 

of  buildings,  failing  to  perform  dtity,  3010. 
insurance  agent ;  embezzling  funds  of  company,  3489. 

failing  to  exhibit  license,  3485. 

making  false  statements  to  defraud  company,  3487. 

obtaining  premiums  by  false  representation,  3486. 

procuring  insurance  in  unauthorized  foreign  company,  etc.,  3483. 

signing  certain  blank  policies,  etc.,  3488. 

unlawfully  restricting  compensation  of,  3401. 
insurance  company  or  agent  violating  law,  33i;s,  .3482-3407.     See  Insurance, 
insurrection ;  conspiracy  to  overthrow  government,  3438. 
intimidating,  or  attemiiting  to  intimidate,  witnesses  or  jurors,  3696. 

voter  at  election,  or  after,  3387. 
jail;  county  commissioners  failing  to  heat,  3574. 
jailer ;  confining  prisoner  in  improper  apartments,  3660. 

injuring  prisoner,  3001. 

refvising  to  obe.v  commitment  of  prisoner  from  another  county,  3603. 
judgments,  or  securities ;  person  forging,  3425. 
jurors  ;  accepting  bribe,  3097. 

intimidating  or  deterring  from  attending  court,  3606. 
justice  of  the  peace ;  acting  after  removal  from  township,  3589. 
before  qualifying,  3589. 

failing  to  return  dockets,  etc.,  to  clerk,  3578. 

knowingly  committing  nonresident  lunatic  to  hospital,  3591. 

marrying  white  person  and  negro  person,  3370. 

practicing  law  in  state  courts,  3641. 

refusing  itemized  bill  of  costs  when  demanded,  3588. 

swearing  falsely  to  statement  required,  3605. 
kidnapping  a  person,  3034. 

killing  game  out  of  season,  3460.     See  Close  Season, 
land ;  forcible  entry  and  detainer,  3670. 

malicious  injury  to.  3077. 

trespass  on,  3320,  3321,  3480,  3688,  3741,  3745,  3746,  3685. 
landlord ;  seizing  tenant's  crop  when  nothing  due,  3664. 

violating  contract  with  intent,  in  certain  counties,  3366,  3367. 
landmarks;  wilfully  altering  or  removing,  3674. 
larceny,  3408-3511.    See  Larceny. 

branded  timber ;  person  taking  away,  secreting,  etc.,  3853. 

destroying  timber  marks  with  felonious  intent,  3855. 

fish  from  fish-nets,  2478. 

ginseng;  taking  from  land  of  another  where  fenced,  3502. 

oysters ;  from  private  beds,  2401. 
legal  notices ;  person  defacing  or  tearing  down,  3710. 
lessee  of  land  surrendering  to  other  than  landlord,  3682. 
letters;  wrongfully  opening,  or  publishing  contents,  3728. 
lewd  women  committing  lewdness  with  or  in  pre.sence  of  student,  3353. 

prosecution  mUst  be  within  six  months,  S353. 

student  may  give  testimony,  3353. 
libel,  36.35. 

license  tax;  person  failing  to  pay,  3787. 
lien ;  secreting  property  to  prevent  enforcement  of,  3436. 
lights,  false;  displaying,  on  seashore,  3430. 


IXDEX. 

CRIMES  AND  TUNISHMENTS— (o/i^/ducrf; 

liquors;  furuisliiug,  to  lunatic  or  couvicts,  ;)517. 

dispensaries.     See  Disijeusaries. 

gambliug  allowed  in  bouses  where  sold,  3711!. 

.Ltiviiii;,  away  at  elections,  XiX'J. 

iiiaiuifaolure  of,  3012-3535.     See  Liquors. 

ufliters  tailing  to  execute  law  as  to,  3526. 

pliysiciau  abetting  sale  of.  unlawfully,  3519. 

public  drunkenness  in  certain  counties,  3733. 

sale  of,  3512-3535.     See  Liquors, 
live  stock ;  driven  in  stock  law  territory  ;  crops  injured.  3321. 
action  barred,  when,  3321. 

driving  another's,  out  of  range,  3314. 

indictment  for,  need  not  name  owner,  3314. 

dying  of  contagious  disease ;  owner  failing  to  bury,  etc.,  3298. 

glanders  or  farcy ;  stock  diseased  with ;  not  killing,  3296. 

injury  to :  in  enclosure  without  lawful  fence,  3313. 
running  in  the  range,  3314. 

killing  in  range  and  not  showing  ears,  etc.,  3315. 

misniarking.  for  fraudulent  purposes,  3317. 

owner  failing  to  pen  hog  with  cholera,  after  notice,  3297. 

pedigree  of  breeding  animal ;  false  registration  of,  3307. 

poisoning,  by  leaving  shrubs  exposed.  3318. 

registration  of,  procured  fraudulently,  3.308. 

running  at  large.     See  Stock  Law. 

selling,  knowing  to  have  contagious  diseases,  3295. 

shipping,  on  Scuppernong  river,  illegally,  3G75. 

stallion  or  stone  mule ;  allowing,  to  run  at  large,  3323. 

stock  law ;  violating.     See  Stock  Law. 

strays ;  owner  not  complying  with  law  of,  3300. 

transported  across  quarantine  line,  3294. 
lotteries ;  aiding,  in  any  way,  3725,  3726. 

advertising,  3725. 

buying  or  selling  lottery  tickets  or  stock  in,  3727. 

conducting,  in  any  way.  3726. 

raffling  off  houses  or  other  property,  3725. 
lumberman  failing  to  remove  obstructions  in  Albemarle  waters,  3551. 
lynching;  person  entering  jail,  or  consjiiring,  to  kill  prisoner,  .3698. 

witness  failing  to  testify  as  to,  3099. 
machinery,  person  tampering  with,  3667. 
maiming;  disabling  ancillier's  body  without  malice  aforethought,  31)20. 

with  malice  aforetliought,  3627,  3636. 
malicious  injury ;  to  gas  plant,  etc.,  3071. 

to  personal  property,  3076. 
real  property,  3677. 
malpractice  of  justice  of  the  peace,  penalt.v,  1414. 
manslaughter.  36.32,  .30.33.     See  Murder  and  Manslaughter, 
market ;  diseased  animal,  meat  of,  sold,  3442. 

fish,  preserved,  sold  as  fresh,  .3444. 

oysters,  preserved,  sold  as  fresh,  3444. 

sausage,  adulterated,  sold,  3444. 
marl  beds ;  failure  to  enclose,  3790. 

marriage  ceremony;  minister  performing,  without  license,  3.372. 
marriage  license  secured  b.v  false  pretense.  3371. 
marriage ;  person  marrying  female  under  fourteen,  3308. 

white  person  marrying  negro  or  one  of  negro  descent.  .3309. 
married  woman;  abduction  of  virtuous,  by  male  person.  .3300. 
woman's  testimony  alone  not  sullicient.  3360. 

carnal  knowledge  of,  by  impersonating  husband,  3624. 
attempt.  3625. 
mayhem.  3020,  3027,  3636. 
meal;  selling,  except  in  certain  packages,  etc.,  3810. 

1232 


INDEX. 

CRIMES  AND  PUNISHMENTS— co)?*mttC(/; 
medicine ;  practicing,  without  license,  3045. 

practicing  without  registering,  3G4G. 
meridian  monument ;  person  injuring,  etc.,  3743. 

person  neglecting  duties  with  reference  to,  3743. 
mill-dam ;  injury  to,  or  obstruction  to  race,  3678. 

obstructing  race,  etc.,  after  proceedings  establishing,  3381. 

owner  failing  to  keep  gate  and  slope  therein,  3383. 

preventing  fish  from  ascending  river,  etc.,  24G1-2464,  2473,  2474,  2479. 
mills ;  burning  of,  3338. 

owner  keeping  false  toll  dishes,  3679. 

failing  to  keep  up  certain  bridges,  3772. 
mines ;  person  violating  any  regulations  regarding,  3797. 
mining;  obstructing  drains  used  in.  3.380. 
minister ;  failing  to  return  marriage  license  duly  certified.  3372. 

marrying  white  jierson  and  negro,  3370. 

performing  marriage  ceremony  without  license,  3372. 
minks ;  trapping,  or  selling  hide  by  nonresident,  3467. 
minor :  aiding  to  obtain  cigarette.s,  380.5. 

allowing  in  liquor  shop,  etc.,  parents  objecting,  3729. 

contractor  hiring,  to  assist  in  changing  raw  material  to  manufactured 
by  piece  or  pound  with  intent  to  cheat,  3428a. 

enticing  out  of  state,  without  parent's  consent,  3030. 

purchasing  liquor  from  dispensary  for,  3523. 

selling  deadly  weapon  of  any  kind  to,  3832. 
liquor  to,  3.524. 
or  giving  cigarettes  to,  3804. 
misbranding  food  stuff,  3444. 
miscegenation  ;  justice  marrying  white  and  negro  person,  3370. 

minister  marrying  white  and  negro  person,  3370. 

register  issuing  license  to  white  and  negro  person,  3370. 

white  person  marrying  negro,  or  one  of  negro  descent,  3369. 
misdemeanor  defined,  3291. 

punishment  where  statute  does  not  prescribe.  3293. 
mismarking  animals  for  fraudulent  purposes,  3317. 
monuments ;  defacing  or  removing.  3680,  3742. 
morphine ;  selling,  except  on  prescription,  3806. 
mortgaged  pro]ierty ;  disposing  of,  to  defraud  creditor,  3436. 

abetting  the  disposition  of,  to  defraud,  etc.,  3435. 

evidence  making  prima  facie  case,  3435. 
mother  concealing  birth  of  child,  3023. 
mountain  trout;  catching,  for  sale.  In  Cataloochee  creek,  2480. 

seining  for,  or  catching  during  certain  months,  3418. 
municipal  buildings;  burning  of,  wilfully  and  maliciously,  3337. 
nuuiieipal  corporations;  buildings  of,  burning,  .3.337. 

Iiuilfling  )-egulations  of.     See  Buildings  in  Towns. 

condemned  buildings ;  owner  violating  regulations,  3798,  3799,  .3802. 

fire  department  chief;  failing  to  appoint,  3007. 

fire  limits:  failing  to  establish,  3608. 

incendiary  fires:  regulations  concerning  violated,  .3342. 

inspector  of  buildings  failing  to  perform  duty,  3610. 

officers  failing  to  account  for  taxes,  3609. 

ordinances  of ;  person  violating.  3702. 

police  failing  to  execute  gambling  laws.  3716. 
failing  to  destroy  gaming  tables,  3720. 

removing  notice  condemning  building,  .3799. 

tax  collector  failing  to  account,  3609. 

water  supply ;  officers  failing  to  inspect.  3861. 
murder.    See  Murder  and  Manslaughter, 
muskrats ;  trapping,  or  selling  hide  liy  nonresident.  3467. 
names  signed  to  certain  petitions  without  consent,  3426. 
national  guard;  violation  of  regulations,  3538-3542.     See  National  Guard. 

Rev.  Vol.  1—74  1233 


INDEX. 

OI{IMES  AND  PUNISHMENTS— con/i»n(e(f; 
nature  ;  crime  against,  3349. 
navigation ;  displaying  false  lights  for  deceptive  purposes,  3430. 

violation  of  regulations  concerning,  3543-3504.     See  Navigation, 
nontransferable  scriji ;  i)erson  issuing,  to  laborers,  3730. 
nuisance,  abatement  of,  ordered  ;  refusal,  3440. 
oatbbound  secret  society  for  political  purposes ;  joining,  3430. 
oath ;  person  corruptly  taking,  at  election,  3390.     See  Perjury. 

taking,  falsely  to  obtain  registration  ou  permanent  roll,  .3392. 
obscene  books  and  pictures ;  exhibiting,  selling,  etc..  .3731. 
obstructing — 

commissioner  of  wrecks,  3564. 

dams,  race,  etc.,  3381,  3C7S. 

free  passage  of  fish,  24C1-24G4,  2473,  2474,  2479. 

inspection  of  food  stuffs,  3827,  3447,  3452. 
jiremises  for  crop  pests,  3713. 

navigation,  2443,  3553,  3559,  3561. 

railroads,  etc. ;  consequences,  3754,  3755. 

roads,  etc.,  3784. 

watercourses.  3375.  3370,  3380,  3382,  .33S2a,  3755. 

way  to  church,  etc.,  or  to  spring,  3770. 
officer,  police ;  refusing  to  assist,  3701. 
officers,  public.     See  under  this  head.  Public  officer,  etc. 
oleomargarine ;  selling,  without  complying  with  regulations,  3828. 
opium ;  selling,  except  on  prescription,  3806. 
otters :  trapping  or  selling  hide  by  nonresident,  3407. 
oysters —    « 

boat  used  in  catching;  displaying  false  number,  2388. 
employing  interested  nonresident  on.  2408. 
failing  to  show  license,  2389. 

buying  or  selling,  out  of  close  season,  provisos,  2383,  2426. 

canning,  etc.,  without  license,  2395. 

catching  on  Sunday  or  at  night,  23S4. 
using  unlicensed  boat,  2387. 
without  license,  2386. 

close  season  violated,  2383,  2426. 

dealing  in,  without  license,  2395. 

dredging  in  illegal  manner,  2385. 
evidence  of,  2397. 
in  prohibited  waters,  2391,  2413. 

injuring  private  beds,  2402. 

larceny  of,  on  private  beds,  2401. 

license  to  take;  making  false  statement  to  get.  2390. 

lime ;  eatchiqg  oysters  for,  2400. 

loading,  to  carry  out  of  state;  exceptions,  2,303. 

measures ;  using  illegal,  in  buying  and  selling,  2390,  2417. 

person  licensed  to  take,  employing  forbidden  laborer,  2408. 

])reserved,  sold  as  fresh,  .3444. 

record  of  dealers;  failing  to  keep,  2390. 

selling,  not  culled,  2392. 

trespassing  on  private  beds,  2402. 

unloading,  on  Sunday  or  at  night.  2.304. 
parent  misstating  age  of  child  to  manufacturer,  3364. 
partner;  surviving,  omliozzling  iirojierty  of  partnership,  .340."(. 
peddling  goods  or  handling  without  license,  .3789. 
pedigree;  false  representation  of.  .3.307. 
pension  claims;  person  speculating  in,  37.32. 
pensions;  officers  failing  to  discharge  duties  as  to,  3.593. 
perjury;  clerk  of  court  swearing  falsely  to  statements.  .300."). 

defined,  and  piuiislniKMit  provided.  3i;n-.3(il7.     See  Perjury. 

insurance  officer  swearing  false  statement  to  be  true.  3403. 

person  corruptly  taking  oath  at  election,  3390. 

physician  making  false  death  certilicate  to  insurance  company,  34.S7 

12.34 


INDEX. 

CRIMES  AND  PUNISHMENTS— COT!ifnMe«Z.- 

permanent  registration ;  officer  failing  to  perform  duty  as  to,  3393. 

person  unqualified  registering  on,  3392. 

swearing  falsely  to  be  placed  on,  3392. 
personal  property ;  malicious  injury  to,  3676. 
pharmaceutist ;  adulterating  drugs,  3648. 

compounding  prescriptions  without  license,  3tj49. 

doing  business  under  expired  license,  3653. 

failing  to  exhibit  license,  3G51. 

falsely  pretending  to  be  licensed,  3652. 

retailing  drugs   without  license,   3650. 

poisons  illegally.  3649,  36.55,  3829. 

securing  license  by  false  pretense,  3654. 

selling  opium,  morphine,  etc.,  except  on  prescription,  3806. 
physician  ;  abetting  sale  of  liquor  unlawfully,  3519. 

failing  to  give  notice  of  contagious  disease,  3448. 

making  false  certificate  to  defraud  insurance  company,  3487. 

practicing  without  license,  3645. 
without  registering,  3646. 

registered  Illegally  by  clerk,  3647. 
pilot :  failing  to  notify  commissioners  of  destruction  of  beacou,  3560. 
pointing  gun,  etc.,  at  another  whether  loaded  or  unloaded,  3622. 
poisoning :  stock  by  leaving  certain  shrubs  exposed,  3318. 

streams,  to  kill  fish,  3417. 
poisons ;  selling  illegally,  3649,  3655,  3829. 
poll  tax  ;  sheriff  failing  to  furnish  list  paying,  3400. 

presenting  false  exemption  from,  to  election  officers,  3401. 
poll  tax  receipt;  sheriff  failing  to  give,  or  falsely  dating,  3402. 
pooling  freights  or  allowing  or  accepting  rebates,  3762. 
practicing  law;  certain  officers,  in  state  courts.  3641. 
prescription  ;  pharmaceutist  compounding  without  license,  3649. 
prisoner  ;  breaking  prison,  3657. 

conveying  to,  articles  forbidden,  3662. 

from  counties  other  thaji  county  of  conviction,  escaping  from  officer 
having  in  charge,  3658. 

injury  to,  by  jailer,  3661. 

officer  allowing,  to  escape,  3577. 

officer  maltreating,  3659. 

person  conveying  messages,  weapons,  etc.,  to  aid  escape  of,  3662. 
effect  of,  when  murder,  assault  or  escape  follows,  3662. 

sheriff  confining  in  improper  apartments,  3660. 
private  corporation's  offices,  burning  of,  3337,  3344. 
prize-fighting ;  person  engaging  in,  3707. 

person  gambling  on,  3707. 
process;  return  of;  failing  to  make  or  making  falsely,  .3604. 
public  buildings  of  county,  municipality,  etc.,  isurning  of,  3337,  3344. 
public  buildings  of  state ;  disorderly  conduct  about,  3742. 

person  injuring  in  any  way,  3742. 

person  marking  or  defacing  walls  of,  3742. 
public  grounds  of  state ;  person  trespassing  upon,  3745. 
public  meetings;  person  wilfully  disturbing  lawful.  3704. 
public  office ;  buying  and  selling,  3-571. 
public  officer ;  accepting  bribe.  3568. 

allowing  escape  of  prisoner,  3577. 

contracting  for  state,  etc.,  with  himself,  3572. 

county  ;  embezzling  county  securities,  etc.,  3408. 
swearing  falsely  to  report  required.  3605. 

entering  upon  duty  without  qualifying,  3565. 


INDEX. 

CRIMES  AND  PUNISHJIENTS— C0H/i»«e(f; 
imblic  officer — continued. 

failing  to  account  for  public  moneys,  357C. 
discharge  duty,  357G,  3592. 
file  statement  of  fines,  etc..  3579. 
inform  board  of  public  charities,  35UG. 
pay  over  fines,  etc.,  to  treasurer,  3594. 
publish  reports  required  by  law,  357G. 
farming  out  his  office,  3.j71. 

interested  in  sales  to  institution  with  which  connected,  3833. 
member  of  general  assembly  accepting  bribe,  3570. 
offering  a  bribe  to,  35G9. 
resisting,  in  discbarge  of  duty,  3700. 
speculation  in  claims  against  state,  etc.,  3575. 
state,  embezzling  securities,  etc..  of  state,  3407. 
public  schools :  officer  of.  interested  in  contracts  for  supplies.  3833.  3835. 
census  ;  committeeman  taking  or  retiirning  falsely,  383G. 
disturbing  or  injuring  school  property,  3838. 
officers  of,  failing  to  provide  four  months'  school,  3S37. 
school  books,  any  one  selling  at  more  than  contract  price.  3S.S4. 
punishment  prescribed  in  all  cases  of  assault,  3G20. 
quarantine ;  live  stock  transported  across  line,  3294. 
person  failing  to  comply  with  regulations,  3449. 
pilot  or  master  of  infected  vessel  bringing  to  harbor,  3451. 
schools;  authorities  failing  to  perform  duty  as  to,  3440,  .S441. 
traveler  from  infected  places  refusing  to  obey  regulations  of,  3454. 
violation  of  regulations  as  to  station  on  Cape  Fear  river,  34.50. 
races ;  horses  entered  for,  fraudulently,  3429. 
railroads : 

beating  one's  way  on  train,  3748. 

building,  without  authority.  .3707. 

charging  exorbitant  rates.  3768. 

conspiracy  with  retiring  officer  to  prevent  successor  from  obtaining 

company's  property.  3760. 
crossing;  failing  to  maintain,  3753. 
discriminating ;  against  connecting  lines,  .3751. 
against  A.  and  N.  C.  railroad,  3750. 
between  shippers,  3749. 
engineer,  conductor,  etc.,  intoxicated  while  on  duty,  37.58. 
failing  to  maintain  cattle-guards  at  proper  points,  37.53. 

to  keep  up  certain  bridges,  ."775. 
injuring  roadbed  without  malice,  .3755. 
with  malice.  37!54. 

homicide,  when  accident  follows  causing  death.  37.54. 
injuring  rolling  stock,  buildings,  etc..  ,375G. 

train  without  malice.  3705. 
intoxicated  person  entering  train  after  being  forbidden.  3757. 
maliciously  placing  anything  on  track,  37.54. 

homicide,  when  accident  follows  causing  death.  3754. 
officers,  etc. :  embezzling  company's  money,  etc..  3403. 

venue  of  action  against,  3403. 
person  conspiring  with,  to  embezzle  company's  funds,  etc..  :i-104. 

venue  of  action,  3404. 
retiring,  failing  to  turn  over  property,  37G0. 
placing  passenger  cars  before  baggage,  freight,  etc.,  3747. 
pooling  freights,  .3762. 

refusing  to  ol)oy  regulations  relating  to  trackage,  3751. 
removing  packing,  etc.,  from  journal  boxes  of  cars,  etc.,  .37.59. 
second-class  passengers  riding  in  first-class  coach.  3761. 
shooting  or  throwing  at  cars  or  locomotive.  .3763. 
state  interested,  failing  to  make  certain  report,  3.59.5. 
tickets  of.  sold  or  dealt  in  by  "scalper."  3764. 
trains  run  by,  on  Sunday,  Illegally,  3844. 

1236 


INDEX. 

CKIMES  AND  PUNISHMENTS— con/MiMCfZ; 
rape ;  assault  with  intent  to  commit,  3G38. 

deflned,  and  ijuiiisliment  prescribed.     See  Rape, 
real  property ;  injury  to  bouses,  fences,  etc.,  3G73. 

malicious  injury  to,  3677. 
rebellion,  engaging  in  or  inciting,  3437. 
receiving  stolen  goods.  3507. 

records ;  taken  for  fraudulent  purposes,  or  injured,  3508. 
register  of  deeds  disposing  of  public  laws,  etc.,  to  own  use,  3598. 

failing  to  discbarge  duty,  3599. 

to  keep  indexes  required  by  law,  3G00. 

marriage  license ;  issuing  to  white  person  and  negro,  3370. 

refusing  copy  of  election  returns,  etc.,  3398. 

swearing  falsely  to  statement  required,  3G05. 
registration  of  domestic  animals  procured  fraudulently,  3308. 
religious  congregations,  disturbing,  .3705,  370G. 
repairing  boats  in  public  docks  of  Wilmington,  35.54. 
resisting  an  officer,  3700. 

rivers,  etc.,  supervisors  falling  to  establish  high-water  marks,  3782. 
roads;  damaging,  by  hauling  timber,  not  repairing,  etc.,  3778. 

gates  across,  person  leaving  open  or  injuring,  3781. 

interfering  with  making,  laid  off  according  to  law,  3784. 

obstructing  or  altering,  leading  to  church,  3784. 

overseer  of,  wilfully  neglecting  duty,  3785. 

person  failing  to  attend  and  work  public,  3779. 

sign-posts  on,  any  one  removing  or  defacing,  3783. 

supervisors  failing  to  establish  high-water  marks  at  fords,  3782. 
robbing  fish-nets.  3478. 

graves,  3672. 
running  trains  on  Sunday  against  regulations,  3844. 
sales  ;  .3803-3832.     See  Sales. 

animals  with  contagious  diseases,  3295. 

certain  birds  in  certain  counties.  3472. 

corn,  unlawfully,  3809. 

food.     See  under  this  bead,  Food.  etc. 

goods,  marked  or  branded  fraudulently,  3850. 

hides  of  otter,  muskrat,  etc.,  .3467. 

liquors.     See  Liquors. 

meat  of  diseased  animals,  3442. 

poisons,  illegally,  .3649,  3655.  3829. 
sanitary  regulations  concerning  disinfecting,  violated,  3446,  3449. 
sausage ;  selling  adulterated,  3444. 
sawdust ;  obstruction  of  streams  by.  3382a. 

throwing,  in  streams  of  certain  counties,  3382a. 
school  books  ;  selling  at  more  than  contract  price.  3834. 
school  census ;  committeeman  taking  or  returning  falsely,  3836. 
school-house :  setting  fire  to  or  procuring  to  be  done,  3345. 
school  officers  failing  to  quarantine  against  certain  diseases,  3440,  .3441. 
scrip,  etc..  person  accepting  as  money,  issued  without  authority.  3711. 

issuing,  to  circulate  as  money,  .3711. 

non-transferable:  employer  issuing  to  laborers,  3730. 
seamen:  ont icing,  away  from  vessel,  35.55,  3.5.56. 
secret  assault  with  deadly  weapon,  3621. 

secret  political  societies;  person  joining  any  oathbound,  .34.39. 
secreting  property  with  intent  to  binder  enforcement  of  lien.  3436. 
seduction  of  virtuous  woman  under  promise  of  mai-riage,  3354. 

marriage  a  bar  to  prosecution,  3354. 

unsupported  testimony  of  woman  not  sufficient,  3354. 
selling  wrongfully.     See  Sales, 
servant ;  enticing,  to  leave  master,  .3365. 
sewerage ;  discharging,  into  streams  used  as  water  sujiply,  3858. 

1237 


INDEX. 

CRIMES  AND  PUNISHMENTS— ro/i//)iHCe?; 
sheriff ;  allowing  prisoner  to  escaiie,  3577. 

oous)jiriiJg  to  wrongly  value  homestead,  3585. 

executing  deed  for  property  wrongfully  sold  at  tax  sale,  3790. 

failing  to — 

attend  tax  sale,  3790. 

furnish  tlerk  list  who  have  paid  poll  tax,  3400. 
give  receipt  when  poll  tax  is  paid,  3402. 
obey  comiuitment  of  prisoner  from  another  county,  etc..  .3003. 
perform  duty,  3570,  3592. 
publish  list  of  delinquent  taxpayers,  3.587. 
return  process  or  making  false  return,  3G04. 
return  writ  or  venire  facias,  3C02. 
prisoner  confined  by.  in  improper  apartments,  3600. 
refusing  to  surrender  tax  lists,  3788. 
selling  property  not  liable  for  taxes,  3790, 
swearing  falsely  to  statement  required,  3005. 
shipping  certain  birds  out  of  state ;  evidence,  3471. 

out  of  certain  counties,  3472. 
shooting:  generally.     See  Assault:  Hunting, 
fish,  3418,  2456,  2466. 

in  Neuse  river,  2456. 
or  throwing  at  cars  or  locomotive,  3763. 
wild  fowl  in — 

Currituck  county  against  regulations,  3474. 
Dare  county  against  regulations,  3476. 
New   Hanover  and  Brunswick   counties,  etc.,   .3477. 
Pamlico  Sound,  Hyde  county,  from  batteries  not  on  land,  .3478. 
signature  of  person  obtained  by  false  pretense,  3433. 
sign-posts  on  roads ;  removing  or  defacing,  3783. 
slander ;  innocent  woman  charged  with  incontinenc.v,  SCAO. 
sodomy;  committing  crime  against  nature,  .3349, 
spirits  of  turpentine  adulterated ;  offered  for  sale,  3830. 
stallion  ;  allowed  by  owner  to  run  at  large,  3323. 
state  hospital :  violating  ordinance  of  directors  of,  309.5. 
state  institutions:  olficers  failing  to  make  certain  reports,  3595. 
state  oflicers.     See  under  this  head,  Public  officer,  etc, 
state  tax  commissioners ;  refusing  to  exhibit  books,  etc.,  3792. 
state  treasurer ;  fraudulently  accounting  or  reporting,  3600. 
steamboats:  riding  first-class  cabin  having  second-class  ticket,  3701. 
steam-heating ;  person  turning  on  steam  to  defraud,  .3006. 
stevedores  loading  or  unloading  vessels  without  license.  3791. 
stock  law :  person  violating  provisions  of.     See  Stock  Law. 
stone  horse  or  nnile  allowed  to  run  at  large.  .3323. 
strays :  person  failing  to  comfily  with  law  as  to,  .3.306, 
street  cars;  company  failing  to  provide  fenders  for,  3801. 

vestibuU'd  fronts,  3800. 
subornation  of  perjury  defined,  3616. 
Sunday:  fishing  on,  with  nets  or  seines,  2836,  .3841. 
hunting  game  on,  3459,  3842,  .3843. 
inu'suing  ordinary  vocation  on,  28.36. 
running  trains  on,  except  as  allowed,  .3844. 
selling  liquor  on,  .3532. 
supreme  court  reports,  etc. ;  cu.stodian  disposing  of,  3.598. 
surveyor  failing  to  have  chain  measured  and  sealed,  3684, 

needle  tested,  .3743. 
taxes;  city  collector  failing  to  settle.  .3009. 
constable  failing  to  settle,  3609. 

corporation  officers  failing  to  turn  over  to  sheriff,  etc..  3786. 
officer  enibej'.zling,  3410, 
person  failing  to  pay  license  tax,  3787. 
tax  lists;  sheriff  failing  to  surrender,  etc.,  3788, 

12.38 


INDEX. 

CRIMES  AND  PUNISHMENTS— coHiinweii; 

tax  sale :  sheriff  failing  to  attend  or  wrongfully  selling,  etc.,  3790. 
telegram  ;  opening  or  reading  another's,  etc.,  3728. 

operator,   messenger,  etc.,  divulging   contents,  etc.,  3846. 

person  wrongfully  obtaining  knowledge  of,  3846. 
telegraph  or  telephone  fixtures ;  person  injuring,  etc.,  3845,  3847. 
telephone  message ;  obtaining  knowledge  of  contents  by  connivance,  3848. 

operator,  messenger,  etc.,  divulging  contents,  3848. 
tenant ;   abandoning  crops  after   being  advanced,   certain  counties,   330(>. 
3367. 

employing,  who  abandoned  crop.  In  certain  counties,  3366,  3367. 

injuring  houses,  fences,  etc.,  during  his  term,  3686. 

persuading,  to  abandon  crop,  certain  counties,  3367. 

removing  crop  without  satisfying  landlord,  3665. 

surrendering  possession  to  other  than  landlord,  3682. 
terrajiin  ;  catching,  wrongfully,  2360,  2370. 

ticket  broker ;  dealing  in  railroad  tickets  without  authority,  3764. 
timber-mark  ;  person  destroying  or  erasing,  3855. 
timber  trees ;  brands  of ;  using  without  owner's  consent,  3854. 

carrying  off  feloniously,  3511. 

cutting  down,  injuring  or  removing  another's,  .3687. 

cutting,  on  land  after  entering  Ijefore  obtaining  grant,  3741. 

tenant  destroying,  in  any  way,  3086. 
town  ordinances :  violating,  3702. 
trademarks ;  forging  or  counterfeiting,  3850-3852. 

defacing,  on  timber,  3855. 

larceny  of  timber  marked,  3853. 

selling  goods,  etc.,  knowing  branded  fraudulently,  3850. 

taking  timber  with  another's  brand  on  It,  3856. 

using:  brands  fraudulently,  38.50,  3851. 
timber  trademarks  fraudulently,  3854. 
trained  nurse ;  using  title  "registered  nurse,"  without  license,  3656. 
trainmen  intoxicated  while  on  duty,  3758. 
trains ;  any  one  placing  obstructions  before,  3754,  3755. 

accident  causing  death  :  homicide,  3754,  3755. 

beating  one's  way  on,  3748. 

coupling  baggage,  freight  cars,  behind  passenger  car.  3747. 

run  on  Sunday,  except  as  allowed,  3844. 

taking  waste  from  joiu-nal  boxes,  etc.,  3750. 
tramps ;  entering  dwelling-house  without  consent,  37.36. 

carrying  firearms  or  threatening  to  do  Injury,  3736. 

going  about  begging ;  discharged,  when,  3735. 

kindling  fire  on  highway  or  land  of  another,  37.36. 
■      maliciously  injuring  personal  or  real  property.  3737. 
transporting  live  stock  across  quarantine  line,  .3204. 
trapjiing  by  nonresident  of  otters,  muskrats  or  minks.  3407. 
traveler  refusing  to  comply  with  quarantine  regulations,  3454. 
treason.  3437,  34.38. 
treasurer  of  benevolent  society :  embezzling  funds,  3409. 

lending  money  of  society  without  its  consent,  .3409. 
trespass ;  after  being  forbidden,  3688. 

cutting  or  removing  another's  timber  trees,  etc.,  3687. 

cutting  timber  trees,  after  entry,  before  obtaining  grant.  3741. 

lumting  on  hind  of  another  without  permission,  ,3480,  3481. 

injury  to  private  oyster  grounds,  2402. 

on  lands  by  riding,  or  driving  stock,  etc.,  .3.320,  3321. 
public  grounds  of  state  at  Raleigh.  3745. 
state  lands,  or  of  board  of  education.  3746. 

taking  unlawful  possession  of  another's  house,  etc..  3685. 
trout,  mountain.  3418.     See  Mountain  Trout, 
trustee  for  creditors  violating  duty.  3680. 
trusts  and  monopolies ;  person  violating  law  concerning,  37.39. 

12.39 


IXDEX. 

CRIMES  A.NU  PUNISHMENTS— fo/i//;uH(/; 

turnpiki'  couipaiiy,  I'liiliiig  to  koei)  up  lertain  bridges,  3775. 

state  iuterested,  failing  to  report,  3595. 
uuloaded  gun  or  pistol ;   jjointing,  at  another,  3622. 
vagrants ;  defined,  3735-373S,  3740. 
venire  facias:  sheriff  failing  to  return  writ  of,  3002. 
vessel :  anchoring  on  range  line  of  lighthouses,  3550. 

contagio>!s  di.aeases  aboard,  master  landing,  etc.,  3451. 

encumbering  doclvS  of  Wilmington,  etc.,  with  barges,  etc.,  3547. 

enticing  seamen  from,  3555. 

fastening  to  bridge  over  navigable  stream,  3774. 

Hats,  barges,  etc. ;  failure  to  remove  from  docks  after  notice,  3549. 

mooring  or  fastening  to  buoys,  etc.,  354G. 

navigation  of,  obstruction,  2443,  3543,  3553,  .3559,  3501. 

oyster  boats ;  using  without  license,  2387. 
displaying  false  number  on,  2388. 
refusing  to  exhibit  license.  23S9. 
unloading,  on  Sunday  or  at  night,  2394. 

passengers  riding  in  wrong  cabin  after  forbidden.  3701. 

removing,  from  mooring,  3544. 

repairing,  in  public  docks  in  Wilmington,  3554. 

steamboat  companies.     See  under  this  bead,  Counnon  carriers,  etc. 

stevedores  loading  or  unloading,  without  license,  3791. 

throwing  substance  from,  3500. 
vestibule  fronts  on  street  cars ;  failing  to  provide,  .3800. 
wagoner  leaving  camp-fires  burning,  .3347. 
warehouse;  burning  wilfuU.v  and  maliciously.  .3.338. 

disposing  of  goods  deposited  in  public,  3831. 
water-courses.     See  Drainage;  Fish;  Navigation;  Obstructing, 
water-mill :  owner  of,  failing  to  keej)  certain  bridges  repaired.  .3772. 
watershed :  depositing  dead  body  on,  of  public  water  suppl.v,  .3802. 

deposithig  human  excreta  on,  of  public  water  supply,  38.')7. 

municipality  not  providing  tub  system  for  excrement,  3800. 

municiiial  ollicers  f.-iiling  to  inspect.  3801. 
water  supply  ;  depositing  dead  body  on  watershed  of  any  public.  3802. 

depositing  human  excreta  on  watershed  of  public,  3857. 

officials  of  municipality  failing  to  inspect,  .3801. 

person  damaging  another's,  etc.,  3450.  .3457. 

person  damaging,  of  any  public  institution,  3458. 

person  polluting  any  public,  3802. 
wills,  codicils,  etc.,  taken  for  fraudulent  puiimscs.  3."1(p. 
witnesses.     See  Witnesses. 

person  intimidating,  or  attempting  to  intimidate.  30!)(!. 

refusing  to  testify  before  board  of  internal  impri>voments.  3093. . 

refusing  to  testify  before  count.v  board  of  education.  3840. 

subpoenaed  by  committee,  general  assembly:  failure  ti  respond,  3092. 
by  corporation  commission,  refusing  to  testify.  3001. 
wood  carried  off  another's  land  wifb  felonious  intent.  :i511. 

without  felonious  intent,  :?511. 
woods ;  setting  fire  to,  3340. 
wrecks;  connnissioner  of.  resisting  or  obstructing.  .3.504. 

person  finding  wrecked  property  failing  to  report  same,  .'l."4S. 

CUIMINAL  PROORDTltE  : 

abatement;  jilca  in,  to  corri'ct  venue.  3239. 

accessories  to  felonies;  trial  of,  .32S7-.3290.     See  Accessories. 

punished,  when  principal  not  tried,  .3288. 
accused  iierson  :  bail  allowed  when  :  who  takes.  .3207-.3213,  .3228. 

counsel  allowed.  31.51). 

failure  bi  indici   wlien  charged  with  felony.  dis(liarge<l,  31.55. 

preliniiii;iry  bearing  as  to.  3190-3200.     See  Preliminary  Hearing. 

1240 


INDEX. 

€IiIMINAL  VliOCEDVliE— continued: 
appeal.     See  Appeal,  Criminal  Action. 

justices'  to  superior  court,  1489-1495.  3274,  3275. 

superior  to  supreme  court,  327C-3283. 
arrest,  317(i-31S0.    See  also,  Arrest,  Criminal  Action. 

fugitives  from  justice  arrested  how,  3183-3189. 

game  wardens  may,  ^  hen,  1S()8,  1SG9. 

tramps  arrested  for  certain  offenses,  3738. 

without  warrant,  3182. 
assault ;  indictment  alleging  felony,  verdict  for  simple,  when.  3208. 
bail,  generally.  3207-3213.     See  Bail,  Criminal  Action. 

defendant  allowed,  on  appeal,  when,  3279,  3280. 

forfeited,  3214-3229. 

mortgage  given  in  lieu  of,  266. 

prisoner  allowed,  when,  3207. 

sheriff  may  take,  but  not  become,  3208,  3228. 
bank-notes ;  indictment  for  larceny  of,  3251. 
bill  of  particulars  allowed  accused,  .3244. 
bond  to  keep  prison  bounds,  same  as  recognizance,  1339. 
burglary ;  indictment  for  first  degree,  verdict  for  second,  3270. 
capias :  issueil  by  clerk,  after  nol.  pros.,  when,  3273. 

executed  on  Sunday,  when,  2837. 
certain  prisoners  farmed  out ;  credited  for  amount  of  labor,  13."p2. 
civil  action  not  merged  in  criminal,  353. 
commitment  to  prison,  3230-3232.     See  Commitment 

jail  unsafe,  prisoner  sent  to  adjoining  county,  1350. 

justice's,  to  county  prison,  3259. 

vagrants,  to  workhouse;  procedure,  1369. 
continuance  before  magistrate ;  prisoner  gives  bond,  3213. 
costs ;  adjudging,  against  prosecutor,  when,  1295,  1296.     See  Costs. 

bills  of ;  approved,  audited  and  adjudged,  1256.  1257,  1283-1290. 
open  to  inspection.  1258. 

bribery  cases :  paid  by  state,  when,  1262. 

confession  of  judgment,  giving  bond  to  secure,  effect,  1293. 

county  liable  for,  when,  1283-1290.     See  Costs. 
for  two  witnesses  to  material  fact,  1303. 
pays  defendant's  witnesses,  when,  1290. 
state's  witnesses,  when,  1289. 

county  where  offense  committed  adjudged  to  pay.  when.  1285. 
how  bill  of  costs  made  out.  1285. 

defendant  liable  for.  when,  1291-1294.  1296.     See  Costs, 
arrested  for  failing  to  pay,  1294. 
failing  to  pay  in  justice's  court,  imprisoned.  1.308. 
liable  for.  detained  until  paid.  1292. 

juror's  tax  fee,  1253. 

justice  adjudges  who  to  pay,  1307. 

must  enter  detailed  statement  of.  in  judgment.  12."i7. 

lynching  investigations,  who  pays,  1288. 

not  demandable  in  advance,  1254.  2804. 

officers  indorse  fees  due  them  on  process,  1254. 

prosecutor  liable  for,  when,  120.5.  1296. 
counterfeiting;  search  warrant  to  obtain  evidence  of,  3163. 
criminal  action,  what  is,  .3.'50. 
defendant.     See  under  this  head.  Accused,  etc. 

arrested  for  failure  to  pay  cost,  when,  1294. 

committed,  when  fails  to  pay  flue  and.  in  justice's  com-t.  1.308. 

imprisoned  for  nonjiayment  of  cost.  when.  1292. 

liable  for  costs,  when,  1291-1294.     See  Costs, 
depositions  in  criminal  actions,  1652. 
docket,  criminal,  kept  by  clerk,  915  (5). 
embezzlement,  indictment  for,  .325'2. 
e.scape  of  prisoner,  indictniout  against  sheriff  for.  3577. 

1241 


INDEX. 

CRIMINAL  PliOCEDVllK—cuiitiiuted: 

evidence  in  crimiual  aetious.     See  Evideuce. 

examiuatiou  on  preliuiiuary  bearing  sent  to  superior  court,  3205. 
execution  of  sentence ;  in  capital  cases,  3284-328G. 
must  be  privately,  3285. 
slieriffs  fee  for,  2777. 

supreme  court  affirming  judgment,  on  appeal,  3284. 
witnesses,  assistants,  etc.,  must  be  present,  328G. 

stayed  by  appeal.  3281. 

wben  supreme  court  certifies  below  Its  decision  affirming,  3283. 
exliibits  at  fair,  injuring;  indictment  for.  3(I(iS. 
false  pretense;  former  conviction  of -larceny  bars  indictment,  when,  3432. 

indictment  need  not  show  who  was  defrauded,  3432. 
felons  fleeing  from  justice,  outlawed  bow,  3183. 
fine ;  judgment  for,  docketed,  force  of,  3282. 

execution  on,  stayed  pending  appeal,  3282. 
foods,  adulterating,  etc. ;  certificate  of  purity  sufficient  to  acquit,  3444  (9,  d). 
former  acquittal  or  conviction ;  plead  on   indictment  for  false  pretense, 
when,  3432. 

shown  by  justice's  court  papers,  3260. 
forms,  generally.     See  Forms, 
fugitives  from  justice  :  from  other  state ;  governor's  powers,  etc.,  as  to.  3188. 

from  this  state ;  expenses  of  bringing  accused  back,  3189. 

how  arrested  and  held,  3184-3187.     See  Fugitives  from  Justice, 
reward  offered  by  governor  for  arrest  of,  3188. 
futures ;  dealing  in  ;  procedure  to  apprehend  offender,  3820. 
gambling,  officers  duty  as  to  apprehending  gaming  tables,  etc.,  3721. 
game  warden  entitled  to  search  warrant,  when,  1809. 
habeas  corpus,  writ  of.     See  Ilabeas  Corpus. 

homicide ;  post  mortem  examination  ordered  how  in  case  of.  3152. 
horse  stealing ;  two  counts  joined  in,  how,  3505. 

impeachment ;  substance  of  offense  only  need  to  be  set  forth  in.  .324.3. 
indictment ;  by  grand  jury,  3242-3255.     See  Indictment. 

false  pretense ;  not  required  to  show  who  defrauded,  3432. 

horse  stealing ;  county  joined  bow,  3505. 

injuring  fair  exhibits ;  how  stated  in,  3008. 

injury  to  live  stock:  name  of  owner  not  necessary,  3314. 

rape,  how  alleged  in,  3039. 

sheriff  allowing  prisoner  to  escape,  allegation,  .3577. 

stealing  or  obliterating  court  records  alleged  in.  3.508. 

trial  in  superior  court  only  on,  3'240. 

venue  laid  in,  presumed  correct,  3239. 
imprisonment;  in  county  prison  only;  proviso.  3231. 
injury  to  live  stodv,  indictment  need  not  state  owner.  .3314. 
nisolvent  debtors  discharged  from  prison,  when.  191.5-1919. 
intent  to  defraud ;  substance  of  indictment  for.  3253. 
jail ;  unsafe.  ))risoner  conunitted  to  adjoining  county.  13.50. 

when  county  has  none,  prisoner  committed  where.  1350.  1.349. 
judgment  for  fine  dockete<l  a  lien  when,  3282. 
judgment  nisi,  rendered  on  forfeited  recognizance,  3223. 

notice  to  s\n'eties,  3223. 
judge's  cbai'ge  to  jur.v.     See  Instructions  to  .lury. 
juries.     See  .Tury. 

justices'  courts ;  jjrocedure  in.     See  Courts.  .Tustices'. 
larceny;  distinctions  lietween  grand  and  petit,  abnlisbed.  3.5(l<1. 

indictment  for,  3251.  3253.  .3.508.     See  Indiclniont. 

obliterating  or  .stealing  court  records,  etc. ;  indictment,  350S. 

stolen  iiroperty  must  be  returned  to  owner,  when.  3153. 
libel ;  truth  of  publication  a  defense  to  criminal  action  for,  .3267. 


INDEX. 

CRIMINAL  PROCEDURE — cmtinucd: 

liinitatious,  statute  of;  bars  indietiueut  against  certain  lewd  women,  3353. 
bars  action  for  misdemeanor,  wben,  3147. 

against  trespasser  in  stock  law  territory,  when,  3321. 
liquor ;  illicit  manufacture  or  sale ;  procedure.     See  Liquors, 
illicit  shops,  officers  required  to  discover,  3721. 
solicitor  proceeds  on  suspicion,  when,  3534. 
lynching ;  investigation  into  by  the  solicitor,  3200. 
participants  in,  must  testify,  3201. 

not  excused  on  ground  of  self  incrimination,  3201. 
testifying  for  state,  pardoned,  3201. 
person  found  probably  guilty,  bound  over  to  court,  3200. 
manslaughter ;  indictment  contains  what,  3245. 
mayor's  court.     See  Mayor. 

criminal  jurisdiction  of,  2934,  2937. 
mortgage  in  lieu  of  recognizance,  266. 
murder ;  indictment  alleges,  how,  3243,  3245. 

first  degree  alleged,  jury  can  find  what,  3271. 
new  trial ;  granted  by  superior  court,  when,  3272. 

•    justice's  court  can  not  grant,  1489. 
nol.  pros,  with  leave ;  duties  of  solicitor  and  clerk,  3273. 
peace  warrants  issued :  procedure  on,  3165-3175.     See  Peace  Warrant, 
perjury ;  indictment  for.  3246,  3247. 
second  offense ;  indictment,  3249. 
subornation  of ;  indictment,  3248. 
pleading  justice's  court  records  in  bar  of  indictment,  3260. 
post  mortem  examination  ordered  by  solicitor,  when,  3152. 
preliminary  hearing  in  justices'  courts,  3190-3206.'    See  Preliminary  Hear- 
ing, 
presentment  by  grand  jury  :  names  of  witnesses  indorsed  on,  3241. 
illicit  liquor  dealers,  etc.,  presented  on  information,  .3.5.34. 
no  person  arrested  on,  or  tried.  3240. 
prisoner;  allowed  bail  on  preliminary  hearing,  when,  3202. 
bound  over  to  regular,  must  attend  special  term,  1517. 
captured  in  one  county,  wanted  in  another ;  expense  of  transfer,  1287. 
commitment  of,  to  jail  of  another  county,  when.  1349,  1350. 
farmed  out,  credited  with  amount  of  labor,  13.52. 
giving  bond  to  keeji  prison  bounds,  bond  returned,  1339. 
transferred  to  another  county ;  prison  expenses  paid  how,  1"285. 
procedure  when  county  liable  doesn't  pay,  1285. 
process ;  must  be  endorsed  how,  by  oflicers,  3149.     See  Process, 
not  returnable  to  civil  terms,  1508. 
returnable  when,  3148. 
what,  executed  on  Sunday,  2837. 
prosecutor ;  adjudged  to  pay  cost,  when,  1295,  1307. 

imprisoned  for  failure  to  pay  costs,  when.  1297,  1307. 
who  is,  and  how  and  when  determined,  1295. 
rape,  how  alleged  in  indictment,  3630. 

real  property,  malicious  injury  to ;  procedure  before  justice,  3677. 
recognizance.     See  Bail,  Criminal  Action. 

bond  to  keep  jn-ison  bounds  a.  1339. 
removal  of  action  ;  from  before  justice,  1455. 
to  another  county,  costs  paid  how,  1285. 

fine  belongs  to  county  from  which  removed,  1285. 
removal  of  prisoner  to  another  county ;  expenses  of  keeping,  1285. 
roads,  damaging,  by  hauling  lumber ;   damages  paid  discharges  prosecu- 
tion. 3778. 
search  warrants;  issued,  executed  and  returned,  3163,  3164. 
issued  for  deserting  seamen,  .35.57. 

to  find  game  birds  unlawfidly  shipped,  1SG9. 
procedure  on,   3558. 


INDEX. 

ClilMIXAL  PKOCEDUKE— coii^/.Tuei/; 

sentence ;  Uow  rendered,  when  defendant  must  pay  costs,  1292. 

judge  sentences  to  public  roads,  when,  l;>55. 
service  of  process ;  officers  can  not  require  fee  advanced,  2804. 
solicitor ;  approves  bill  of  cost,  12.50. 

discbarges  witnesses  wben  case  disposed  of.  1305. 

files  with  clerk  names  of  witnesses  entitled  to  prove,  1305. 

iUQuires  into  lynching,  3200,  3201. 

furnishes  grand  jury  with  evidence  as  to,  3233. 
state  liable  for  costs,  when,  12.j9-1203. 
state's  witnesses ;  when  and  bow  many  paid,  1303. 
supreme  court;  affirming  superior  court,  clerk's  duty,  32S3. 

not  affirming  decision,  clerk  dockets,  3"2S3. 
tenancy  in  common,  how  alleged  in  Indictment,  32.50. 
trial;  justice's  court,  325(>-;i2Gl.     See   Courts,   Justices';   Trial,  Criminal 
Action, 
justice  may  associate  another  justice  with  him,  when,  3154. 
superioi'  court,  3262-3273.     See  Trial,  Criminal  Action, 
venue,  3233-3239.     See  A'enue,  Criminal  Action, 
improper ;  plea  in  abatement  to  correct,  3239. 
trial  of  accessories,  3287,  3288. 

beating  one's  way  on  train,  3748. 
bigamy,  3301. 

discrimination  by  railroads,  3750. 
embezzlement  by  railroad  employees,  3403. 
conspiracy  to  embezzle,  3404. 
laid  in  indictment,  3239. 
verdict  in  criminal  cases.     See  Verdict,  Criminal  Action, 
warrants ;  for  persons  charged  with  crime,  3156-3102.    See  Warrants, 
peace  warrants,  3105-317.5.     See  Peace  WaiTant. 
search  warrants.  3103,  3164,  3557.     See  Search  Warrant, 
witness ;  amount  of  fee  of,  1296. 

attendance  of,  proven  before  clerk,  how,  1299. 
before  grand  jury,  entitled  to  fee,  when,  1302. 
committed  to  jail,  when,  3232. 
defendant's  paid  by  county  in  what  cases,  1289. 
discharged,  as  cases  disposed  of,  1305. 
failing  to  attend,  etc.,  penalty,  1643. 
fees,  etc..  can  be  demanded,  when,  1298. 
justice  binds  over,  for  state,  on  appeal,  1304,  3204. 
binds  over  on  preliminary  hearing,  3203,  3204. 
paid,  in  only  one  case  a  day,  1303. 
required  to  give  security  for  appearance,  when.  3204. 
state's,  paid  by  county,  when,  1289. 

CKOATAN  INDIANS: 

marriages  of,  with  white  persons  or  negroes  void,  2083. 

CItOP  PESTS : 

preventing  or  seeking  to  prevent  inspection  of  premises  for,  3713. 
violating  regulations  for  destruction  of,  misdemeanor,  3724. 

CROPS : 

abandoned  by  tenant  after  advanced  ;  misdemeanor,  when.  ;!:',i;(;,  'MtM. 
burning  of,  after  gathered,  but  not  stored,  felony,  3339. 

sedge  or  grass  standing  in  field,  felony.  .'?.3.39. 
conunon  fence  not  removed  while  crops  growing,  .3412. 
(•r(>pp<^r  f.iilhig  to  cultivate  when  advanced:  remedy,  20.5(1. 
deiedeiit's  nngathored,  are  personalty,  47. 
growing,  exempt  from  sale  under  execution,  632. 

landlord    and    tenant's    controversy    over,    1993-1997.     See    I/.nidlonl    and 
Tenant. 

1244 


INDEX. 

CROPS — ccntinued: 

landlord  seizing,  wlien  nothing  due  bim,  misdemeanor,  3064. 
larceny  of,  standing  ungatliered  in  field,  3503. 
lien  on,  for  advances,  2052-2057. 

for  rent,  ]0(I3. 
person  cultivating  may  have  cartway  established,  20SG. 
tenant's,  not  sold  under  execution,  when,  1098. 
tenant   removing,    without   satisfying  claims   of   landlord ;    misdemeanor. 

3065. 
title  to,  deemed  vested  in  landlord  until  when,  1993. 

CROSSING,  RAILROAD :     See  Railroads. 

CRUELTY  TO  ANIMALS :     See  Crimes  and  Punishments. 

CURTESY,  TENANT  BY  THE : 
estate  ot,  lost,  when.  2109,  2111. 
husband  entitled  to  wife's  lands  as.  when,  1730,  2102. 

CUSTODY  OF  CHILDREN: 

application  for.  before  clerk,  1772. 

contest  between  husband  and  wife  over,  1570,  1853,  1854. 

forfeited  by  parent  by  abandonment,  180. 

parents  divorced ;  judge  disposes  of,  1570. 

restored  bow,  181,  1853,  1854.  ^ ■ 

CUTTING  TIMBER  TREES  :     See  Timber. 

DAMAGES  : 

amount  of,  agreed  upon,  subject  to  verdict  as  to  breach,  801,  862. 

attachment ;  defendant  in,  entitled  to,  when,  763. 

bonds ;  action  on,  for.     See  Bonds,  OHicial ;  Bonds,  Fiduciary. 

claim  and  delivery  ;  defendant  in,  entitled  to,  when,  793. 

client's  action  against  attorney  for,  when,  215. 

condemnation  proceedings  to  ascertain.     See  Condemnation  Proceedings. 

ejectment ;  judgment  for  damages,  when,  2004-20(10.  2010. 

employer  liable  for,  violating  contract  with  apprentice,  206. 

injunction  ;  person  enjoining  liable  to,  when,  817,  818,  1205. 

jury  assesses,  when,  553. 

libel  and  slander ;  mitigating  circumstances  in,  evidence,  502. 

effect  of  newsp-aper's  retraction,  2013. 
life  tenant  failing  to  pay  tax  liable,  2859. 

not  liable,  when,  1991. 
mad  dog  biting  any  one,  owner  liable  in.  when,  330.">. 
mills;  location  of,  2141-2145.     See  Mills, 
negligence ;  actions  for  damages  for.     See  Negligence, 
nuisance ;  judgment  for.  how  awarded.  825. 
parent  entitled  to,  for  selling  minor  child  liquor,  352.5. 
penal,  in  action  for  waste,  858. 
prisoner's  action  for ;  against  jailer,  when,  3661. 

against  county,  when,  2825. 
railroad  liable  to  exemplary,  when,  1091. 
roads;  damages  for  location  of.     See  Roads, 
tenant  for  life  or  years  not  liable  for  accidents,  1991,  1992. 
trademark  or  brand;  damages  for  use  of  another's,  3021. 

fraudulently  procuring  registration  of.  3018. 
undertaking  by  plaintiff  to  pay ;  in  arrest  and  bail,  730. 

in  attachment,  703. 

claim  and  deliver.v,  793. 
wrongful  death  ;  action  for  damages  for,  59. 

measure  of  damages,  CO. 

DAMS:     See  Milldams. 


INDEX. 

DATE : 

claims  against  county,  date  of  presentation  entered,  1386. 

indorsement  ol',  on  process  by  otficers,  314!J. 

negotiable  instruments ;  holder  may  insert,  wben  undated,  21G3. 

iucorrect  date  on,  does  not  invalidate,  21(52. 

presumed  to  be  drawn  or  indorsed  the  day  written,  21G1. 
notary's  seal  accompanied  by  date  term  of  notary  exi)ires,  23.")la. 
register  of  deeds  indorses,  on  instruments  as  flle<l,  2058. 

DATS  OF  GRACE : 

allowed  when  and  on  what  instruments,  2235. 

DEAD  BODIES: 

coroner's  inquest  over,  1051. 

disturbing  graves  a  felony,  3672. 

failing  to  properly  distribute,  among  schools,  misdemeanor,  :!567. 

placing,  near  watershed,  .3862. 

DEADLY  WEAPONS: 

sale  of.  to  minors,  a  misdemeanor,  3832. 

furnishing,  to  lunatics  or  convicts  a  niisdonieanor,  .'i-jlT. 

DEATH : 

between  verdict  and  judgment :  effect.  564. 
capital  felonies  punishable  by,  3330.  3335,  3631,  3637. 
negligence  causing ;  action  for  damages,  59,  60. 
presumed,  after  seven  years  absence,  when.  151,  .3361. 
prisoner  lynched ;  action  against  county,  2825. 
sentence  of,  executed  how.  3284-3286. 
survival  of  rights  of  action,  59,  154-156. 
testator's  will  speaks  from,  3141. 

DEBTORS : 

administration  of  estate  of.     See  Administration. 

assignment  of,  for  creditors,  967-973.    See  Assignment  tor  Creditors. 

confession  of  judgment  by.  580-582. 

execution  against,  returned  unsatisfied ;  procedure.  607-684. 

insolvent,  1915-1949.     See  Insolvent  Debtors. 

joint  and  several,  summons  served  on,  and  judgment  against.  455-459. 

may  take  benefit  of  exemption,  685.  704. 

DECLARATION:     See   Complaint. 

DECREE  :     See  Orders  and  Decrees. 

DEED  OP  TRUST :     See  Trust  Deed. 

DEEDS :     See  Conveyances. 

DEER: 

chasing,  with  dogs  in  certain  counties,  misdemeanor,  .3460. 
close  season  for  hunting,  1881. 

DEFAULT,  .TUDGMENT  BY  :     See  .Judgment. 

DEFENDANT : 

appeal  of,  from  justice:  cost  bond  given  by  plaintiff,  when.  600. 

ajjpeal  to  supreme  court.     See  Appeal,  Civil  Action:  .\ppeal.  Criminal  .Vc- 

tion. 
attachment ;  iudgment  for  defendant,  property  returned  to  him,  786. 

1246 


INDEX. 

DEFENDAl^lT— continued: 

boud  given  by,  in  what  actions  concerning  real  property,  453,  454. 
claim  and  delivery ;  undertaking  to  replevy  property,  795. 
competent  to  testify,  when,  1(j2S-1(J38.     See  Witnesses, 
contested  election ;  defendant  holds  office  during  contest,  836. 
costs :  allowed,  in  what  civil  cases,  1200.     See  Costs. 

defendant  pays,  in  criminal  eases,  when,  1291-1294.  1296. 
criminal  action  against.     See  Accused  ;  Criminal  Procedure, 
defends  before  or  after  judgment,  when,  449. 

estopped  by  plea  as  to  title  of  laud  being  in  controversy,  when,  1424. 
execution  on.     See  Execution, 
husband  may  defend  for  wife,  2103. 

Joint  and  several  obligors,  judgment  when  part  only  served,  455-459. 
judgment ;  against,  by  default  final,  when,  556. 
by  default  and  inquiry,  when,  557. 
rendered  for  and  against,  how,  563. 
justice  commits,  upon  failure  to  pay  fine  and  costs,  1308. 
liable  for  fees  to  only  two  witnesses  to  material  fact,  when,  1.303. 
name  of,  unknown ;  may  be  sued  in  any  name,  442.  510. 
notified  of  no  personal  claim  against ;  effect,  1270. 
peremptory  challenges  to  jur.v.  where  several  defendants,  1965. 
pleadings  by,  generally,  470-483.     See  Demurrer :  Answer, 
replevies  property  attached,  how,  773. 
service  of  process  «n.     See  Process, 
tender  of  judgment  by,  860-863.     See  Compromise, 
testimony  of,  not  compelled,  when  self-incriminating,  163.5. 
imdertaking  in  attachment  when  discharge  applied  for,  775. 
who  may  be,  410. 

DEFENSE  BOND : 

arrest  and  bail ;  proceedings  in,  737-747. 
attachment ;  proceedings  in.  773-775. 
claim  and  delivery  proceedings,  79.5-797. 
contested  election,  835. 
land ;  action  concerning,  453. 
not  required,  when,  454. 
mortgage  given  in  lieu  of,  2C9. 
siu'ety  company  may  give,  273. 

DEFRAUDING  :     See  False  Pretense  ;  Fraud ;  Fraudulent  Conveyances. 

DEGREES  OF  KINSHIP :     See  Next  of  Kin. 

DELINQUENT  TAXPAYERS : 

list  of,  published  by  sheriff,  2826. 
prosecution  of.  by  sheriff,  2877. 

sheriff  not  liable  when  prosecution  bona  fide,  2878. 

DELIVERY : 

freight,  by  railroad,  to  consignee  offering  to  pay  freight,  1111,  2641. 
liquors,  by  agent  of  purchaser :  effect.  3534. 

place  of  delivery,  place  of  sale,  2080. 
negotiable  instruments :  after  blanks  in,  have  been  filled,  2164. 

incomjilete,  validated  by,  2165. 

invalid  without.  2166. 

law  defines,  2.340. 

revocable  until,  2166. 

title  to,  transferred  by,  when,  2178,  2198,  2340. 


IXDEX. 

I>EMURRAOE: 

regulated  by  coriioration  conmiissioii.  1100. 

DEMURRER  TO  EVIDE^-CE  : 

plaintiff  lestiiiK  ca.'-e.  defendant  may  move  to  dismiss,  539. 
motion  denied,  defei>dant  may  except  and  appeal,  539. 
uia.v  waive  exception  and  introduce  evidence,  539. 

DEMURRER  TO  PLEADING  : 
answer  in  lieu  of.  when,  477. 
frivolous,  stricken  out,  472. 
general,  not  allowed,  475,  3401. 
grounds  for.  474,  14G1. 

must  be  specified,  475.  1401. 
issue  joined  on,  when,  484. 
reply  insufficient,  48G. 
sustained ;  amendment  allowed,  500,  14G2. 

for  mis.ioinder,  action  divided,  470. 
time  for  filing,  473. 
waiver  of  grounds  for,  deemed,  when,  478. 

DENTISTS: 

license  to  practice,  falsely  claiming  to  have,  3043. 
not  denied  to,  on  accomit  of  race ;  etc.,  3G42. 
practicing  without,  a  misdemeanor,  3042. 
can  not  collect  charges  for  worl<,  3042. 
convicted  of.  amount  paid  dentist  recovered,  3042. 
register  of,  Icept  by  elerl;.  915  (2G). 

DEPOSIT  : 

in  lieu  of  undertaking  or  bail,  450,  503,  598,  737,  744. 

applied  to  plaintiffs  .iudgment  when.  747. 

bail  substituted  for  deposit,  when,  740. 

sheriff's  dut.v  to  pay,  into  court,  745. 
liens  discharged  by  depositing  amount  of.  2033. 
married  women  ma.v,  and  draw  checks,  2095. 
trust  funds ;  at  fiduciary's  risk,  1793. 

ordered  dejjosited  by  judge,  850. 

trustee  failing  to  deposit,  procedure,  851. 

DEPOSITIONS : 

cause  removed  to  another  county  :  effect  as  to  taking,  1042. 
conuuissioners  to  take;  commission  issued  by  clerk,  901,  1052. 
duties  as  to  return  of  depositions,  1052. 
fee  of.  taxed  how,  1208  (0). 
power  to  administer  oaths,  1049. 

enforce  attendance  of  witnesses,  1050. 
punish  for  contempt,  1G49. 

connuitment  in,  states  what,  1G49. 
subpcena  witnesses,  1G49. 
costs  of  taking;  adjudged  how,  1208  (0). 
to  be  used  in  other  state,  secured,  1055. 
justice's  court ;  procedure  as  to,  104(!. 
motion  to  reject,  made  before  trial,  when  and  bow.  104S. 
notice  of  time  and  i)lace  for  taking,  1052. 

objeclion  that  proper  time  not  given  ;  burden  of  proof,  1052. 
not  quaslied  after  trial  begun,  when.  1047. 
read  on  trial  in  what  cases,  1045. 
taken  how,  generall.y,  l(i52. 

in  hearing  before  nnmicipal  and  odier  authorities,  1053. 

quo  warranto  proceedings,  ](!54. 
to  be  used  in  another  state;  procedure,  1055. 

1248 


INDEX. 

DEPOSITIONS— co/ii/)!  ((erf. • 

will  proven  by,  when,  3131,  3132. 

witnesses;  attendance  before  commissioner  enfurced,  1G50,  1C.5.J. 
fees  of,  1301. 

refusing  to  testify,  guilty  of  contempt,  1649,  1653. 
remedies  against  defaulting,  before  commissioner.  1651. 
subpoenaed  by  commissioner,  1649. 

by  judge,  when  action  in  another  state,  1655. 

DEPOTS :     See  Railroads. 

DESCENT : 

rules  of,  1556. 

DESCRIPTION : 

conveyance  of  land  not  void  for  lack  of,  when,  948. 
entry  of  land  must  have,  1707. 

of  oyster  beds,  etc.,  must  have,  2376. 
evidence,  parol,  to  fit  land  to,  when,  1605. 
land  described  :  in  mortgage  sale  notice,  1043. 
in  notice  of  purchase  at  tax  sale,  2903. 
partition  of  estate  between  heirs,  2494. 

DESERTION : 

child  deserted  by  parent,  custody  forfeited,  ISO,  181. 

cropper  abandoning  crop  in  certain  counties :  effect,  2001,  20.56. 

husband  abandoning  wife  and  family,  misdemeanor,  3355. 

railroad  station  abandoned  by  company,  1098. 

wife  abandoning  husband,  effect  on  wiife"s  right,  8,  2110. 

DETECTIVES : 

over  three,  going  armed,  each  guilty  of  misdemeanor,  3703. 

DETINUE:     See  Claim  and  Delivery. 

DEVASTAVIT : 

personal  representative  liable  for,  when,  167. 
not  liable  for,  when,  96,  168. 

DEVISES  :    See  Wills. 

DIAMOND-BACK  TERRAPIN : 

close  season  for  catching ;  proviso,  2370. 

persons  using  dragnets  to  catch ;  misdemeanor,  2369. 

DISABILITIES : 

adverse  possession  as  against  married  woman,  363. 
betterments  valued  to  persons  under,  as  land,  665. 
insane  person  deemed  to  have  pleaded  all  defenses,  361. 
must  exist  when  right  of  action  accrued.  365. 
removed ;  when  certain  actions  must  be  brought,  362. 
several :  limitations  does  not  attach  till  all  removed,  364. 
statute  of  limitations  does  not  run  against  jiersons  under,  362. 

DISCHARGE  : 

mortgages  and  deeds  of  trust  released,  how,  1046. 

negotiable  instruments  discharged.     See  Negotiable  Instniments. 


Rev.  Vol.  1—75 


INDEX. 

DISCLAIMER: 

defendant's :  to  title  to  land  in  action  of  trespass,  863. 

to  title  in  action  to  quiet  title,  1589. 
plaintiff's,  to  any  per.sonal  claim  against  defendant,  1270. 

DISCONTINUANCE : 

effect  of  failure  to  keep  up  chain  of  summonses,  438. 

DISCOVERY : 

action  for.  abolished ;  but  parties  may  be  examined,  804-87 

I 
DISEASES,  CONTAGIOUS:     See  Crimes  and  Punishments. 

DISMISSAL  OP  ACTIONS: 

demurrer  to  evidence  sustained,  539. 

failure  to  file  complaint,  4GG. 

indictment  not  quashed  for  want  of  form,  3254. 

justice  dismisses  for  lack  of  jurisdiction,  1421,  1423. 

new  action  brought  within  one  year  after,  when,  370. 

plaintiff  failing  to  prosecute.  503. 

process  not  quashed  by  justice  for  lack  of  form,  1467. 

DISPENSARIES:     See  Liquors. 

commissioners  appointed  to  manage ;  compensation ;  bond,  etc.,  2075,  2076. 

employees  appointed,  etc.,  by,  2075. 

powers  of,  generally,  to  regulate,  2075,  2077. 

removal  of,  2076. 

settle  with  town  authorities,  2078. 
drinking  liquor  in,  or  refusing  to  leave;  misdemeanor,  3515. 
elections  to  establish.  20G9-2073.     See  Elections. 

carried,  dispensary  established,  2074. 

defeated ;  none  until  another  election  carried  for,  2074. 
manager :  adulterating  liquors,  misdemeanor,  3520. 

buying  without  authority,  misdemeanor,  3520. 

duty  to  keep  order,  2077. 

keep  register  of  sales,  2077. 

making  false  entries  on  books  or  false  returns,  misdemeanor,  3520. 

selling  liquors  to  minors,  misdemeanor,  3524. 

to  any  one,  outside  of  dispensary,  misdemeanoi-,  3.531. 
order  kept  on  premises,  2077. 
proceeds  of  sales  of,  how  distributed,  2078. 
purchasing  liquors  at.  for  minors,  misdemeanor,  3523. 
sales  of;  must  be  made  in  dispensary.  2077a. 

no  sales  on  credit,  2077. 

on  Sunday  or  election  days,  2077. 
to  minors,  2077. 

price  of  liquors  fixed  by  commission,  2077. 

unbroken  packages  only,  2077. 

unlawful,  in  any  way  except  as  provided,  2077a. 

DISSENT : 

widow  may  dissent  from  husband's  will.  3080. 
effect  of,  3081,  3084. 

DISSOLUTION: 

corporation.     See  Corporations, 
partnership.     See  Partnership. 

DISTILLERIES:     See  Liquors. 

1250 


INDEX. 

DISTRIBUTION : 

assets  of  assigned  debtor,  within  one  year,  973. 

dead  bodies  to  medical  schools,  35G7. 

decedent's  estate,  by  administrator,  132-137.     See  Administration. 

DISTRICTS,  JUDICIAL : 

counties  composing;  courts  held  in,  when,  1506. 

DISTURBING  :     See  Crimes  and  Punishments. 

DIVIDENDS  :     See  Corporations. 

DIVORCE : 

absolute ;  effect  of,  7,  1509,  2109. 

alimony.     See  Alimony. 

bed  and  board  :  alimony,  1505.     See  Alimony. 

effect  of,  9,  2102,  2110,  2111. 
bond  for  cost ;  none  I'equired,  1558. 
costs;  adjudged  bow.  in  action  for,  1268  (4). 
custody,  etc.,  of  children,  on  divorce  granted,  judge  determines,  1570. 

guardian  appointed,  1770. 
evidence  of  adultery  ;  neither  party  can  give,  1564. 
grounds:  for  absolute  divorce,  1561. 

for  divorce  from  bed  and  board,  1562. 
issue  in  ;  can  not  be  referred,  518. 

must  be  determined  by  jury.  1564. 
judgment,  only  after  jury's  verdict,  1564. 
jurisdiction  of  action  for,  1557. 

marriages ;  certain,  declared  void  on  application,  1560,  2083,  2084. 
procedure  in  actions  for — 

action  not  commenced  until  six  months  after  discovery,  1563. 
complaint ;  affidavit  to  accompany,  1563. 
deemed  denied ;  trial  by  jury,  1504. 
time  of  filing,  466,  484. 
summons  served  by  publication,  when,  442. 
trial ;  jury  must  find  facts,  1564. 
at  what  term,  484. 
venue  in  action  for,  484,  1559. 
wife's  affidavit  of  intention  to  bring  action,  1563. 

application  for  alimony  pendente  lite,  1566.     See  Alimony, 
filing  same ;  gets  benefit  of  wages,  etc.,  1563. 

DOCKET : 

clerk  keeps  court  dockets,  913-915. 

duty  as  to  recording  in;     See  Clerk,  Superior  Court, 
justice'.s ;  all  proceedings  entered  on,  1416. 
filed  with  clerk,  1417. 

failing  to  file,  misdemeanor,  3578. 
furnished  by  county  commissioners,  1416. 
unfilled,  delivered  to  successor,  1418. 

DOCKS : 

flats  and  barges  obstructing  docks,  removal  compelled.  3549. 
logs,  etc.,  encumbering,  in  Wilmington,  misdemeanor,  3547. 

DOGS: 

bitten  by  mad  dog ;  owner  of,  failing  to  kill,  misdemeanor,  3305. 

owner  liable  if  any  one  bitten,  3305. 
failing  to  list,  for  taxation,  double  taxed  or  dog  killed,  2971. 
female,  allowed  by  owner  to  run  at  large,  misdemeanor,  3303. 

1251 


INDEX. 

DOGS— fo»(ni»ef/; 

larceny  of,  listed  for  taxation,  3501. 

sbeep-killiug;  owner  refusing  to  kill  on  notice,  3304. 

any  one  can  kill  if  found  at  large,  3304. 
towns  may  tax,  2924. 

DOWER : 

allotted :  by  agreement,  when,  3087. 

applicatiou  for  allotment,  3088. 

how  land  iu  another  county  taken  to  account.  3089. 

in  cue  piece  of  land,  if  desired,  3084. 

notice  to  parties,  3000. 

oath  of  jury,  2360. 

procedure,  3089. 
consists  of  what,  1730,  3084. 
conveyance;  by  husband  alone,  effect  of,  9.59.  308.5. 

wife  joining  in,  and  privately  examined  bars  dower,  3086. 
insane,  husband  can  convey  free  of  dower,  950. 
divorce  bars,  2109,  2110. 

fees  of  sheriff  in  allotment  proceedings.  2777. 
growing  crops  do  not  puss  with  land  allotted  as,  47. 
lands  in  which  wife  endowed.  1730,  3084. 

mortgage  by  husband  alone  to  secure  purchase  money  bars,  3085. 
not  taken  for  husband's  debts,  3082. 
partition  of  land  covered  by,  2508,  2509. 
who  entitled  to,  3083. 

who  not  entitled,  2110. 
wife  may  quitclaim  and  release,  on  marriage,  2108. 

DRAINAGE:     See  Volume  II. 

bridges  across  drainways  must  be  maintained,  2697. 
canals,  etc.,  cut  by  consent,  obstructing  a  misdemeanor,  3375,  3376. 
costs  in  proceedings  to  drain  lowlands,  1268  (8),  1269. 
damages  assessed  for ;  commissioners'  compensation,  2795. 
obstructing ;   ditches   or    dams   constructed   by   legal    proceedings,    misde- 
meanor, 3381. 
drain  used  in  mining  operations,  misdemeanor,  3380. 
(lrain\^:iys  on  farms,  l)y  felling  trees  therein,  etc.,  misdemeanor,  3382. 
streams  in  drainage  district,  misdemeanor,  3378. 
person  refusing  to  comply  with  requirements  for,  misdemeanor,  3377. 
refusing  to  act  as  commissioner  for,  of  swamps,  etc.,  misdemeanor.  .3370. 
servient  owner  obstructing  canal  or  ditch,  etc.,  misdemeanor,  when.  .3375. 
3376. 

DRAW  BRIDGES  :     See  Bridges, 
county  erects,  when,  2698. 
fastening  vessels  to,  3774. 
owners  of  steamboats  notifying  bridge  owner  to  erect.  2609. 

failure  to  erect,  forfeiture,  2699. 
railroads  required  to  maintain,  when,  2701. 

DRUGGIST:     See  Pharmacists. 

DRUNKENNESS : 

conductor  may  i)rovent  intoxicated  per.sou  from  entering  tr.-iin.  2U2iI. 

drunkards.     See  Inebriates. 

habitual,  ground  for  divorce  from  bed  and  board.  1502. 

not  permitted  at  dispensaries,  3515. 

public,  a  misdemeanor,  3733. 

ticket  agent  may  refuse  ticl<et  to  drunken  passenger,  2625. 

1252 


INDEX. 

DUELLING : 

challenge ;  sendlug,  accepting  or  bearing,  imnishment  for,  3628. 

alders  and  counsellors,  punished  how,  3028. 
person  killing  another  in,  guilty  of  murder,  3629. 

aiders,  etc.,  accessories  before  the  fact,  3629. 

DUNKERS : 

may  affirm  instead  of  taking  oath,  2356. 

DYNAMITE : 

exploding,  unlawfully,  misdemeanor,  3794. 

fish  ;  Idlling  with,  2406. 

sold  without  special  license,  misdemeanor,  3817. 

EASEMENTS : 

drainways.     See  Drainage, 
eminent  domain.     See  Eminent  Domain, 
highways.     See  Roads  ;  Bridges ;  Ferries, 
mill ;  rights  to  dams,  etc.     See  Mills. 

rights  of  way  for  railroads,  telegraph  and  telephone  lines,  etc.     See  Con- 
demnation Proceedings. 
no  title  to,  acquired  by  adverse  possession,  388. 
streets.     See  Municipal  Corporations, 
water  companies,  for  water  supply.     See  Water  Supply, 

E.IECTMENT : 

betterments  claimed  by  defendant,  procedure,  652-666.     See  Betterments. 

bond  required  of  defendant  before  answering,  453,  454. 

costs  in  action  of,  judgment  for,  1204,  1266. 

damages  against  defendant ;  bow  long  may  be  claimed,  054,  2004,  200(5. 

evidence :  fitting  land  to  description,  1005. 

land  located  by,  when  description  vague.  948. 
execution  stayed  pending  appeal  in  action  of,  how,  001. 
fee  of  sheriff  for  serving  writ  of,  2777. 
feigned  Issues  in,  abolished,  357. 
landlord  ejecting  tenant,  when,  2001. 

appeal,  2008. 

complaint  verified,  how,  2002. 
what  to  contain,  2002. 

defendant  entitled  to  restitution,  when,  2009. 

forms  used  in  proceedings,  2011. 

judgment  and  execution,  2005. 

proceedings  stayed  by  tenant's  tender,  2007. 

summons  issued,  when,  2002. 
service  of  summons,  2003. 

tenant  wrongfully  removed,  entitled  to  damages,  2010. 

trial,  2005. 
possession  deemed  to  follow  legal  title  In  action  of,  386. 
survey  of  land  in  dispute,  ordered  by  court,  when,  1504. 
timber  may  be  cut,  pending  action  of,  809.     See  Timber, 
timber  trees  protected  from  being  cut  pending  action  of,  808. 
title  of  real  property  in  controversy,  justice  dismisses  action,  1424. 

plaintiff  sues  in  superior  court ;  estoppel,  1424. 
1         venue  in  action  of,  419. 

ELECTIONS  :     See  Volume  II. 

abetting  registration  of  illegal  voter,  misdemeanor,  3395. 

acting  as  officer  of,  after  removal,  misdemeanor,  3399. 

assaulting  officers,  either  during,  or  at  registration,  misdemeanor,  3385. 

betting  on  result  of,  held  in  this  state,  3384. 

1253 


INDEX. 


ELECTI ONS— coji  /  in  wefi!  ; 


bribiug  or  attempting  to  bribe  voter  at,  misdemeanor,  33S6. 
clerk  of  court ;  chosen,  how,  cS90. 

refusing  copy  of  returns,  misdemeanor,  3398. 
constable  chosen,  how,  933. 

contested  how,  820-S45.     See  Contested  Elections, 
coroner  chosen,  how,  1047. 
corporation  commissioners  elected,  when,  1055. 
corporations,  private,  choose  directors  by.     See  Corporations, 
county  canvassers  disturbed  while  performing  duties,  misdemeanor,  3385. 
county  commissioners :  chosen,  how,  in  the  various  counties,  1311.  1312. 

call  elections  on  proposition  to  contract  county  debt,  when,  1318  (3). 
discharging  or  intimidating  employee  on  account  of  his  vote,  3387. 
dispensaries;  establishment  by,  2074.     See  under  this  head.  Local  option. 

must  not  sell  liquor  election  day,  2077. 
disturbing ;  misdemeanor,  3385. 
fees  of  officers  of.  2784. 

fees  of  register  of  deeds  for  recording.  2776. 
felon  not  restored  to  citizenship,  voting  at,  felony,  3388. 
fraudulent  voting  at,  felony.  3304. 
Impersonating  another  registered  voter,  felony,  3395. 
justice  of  the  peace,  chosen  how.  1409. 
liquor :  treating  with,  at,  misdemeanor,  3389. 

no  sales  of,  by  dispensary,  on  election  day,  2077. 
local  option ;  boxes  provided,  how.  2071. 

conducted  how,  2070,  2944,  2907. 

dispensaries ;  effect  of  result  on,  2074. 

distilleries  ;  effect  of  result  on,  2072. 

not  held  ofteuer  than  two  years,  2069. 

order  for,  by  governing  body.  2009. 
what  questions  submitted,  20G9. 

petition  for,  number  of  signers  required,  2069. 

saloons ;  effect  of  result  on,  2073. 

tickets  to  read  how;  shall  be  of  white  paper,  etc.,  2071. 

voters  at.  who  are  qualified,  2071. 
municipal ;  certain  towns  excepted,  2944. 

ballots  and  ballot  boxes,  2962. 

canvassing  the  returns,  2964-2966. 

challenging  voters,  2955,  2956. 

illegal  voter  registered,  name  erased,  2956. 

c-ounting  ballots:  declaring  result,  2963. 

electors  qualified,  who  arc,  2961. 

held  when,  2945. 

judges  of;  appointment  and  oath,  2958. 
duties  of,  2959,  2963. 
vacancy  in  office  of.  filled  how.  2954.  1] 

notice  of,  published,  2947.  11 

poll  books  kept.  2959.  " 

polling  places  established,  2946.  , 

open  and  close  when,  2960. 

registrars  appointed  ;  vacancy  in  offices  filled,  2947.  2954. 
oath  of,  2948. 

registration  of  voters,  2949-29.5.3. 
books  deposited  where,  2957. 

special :  notice  necessary,  2967. 

tie  decided  how.  2966. 
oath  corrujitly  taken  by  voter  at,  perjury,  .3.390. 
officer  holding,  making  false  entry  of,  felony,  3394. 
presenting  false  exemption  from  poll  tax,  forgery,  .3401. 


INDEX. 

ELECTIONS — continned: 

railroads ;  election  on  subscriptions  to,  2558-2562. 

called  by  county  couimissioners,  how,  2559. 

directors  of,  bow  elected,  2552. 

held  under  what  regulations,  2560. 

majority  voting  "aye,"  stock  subscribed,  2559. 

bonds  issued ;  bow  interest  and  principal  paid,  2561. 
taxes  to  pay ;  bow  levied  and  collected,  2562. 
registering  at,  in  more  than  one  place,  felony,  3395. 
register  of  deeds ;  elected  how,  2650. 

refusing  copy  of  returns ;  misdemeanor,  339S. 
registrar ;  disturbing,  while  registering ;  misdemeanor,  3385. 
returning  officer  of ;  failing  to  perform  duty ;  felony,  3391. 

making  false  return,  felony,  3397. 
returns  of ;  officer  failing  to  make,  misdemeanor,  3396. 
sheriff ;  election  of,  2808. 

failing  to  furnish  list  of  voters  paying  poll,  misdemeanor,  3-100. 
state  board  of.     See  State  Board  of  Elections, 
stock  law  ;  county  voting  ;  result,  1672. 

carried  in  favor  of,  when  goes  into  effect,  167.5. 

district  voting  on ;  result,  1674,  1675. 

bow  held,  1076. 

new  registration  may  be  ordered,  1677. 

township  voting ;  result,  1673. 

withdrawal  of  certain  territory  from  operation  of,  1675.       - 
territory  withdrawing  must  build  fence,  1675. 
town  commissioners,  election  of,  2919. 

ELECTRICAL  INSPECTOR : 

appointment  and  duties  of,  2988. 

ELECTRIC  LIGHTING  AND  POWER  COMPANIES : 

eminent  domain,  right  of,  2575.     See  Condemnation  Proceedings. 

felling  trees  so  they  fall  on  wires  of,  misdemeanor,  3819. 

gas  companies  may  supply  electric  lights,  1132. 

incorporated  under  general  law,  1137.     See  Corporations. 

must  not  turn  current  on  building,  owner  having  no  inspection  certificate, 

3001. 
pon'ers  of ;  to  contract  for  right  of  way,  1572. 

to  condemn  right  of  way,  1574-1576.     See  Condemnation  Proceedings, 
construct  lines  over  public  highways,  1133,  1571. 
exercise  right  of  eminent  domain,  1573. 
tampering  with  plant,  etc.,  wires  of:  misdemeanor.  3666. 
wiring  of  houses  by.  must  conform  to  building  regulations,  3001. 
in.spection  of;  fees  of  inspector,  3001. 

ELECTRIC  RAILWAYS  :     See  Street  Railways. 

ELOPEMENT : 

abandonment.     See  Abandonment. 

man,  with  married  woman  ;  felony,  3360. 

wife  guilty  of,  forfeits  rights  in  husband's  estate,  8,  2110. 

EMBALMING  :     See  Volume  II.    . 

without  license,  a  misdemeanor,  3644. 

EMBEZZLEMENT : 

administrator,  etc.,  misapplying  funds,  etc.,  3406. 

agent  of  any  person  misapplying  funds  or  property,  .3406. 

bank  officers  misapplying  bank  funds,  etc..  3325. 

1255 


INDEX. 

EyiBE7/Z.I.EyiENT—coiiliiii(e(I: 

benevolent  society ;  treasurer  of,  misapplying  funds,  ;?4U!). 
bonds  of  state;  misapplying,  3407. 
derU  of  any  one  misappropriating  funds,  etc.,  :{406. 
consignee  converting  ]iroperty  to  own  use,  3400. 
conspiracy  with  railroad  officers  to  embezzle,  3404. 

venue  of  action,  3404. 
corporation  officers  misapplying  corporate  property,  3325. 
county  officers  misaiiplying  funds,  etc.,  of  county,  3408. 
defined,  340C. 

guardian  misapplying  funds,  etc..  3406. 
indictment  for,  3252. 

insurance  agent  misajiplying  company's  funds,  etc.,  3489. 
liabilitj'  for,  civilly.     See  Conversion. 

municipal  officers  misapplying  municipal  funds,  etc.,  3408. 
partner,  surviving,  misapplying  partnership  funds,  etc.,  3405. 
public  officer  ;  failing  to  pay  over  fines,  etc.,  3.^94. 

holding  property  of  his  office,  3408.  E\ 

railroad  officer  misapplying  railroad  funds,  etc.,  .3403. 

conspiracy  to  aid,  3404.  E' 

venue  of  action,  3403,  3404. 
servant  converting  property  of  employer,  3400. 
sheriff  misapplying  taxes,  3410. 

state  institutions ;  officers  of,  misapplying  funds,  3408. 
state  officers  misapplying  securities,  etc..  .3407. 
tax  collector  misapplying  taxes,  3410. 
trustee,  or  person  in  position  of,  misapplying  funds,  etc..  3400,  3408. 

EMINENT  DOMAIN: 

land  condemned  under  right  of,  for  right  of  way,  2575-2598.     See  Condem- 
nation Proceedings, 
right  of,  granted  to — 

bridge  companies,  2575. 
canal  companies.  2575. 
electric  companies,  1573,  2575. 
mill  owners;  limited,  2122,  2123. 
plank-road  companies,  2575. 
railroad  companies,  for  right  of  way,  2575. 
to  change  route,  2573. 
to  construct  union  depot.  1097  (3). 
street  railway  companies.  1573,  257.5. 
telegraph  and  telephone  companies,  1.57.3,  257.5. 
turnpilve  comiianies.  2.57,5. 

ENGINES : 

traction  engines  allowed  on  public  roads.  2727. 

ENTICING  : 

apprentice  away  from  employment,  misdemeanor,  193. 
children  to  leave  parents,  schools,  etc.,  misdemeanor,  ,3358,  3359. 
minors  to  leave  the  state,  etc.,  misdemeanor.  .3030. 
seamen  to  abandon  vessel,  3555. 
stock  into  stock-law  territory,  3300. 

ENTRY :     See  Grants. 

action  for  land  must  begin  within  one  year  after.  .38.5. 
on  vacant  land  to  obtain  gi'ant.  11102-1712. 


12S6 


INDEX. 

ENTRY-TAKER : 
bond  of,  304,  308. 
duties  of.     See  Grants. 

dying  after  entry  made,  who  issues  warrant,  1702. 
election  of,  1700. 
entry  made  by ;  procedure,  1711. 
fees  of,  1703,  2801. 
oatb  of  office  of,  1703,  2358,  2300. 
office  of,  where  located,  1704. 
register  of  deeds  acts  as,  when,  1701. 

resignation  of,  after  entry  made,  who  issues  warrant.  1702. 
returns  made  to  secretary  of  state  of  land  entered,  1705.  2382. 

failing  to  make  returns ;  penalty,  1706. 
term  of  office,  1700. 
vacancy  in  office  of,  how  filled,  1701. 
warrants  issued  by.     See  Grants. 

EQUALIZATION,  BOARD  OF :     See  State  Tax  Commissioners. 

EQUITV  OF  REDEMPTION : 
sale  of.  imder  execution,  G29. 

what  sheriff's  deed  must  show,  631. 
wife's  dowry  in,  3084. 

EQUITY  SUITS:  

distinctions  between  actions  at  law  and,  abolished,  354. 
transferred  to  superior  court,  1503. 

ESCAPE : 

action  for,  barred  when,  397. 

convicts  hired  to  another  county,  escaping,  misdemeanor,  3658. 

defendant:  in  arrest  and  bail  escaping,  sheriff,  lial)le,  749. 

in  execution  or  attachment  escaping,  sheriff  liable,  2823. 
officer  allowing  state  convicts  to  escape ;  misdemeanor,  3059. 
allowing  prisoner  to  escape,  penalty.  3.577. 
forfeits  $100,  when,  3227. 
prisoner  breaking  prison,  misdemeanor,  3657,  3658. 
solicitor  prosecutes  officer  for,  2822. 

ESTATES : 

contingent  limitations  construed  bow,  1581. 

conveyance  of.     See  Conveyances. 

conveyance  to  uses,  1584. 

curtesy,  tenancy  by,  2102.     See  Curtesy,  Tenant  by  the. 

devi-ses  construed  how,  3138-3146. 

dower,  tenancy  in,  3084.     See  Dower. 

easements.     See  Easements ;  Eminent  Domain. 

equity  of  redemption.     See  Equity  of  Redemption. 

executors  hold,  bow,  166. 

fee  simple,  estate  tail  construed  to  be,  when,  1.578. 

held  by  religious  societies,  how,  2672. 

in  common.     See  Tenant  in  Common. 

.ioint  tenancy  :  survivorship  abolished ;  proviso.  1579. 

life.     See  Tenant  for  Life. 

life  of  another,  not  devised,  an  estate  of  inheritance.  1.5.56  (r.  11). 

partnership ;  surviving  partner  has  title  for  what  purpose,  1.579. 

railroad  company's,  in  right  of  way.  2587. 

remainders,  contingent,  sold  how,  1.590.     See  Remainderman. 

reversion,  grantee  of :  rights  against  life  tenant,  etc..  1585. 

spendthrift  trusts  authorized,  1.588. 

can  not  be  executed  for  debts  of  child,  1588. 

1257 


INDEX. 

ESTATESr—continucil: 

tail  converted  into  fee  simple,  1578. 
tenancy  for  years.     See  Tenant  for  Years, 
title  to,  quieted  by  action,  1589. 
trustees  hold,  how,  1580. 
trust.     See  Trust  Estates, 
unborn  children  take,  how,  1582. 

EVIDENCE : 

abandonment ;  husband  not  working,  etc.,  presumed,  3356. 
abduction  of  married  woman  ;  woman's  testimony  insufficient  3360. 
account  itemized  and  verified  as,  1625. 

book,  as,  1G22,  1623. 
action  against  heir  for  debt  of  decedent ;  what,  necessary,  53,  56,  57. 
administration  ;  letters  of,  from  foreign  state,  how  proven,  1618. 

adjudicated  account  evidence  of  what,  127. 

vouchers  evidence  of  payments,  99,  101,  102. 
apprentice's  indentiu-e  as,  200. 
baggage;  loss  of.  prima  facie  negligence,  1910. 
bastardy  proceedings,  woman  examined,  255. 
birds ;  shipping,  beyond  state,  what  prima  facie,  of,  3471. 
bonds,  official ;  copy  as  evidence,  1616. 
book  accounts  as,  1622.  1623. 

copies  of,  as  evidence,  1021. 
bridges ;  existence  for  ten  years  presumptive,  of  order.  2695. 
buggeiy,  emission  of  seed  not  necessary,  3639. 
burden  of  proof.     See  Burden  of  Proof, 
burnt  and  lost  records  ;  copy,  as  evidence,  when,  327,  330. 
carrying  concealed  weapons :  possession,  prima  facie,  when,  3708. 
certificate  of  purchase  at  tax  sale  as,  2902. 
citizenship :  what  necessary  to  restore,  2678. 

clerk's  receipt  for  costs ;  evidence  in  action  by  client  against  attorney,  214. 
common  law  of  another  state  jiroven,  how,  1504. 
compromise ;  offer  to,  not  competent,  S60. 
confederate  currency  ;  value  of,  shown  how,  1659. 
contracts ;  certain  ones  must  be  in  writing  to  be,  974-978. 
corporate  existence  proven  how,  2550. 

corporation  commission;  testimony  in  investigations  of.  written.  1065. 
county  commissioners'  records  ;  copy  as,  1616. 

prima  facie,  as  to  how  voted  on  approval  of  bonds.  314. 
court  orders ;  recitals  in,  prima  facie,  of  what,  341,  342. 
deed;  copy  of,  as,  988,  1598,  1.''.99,  1619. 

burnt  and  lost,  registration  lost ;  presumption  as  to  effect,  1602. 

evidence  when  probated  out  of  state,  when.  1023. 

liroducing  forged,  in  evidence,  felony,  3424. 

proof  of  contents  of.  when  destroyed,  by  court  record,  337. 

sheriff's,  when  original  lost,  336. 
demurrer  to  ;  effect,  539. 
depositions  taken,  and  read  as,  1645-16."i5.     See  Depositions. 

witness  defaulting ;  prima  facie  evidence  of,  when,  1650. 
description  ;  fitting  land  to  the,  by  parol,  1605. 
diamond-hack  terrapin  ;  possession  prima  facie,  of  unlawful  catching,  when. 

2370. 
divorce;  party  suing  can  not  testify  as  to  adultery.  1564. 
documents;  copies  as,  1616. 

dredging  for  oysters  presumed,  when,  2.301,  2397. 
dynamiting  fish  ;  possession  of  fish  so  killed,  prima  facie,  2466. 
enticing  minors  out  of  state;  what  sufficient.  .3630. 
escape;  burden  of  proof  on  officer  allowing.  .3577. 
examination  of  parties.  8fi4-.872.     .'^ee  Examination  of  Parties, 
expectancy  of  life,  how  shown.  1626. 

1258 


. 


|i 


INDEX. 

EVIDENCE — contmued: 

false  pretense ;  not  necessary  to  show  who  defrauded,  3432. 

what  i)rima  facie,  of  false  pretense  as  to  working,  3431. 
fishing  without  license ;  agents  of  fisherman  must  testify,  2459. 
footways  established  by  prescription,  2695. 
fornication  and  adultery ;  admission  not,  when,  3350. 
free  trader  ;  certified  copy  of  writing  making,  used  as,  2114. 
futures,  dealing  in  ;  what  necessary  to  prove,  3826,  1G90. 
gambler  giving,  against  companions  not  incriminated,  1688. 
gaming  contracts  sued  on  ;  defendant  pleads  gambling;  plea  not,  when,  1091. 
grants ;  certified  copies  as,  when,  1596,  1610,  1013.- 

certain  copies  of,  validated,  competent,  1597. 
handwriting,  proof  of.     See  Handwriting, 
homestead  appraiser's  return  ;  copy  as,  703. 
hunting ;  deer  by  firelight ;  accomplice's  testimony,  3462. 

in  New  Hanover  count.v,  how  proven,  3405. 
incriminating,  compellable  in  supplemental  proceedings,  672. 
inspection  of  writings  allowed  adverse  party,  1050. 
joint  resolutions  of  general  assembly  proven,  how,  1592,  1593. 
judge  reviews,  in  making  charge  to  jury,  how,  535. 
judgment  admitted  as,  when,  509.  2.587. 
justice's  preliminary  hearing,  before  grand  jury,  3205. 
justice's  records ;  copies  evidence  to  show  once  in  jeopardy,  3200. 
letters  testamentary,  etc.,  from  other  state ;  copies  as,  1018. 
libel  and  slander ;  mitigating  circumstances  as,  502. 
liquors ;  person  procuring  for  another,  presumption,  3534. 
lynching ;  testimony  of  participant  in,  not  against  himself,  3201. 
McCulloch ;  title  under,  supported,  how,  1000. 
Martin's  collection  of  act  proven,  how,  1593. 

original  grants  to,  not  necessary,  when,  1601. 
Moore  county  records  destroyed,  presumed  regular,  when,  344. 
mortgage;  copy  of,  as,  1598,  1599. 

mortgaged  property ;  prima  facie,  of  disposing  of,  3435. 
mortuary  tables  as,  1026. 
negotiable  instruments ;  holder  deemed  in  due  course,  2208. 

indorsement,  undated,  presumed  done,  when,  2194. 
place  of  making,  presumed,  219.5. 

notice  of  dishonor  deemed  given,  when,  2255,  2256. 
new  promise  to  pay  debt  must  be  written,  371. 
notice  to  creditor  by  surety  demanding  immediate  action,  as,  2848. 
orders  of  court  of  pleas,  etc.,  presumed  regular,  339. 
ordinances  of  towns,  etc..  proven,  how,  1595. 
pleadings  in  civil  action  not  competent,  in  criminal,  493. 
power  of  attorney  ;  copy,  as,  1598.  1599. 
process,  receipt  for,  as,  2816. 
production  of  writings  enforced,  1057. 
raije ;  emission  of  seed  not  necessary  to  c-omplete,  3639. 
rates  ;  fixed  by  corporation  commission  presumed  fair,  1075,  1112. 

certified  by  clerk  of  commission,  prima  facie  regular.  1112. 
records;  certain  counties,  proven  by  copy  in  books.  1611,  1612,  1615. 

of  state  or  U.  S.  government,  proven  b,y  copy,  1617. 
copy,  how  authenticated,  1617. 
referee  takes,  and  reports,  how,  523-525. 
rent,  reasonable,  shown,  how.  1986. 
rules  of,  before  corporation  commission,  1069. 
sales  book  kept  by  sheriff  as,  2892. 

seamen,  harboring :  finding  on  premises  prima  facie,-  .3.556. 
second  criminal  offense  proven,  how,  3249. 
seduction ;  woman's  unsupported,  insufficient,  3354. 
settlement  of  administrator,  vouchers  as,  99,  101,  10'2. 
statutes  of  general  assembly,  jiroven.  how,  1592. 

of  other  states,  proven,  how,  1594. 

1259 


INDEX. 

EVIDENCE— cOTi/imicd; 

supreme  court  can  allow  taking  of  additional,  when.  1545. 
suretyship  shown  by,  when,  2.S40. 
surveys ;  certified  copies  as,  1596. 

certificate  of,  registered,  is  evidence,  when,  2603. 

several  tracts  made  one  boundary  ;  survey  evidence,  when,  1505. 
tax  deeds  :  recitals  in  as,  1606,  2909. 
timber,  effect  of  branding,  3020. 
tradeniarli,  certified  copies  of,  as,  3015. 
will ;  copy  of,  as,  1003,  1007,  1008,  1009,  1019,  3130. 

how  far  probate  conclusive,  312S. 

presumed  to  be  properly  probated,  in  Haywood  countj-.  1614. 

probate  of,  3122-3134. 

witnesses  to,  dead;  how  proven,  3121. 
witnesses  competent  to  testify.    See  Witnesses. 
witness  ticket  sufficient,  of  debt  due  witness,  1299. 
writings ;  admission  of  genuineness  procured,  how,  1658. 
written  instruments  proved  otherwise  than  by  attesting  witness,  100 1. 

EXAMINATION  OF  PARTIES : 

action  for  discovery  abolished,  864. 

adverse  partj* :  admission  by,  of  genuineness  of  writing.  16.58. 
compelled  to  attend  and  be  examined  before  ti-ial,  860,  867. 
only  in  his  own  county,  860. 
refusing  to  attend,  contempt.  ,S69. 
may  be  examined  on  own  behalf,  when,  870. 
new  matter  brought  out,  right  to  rebut,  870. 
co-plaintiffs  and  co-defendants  may  examine  each  other,  872. 
party  in  interest  examined.  871. 

production  of  paper-writings  compelled,  when,  16.50,  1658. 
testimony  of  parties  may  be  rebutted,  808,  870. 

EXCEPTIONS : 

administration  account  stated,  any  party  may  file,  118. 

allotment  of  exemptions,   699,   706.     See   Homestead ;   Personal   Property 

Exemption, 
condenmation  of  proceedings ;  exceptions  to  juiy's  finding.  2587,  2.588. 
corpor.ation  commission's  decision,  1074. 
corporation  receiver's  allowance  of  claims,  12.30. 
deemed  taken,  when.  554. 

partition  proceeding :  commissioner's  report.  2494.  2.501,  2.505.  2513. 
referee's  findings,  525. 
when  and  how  taken  on  trial  by  juiy,  554. 

on  trial  by  judge.  542. 
when  motion  to  dismiss  under  Hinsdale  act  fails.  539. 

EXCUSABLE  NEGLECT : 

judgment,  order,  etc..  set  aside  for,  when.  513. 

EXECUTION : 

against  corjiorations,  1212-1218.     See  Coi'porations. 
property,  015,  616. 
tenant  in  summary  ejectment,  2005. 
the  person.  OKI.  02.5. 
bastard.v  proceeflings ;  execution  for  maintenance,  201. 
betterments  claimed  on  ;  prooe<lure,  0.52-006.     See  Retternients. 
capital  felons,  .3284-3280.     See  Hangings, 
colts,  etc.,  never  included  in  exemption  ;  reason  for.  2025. 
costs;  itemized  bill  of,  must  accompany.  12.52. 
on  appeal,  collected  how,  by.  1549. 
sheriff  must  pay  to  clerk,  when  collected  on  penalty,  640. 

1200 


INDEX. 

EXECUTION— co!?<(rt«ed; 

creditors  may  issue,  against  decedent's  estate,  when,  121,  102. 
crops ;  tenant's  part  not  sold  as  landlord's  under,  1998. 

growing :  not  subject  to  sale  until  matured,  C32. 
debtors  of  judgment  debtor  may  pay  off,  674. 
equity  of  redemption  subject  to,  620. 

deed  of,  on  sale,  contains  what,  631. 
exemptions  from  sale  under,  685-709,  1588.   See  Homestead  ;  Personal  Prop- 
erty Exemption, 
fees  and  allowances  to  sheriff  for  serving;  proviso,  2777. 

for  c-ollecting,  2777. 
form  of;  generally,  622-624,  627. 

against  married  women,  617. 

must  be  signed  and  sealed,  616. 
homestead ;  allotted  before  levy  of,  687,  692.    See  Homestead. 

levy  on  excess  over,  692. 

when,  subject  to  execution,  686. 
husband's  interest  in  certain  lands  not  subject  to,  2097. 
issuance  of ;  after  three  years,  by  leave  of  court,  620. 

alias  execution  issued,  when,  618. 

at  instance  of  personal  representative,  164. 

clerk's  fee  for,  2773. 

from  what  court,  623,  1481. 

in  claim  and  delivery  proceedings,  622,  627. 

in  summai-y  ejectment  by  landlord,  2005. 

time  of ;  by  clerk  after  judgment,  618,  619. 
failure  to  issue,  penalty,  618. 

within  three  years  as  of  course,  619. 
judgment  debtor  arrested  after,  when,  62.5. 
judgment  enforced  by,  how,  615. 
kinds  of,  616. 

leave  to  issue,  after  three  years,  obtained  how,  620. 
levy  of ;  on  personal  property,  627. 

corporate  stock,  121.5,  1217. 
officer  not  taking  possession  ;  bond  required,  6.33. 
remedy  on  bond  when  condition  broken,  635. 
surety  on,  bond  furnished  inventory,  634. 

on  realty ;  after  homestead  allotted,  687,  692. 

officer  levying  liefore  allotment;  misdemeanor,  3584. 
lien  of;  on  personalty  from  levy,  627,  634,  1482. 

on  realty,  574. 
liens ;  enforcement  of,  by  2025,  2029,  2030. 

justice's  execution  to  enforce,  on  land,  invalid,  1482,  2030. 
payments  made  on,  duty  of  clerk,  6.36. 

personal  property  exemption  from,  685.    See  Personal  Property  Exemption, 
personal  representative ;  successor  to,  may  Issue,  164. 
party  in  ;  can  not  be  released  on  habeas  corpus,  1850. 
party'  dying  in ;  new  one  issued  against  property,  626. 
property  subject  to,  629. 
return  of ;  clerk  must  docket,  636. 

enforced,  how,  2817. 

how  made;  when  no  sale  for  want  of  bidders,  650. 

to  what  court,  623,  1481. 

when  to  be  made.  624,  1481. 
sales  under,  641-651.     See  Execution  Sales, 
satisfied  ;  by  instalments,  when.  582. 

clerk  sends  copy  of  payments  to  other  counties,  when.  036. 

payment  by  debtors  of  judgment  debtor,  674. 
sheriff  collecting  money  on,  must  pay  over  immediately,  2821. 
spendthrift  trust  not  subject  to,  1.588. 
stay  of ;  when.  590,  598. 

1261 


INDEX. 

EXECVTION— continued  : 
stay  of — continued. 

clerk  enters  on  docket,  when,  621,  1479. 

by  supersedeas,  584. 

in  justice's  court ;  for  how  long,  etc.,  1483,  1484. 

peuding  appeal  in,  1485-1488. 
Ijending    aijpeal ;    by    giving   undertakings,    590,    598,    602,    603,    842, 
1485-1488. 
by  deposit  of  money  In  court,  598. 

deposit  of  property  litigated  over,  599. 
selling  perishable  property,  .598. 
surety  may  dissent  to.  2845. 
supersedeas  suspends,  when,  584. 

supplemental    proceedings    to    enforce,    007-684.     See    Supplemental    Pro- 
ceedings, 
supreme  court  may  issue,  returnable,  where,  1542. 
surety,  execution  against,  when,  1251,  2840-2842. 
tax ;  execution  to  another  county  to  collect.  2871. 

indorsement  of  tax  list  equal  to  execution,  2856. 
tested  how,  624. 

trust  estates  subject  of,  027,  029. 
undertaking  to  stay.     See  under  this  head.  Stay  of,  etc. 

sureties  becoming  insolvent,  new  required,  598. 
variance  between,  and  judgment ;  effect  of,  628. 
what  subject  to  sale  under,  629. 

EXECUTION  SALES : 

advertisement :  of  sale  of  personalty,  648. 

of  sale  of  realty,  641. 

cost  of,  in  newspaper,  641. 

sheriff's  fee  for  making,  2777. 
days  appointed  for,  643-640. 
corporate  stock  of  defendant  sold,  how,  1215. 
no  bidders  at ;  return  made  by  sheriff,  650. 
notice  of ;  advertisement  of,  641,  648. 

served  on  defendant,  642. 

served  on  the  governor,  when  state  interested,  642. 
penalty  for  selling  contrary  to  law,  049. 
personal  property  ;  forthcoming  bond  having  been  given,  034. 

sale  must  be  made  when,  034. 

subsequent  levies  on  ;  when  gain  preference,  034. 
■  postponed ;  after  advertisement,  how,  045. 

more  than  six  days ;  validated,  certain  cases,  040. 
proceeds  of,  disbursed :  allowance  for  keeping  stock,  037,  638. 

verified  account  of  expenses  filed,  038. 
purchaser ;  not  affected  by  certain  variances  between  judgment  and,  628. 

of  defective  title,  remedy  against  defendant,  030. 

of  trust  estate;  furnished  with  deed  by  whom,  030. 
real  property  ;  advertised,  how,  041. 

sold  where  and  by  whom,  022. 

who  executes  deed  for,  622. 
surety's  property  not  sold  until  principal's  exhausted,  2841. 
time  of  holding,  in  cities,  044. 

sale  of  chattels  after  levy,  034. 
day  of,  044. 
what  property  subject  to,  629. 

EXECUTOR : 

action  against ;  on  bond,  30,  144. 

barred,  when,  393,  395  (0). 

by  successor,  31. 

for  legacy,  etc.,  144. 

pending,  when  letters  revoked,  continued  by  whom,  165. 

1202 


R 


: 


INDEX. 

EX  ECUTOR— eo/(  ( inued  : 

action  against — continued. 

against  sureties  on  bond,  barred,  when,  395  (6). 

venue  of,  421. 
bond ;  given  before  qualification,  when,  29,  319. 

mortgage  in  lieu  of,  2G5. 

renewal  or  increase  required,  32. 

failure  to  give,  letters  revoked,  34. 
issued  to  another,  35. 

required,  when,  28. 

surety  company  may  give,  273. 

surety  on,  released  bow,  33. 
compensation  of,  149. 

costs ;  liable  for,  when  suing  or  defending  In  bad  faith,  1277. 
cross-index  of  appointment  of,  kept  by  clerk.  915  (18). 
death  of ;  effect  on  land  devised  to  be  sold,  82. 
debt  of ;  not  discharged  by  appointment,  51. 

proved  and  paid  as  others,  89. 
deposits  funds  at  own  risk,  1793. 

duties,  etc.,  in  administering  estate.     See  Administration, 
embezzling  funds  or  property  of  testator,  punishment  for,  3406. 
executor  de  son  tort :  defined,  2. 

administration  by,  prior  to  July  1,  1869,  validated,  168. 
executor  of,  disqualified,  15. 
executrix  marrying;  husband  gives  bond,  28  (2). 

letters  revoked,  when,  28  (2). 
foi-eigner  intermeddling  as,  without  giving  bond,  28. 
holds  as  joint  tenant  with  other  representatives,  166. 
letters  testamentary  ;  issued  to,  29. 

revoked,  31,  34,  37,  38. 
liability  of ;  for  conversion,  167. 

for  costs,  when,  97,  115,  1277. 
debt  as  surety,  when,  974. 
delay  in  collecting,  65. 
loss  of  funds  on  deposit,  1793. 
not  paying  taxes,  2862. 
selling  personalty  out  of  time,  60. 
waste,  107. 
oath  of,  29,  2300. 

power  of  sale  in  mortgage,  etc.,  executed  by,  when,  1031. 
powers  granted,  not  affected  by  chapter  on  administration,  170. 
probate  of  will ;  executor  may  apply  for,  3122. 

executor  competent  witness  to  prove  will,  3119. 
real  estate,  sale  of;  bond  given,  when,  28. 
removal  of;  effect  on  land  devised  to  be  sold,  82. 

I  who  appoints  administrator,  14. 

renunciation  of,  10. 
deemed,  when,  13. 
service  of  process  on  absent,  when  no  bond,  163. 

:XECUTRIX  :     See  Executor. 

(EXEMPTIONS : 

from  arrest  in  civil  actions;  women,  except  in  certain  cases,  727 
every  one.  on  Sunday,  727. 
jurors,  when.  1979. 

witnesses,  while  attending  court,  1644. 
jury  service.  1900,  1961,  1980. 
poll  tax,  1318. 

presenting  false,  at  election,  misdemeanor,  3401. 


INDEX. 

EXEMPTIONS— co»/;)H;e(?.- 

from  sale  under  execution,  CSS. 

personal  property.     See  Personal  Property  Exemption, 
real  propertj-.     See  Homestead, 
taxation ;  munieipal  bonds  exempt,  when.  20T0. 
working  on  pulillc  roads,  272G. 

EX  PARTE  PROCEEDINGS : 
begTin  by  petition,  how,  718. 
clerk  hears  summarily,  719. 
infant's  o.state  involved,  .iudge  must  approve,  720. 

approval  by  judge  prior  to  February  10,  1887,  validated,  721. 

EXPLOSIVES : 

bombs,  etc.,  firing  oft",  a  mi.sdemeanor :  exceptions.  .'>794. 
dynamite;  killing  flsh  by  exploding;  misdemeanor,  2-l(i(). 
sold  without  a  special  license ;  misdemeanor,  3S17. 

EXPRESS  COMPANIES : 

corporation  commission ;  duty  and  power  to  investigate,  1004,  10G6-1071. 

demurrage:  rates  of,  fixed  by  corporation  commission.  1100. 

discriminating  between  connecting  lines ;  penalty,  lOSS. 

handling  of  freight  by.  at  stations,  regulated,  1094. 

long  and  short  haul  rates  conti-olled,  how,  1107. 

penalty :  for  officer's,  etc.,  failure  to  make  report  required,  1089. 

for  refusing  to  obey  orders  of  corporation  commission,  1087. 
rates  of;  regulated  by  corporation  commission,  1099.  1104-1107.  1109. 

revised,  when,  1106. 
sales  of  unclaimed  freight  by,  2G37. 

schedule  of :  filed  with  commission,  when  ;  published,  1109. 
evidence  in  all  courts,  111'2. 
■   transportation  allowed  of  certain  freight  by,  free.  110.5. 

FACTOR : 

doing  business  as  trader,  etc.,  without  showing  interest;  liability,  2118. 

FACTS : 

examined  into  by  judge  on  habeas  corpus,  1846. 

issues  of.     See  Issues  of  Fact. 

judge  must  not  express  opinion  as  to,  .535. 

FAIRS: 

horse  entered  for  races  out  of  its  class,  felony.  3429. 
injuring  exhibit  at.  or  going  to  and  from,  misdemeanor,  3668. 

indictment  sufficient,  when,  36(18. 
jierson  entering  grounds  without  permission  :  misdemeanor,  3669. 

FALSE  IMPRISONMENT : 

costs  in  civil  action  for  damages  for,  to  whom  allowed,  1264  (4),  1266. 
limitation,  statute  of,  bars  action  for,  when,  397  (3). 

FALSE  PRETENSE : 

accused  tried  for,  can  not  be  tried  again  for  larceny,  3432. 
advances  obtained  by  promise  to  work  and  failing,  misdemeanor,  3431. 
by  false  representation  of  subsisting  fact,  felony,  3432. 

written  promise  to  pay  from  certain  fund,  misdemeanor,  3434. 
displaying  false  number  on  oyster  boat,  2.388. 
indictment  for.  need  not  state  who  defrauded,  3432. 


INDEX. 

FALSE  PRETENSE— confmttcd; 

insurance  agents  making  false  statements   to  defraud   company,   misclc- 
meauor,  3487. 
olitaining  premiums  by  false  representation,  misdemeanor,  .S-lSii. 
marriage  license  obtained  by,  misdemeanor,  .3371. 
oysterman's  license  secured- by,  2390. 

pedigree  of  breeding  animal  falsely  represented,  misdemeanor,  3307. 
person,  etc.,  making,  of  financial  condition,  felony,  when,  3326. 
registration  of  domestic  animal  procured  by,  3308. 
signature  obtained  by,  felony,  3433. 

FARO-BANKS  : 

conducting,  misdemeanor,  3717. 

FAST  DRIVING : 

over  bridges,  misdemeanor,  3780. 

violation  of  regulations  concerning  automobiles,  misdemeanor,  3793. 

FEEDING  STUFFS  :     See  Food. 

FEES :     See  Salaries. 

action  by  officer  to  collect,  barred,  when,  39.5  (8). 
advanced,  when,  to  officers,  1254,  1440.  1859,  2804. 
appraisers:  of  damages  for  erecting  mill.  2139,  2140. 

of  exemptions   of  debtor.   096. 
attorney  general,  1084,  2747. 
auctioneer,  221. 
bauk  examiner.  2755. 
chain-carrier,  2802. 

clerk,  superior  court.  266,  1799,  1234,  2377,  2773. 
clerk,  supreme  court,  2769. 
commissioner  of  aflidavits,  2796. 

compen.sation  of  officers  otherwise  than  by.     See  Salaries, 
condemnation  proceedings;  commissioner's,  in,  2790. 
constable,  1600,  2787. 

contested  elections ;  fees  of  office  recovered,  how,  835-837,  842,  844. 
coroner,  2775. 

corporation  commission  turn  all,  into  state  treasury,  1114. 
costs,  in  civil  and  criminal  cases,  1249-1308.     See  Costs, 
county  surveyor,  1724,  2802. 
county  treasurer,  2778. 
entry-taker,  2801. 
governor's  private  secretary,  2737. 
.lailer,  1938,  2799. 
.iuror,  1666,  2798. 
justice  of  the  peace,  1666,  2788. 
mayor,  2934. 

mileage  allowed  to  officers.     See  Salaries. 

mills,  location  of;  commissioners',  for  assessing  damages,  2794, 
notary  public,  2800. 
paid  by  whom,  2804. 
partition  ;  commissioner's,  in,  2791-2793. 
pauper  suing,  officer  can  not  renuire,  2804. 
pensions ;  county  board  of,  2783. 
per  diem,  officers  paid.     See  Salaries, 
receiver,  2797. 

register  of  deeds,  20.55,  2656,  2776. 
salaries  paid  officers.     See  Salaries, 
secretary  of  state,  1104.  12.33,  1234,  1755,  2742.  3014-3016. 

officers  making  returns  to,  entitled  to.  2743. 

turns  certain  fees  into  state  treasury.  2741. 

Rev.  Vol.  1—76  1205 


INDEX. 

FEES — co-nlinued: 

sheriff,  1859,  2777,  2883. 

solicitor,  1084,  1288,  2767,  27G8. 

state  board  of  healtli,  for  analysis  of  water  supply,  3055. 

state  librarian  ;  fees  of,  for  copying,  2748. 

witness,  2803. 

FEE  SIMPLE: 

conveyances  construed  to  be  in,  when,  946,  2673. 

devises  construed  to  be  in,  when,  3138. 

estates  tail  converted  into,  1578. 

^fts  to  slaves  convey  in,  when,  949. 

lost  deed,  registi^y  destroyed,  presumed  to  be  in,  1602. 

FEIGNED  ISSUES: 

abolished ;  questions  of  fact  tried,  how,  357. 

FELLOW  SERVANTS : 

railroad  employee  injured  by  negligence  of :  company  liable,  2646. 
killed,  personal  representative  sues,  2646. 

FELONY : 

arrest  on  Sunday  for,  2837. 

defined,  3291. 

punishment  for,  where  none  prescribed  by  statute,  3292. 

FENCES : 

barbed  wire;  building,  unlawfully,  in  certain  counties;  misdemeanor,  3769. 

cutting  wire,  or  injuring  same ;  misdemeanor,  3413. 

injuring  wilfully:  misdemeanor,  3673. 

joint ;  built  by  owners  of  land  on  both  sides,  when,  1664. 

how  removed :  notice  required,  1671. 

removal  of,  when  crop  growing;  misdemeanor,  3412. 

repaired  after  notice,  how,  1670. 

when  owner  adjoining  can  be  made  to  pay  half,  1665. 
how  value  appraised,  1666-1669. 

verdict  of  jury  ;  registered ;  judgment,  1608,   1669. 
lawful :  height  of,  in  different  counties,  1660-1662. 

watercourses  declared,  how,  1663. 
removing,  from  around  graves ;  misdemeanor,  3081. 
stock-law  fence,  etc.,  1672-1686.     See  Stock  Law. 

tearing  down,  misdemeanor,  3411. 
tearing  down,  wilfully  ;  misdemeanor,  3673. 
tenant  injuring  or  removing,  misdemeanor.  3686. 
valuation  of,  by  jury,  in  action  for  contribution,  1666. 

verdict  of  jur.v,  1666,  1667. 

registered  by  register  of  deeds,  judgment,  1668. 
watercourses  declared  to  be  lawful,  when,  1663. 

FERRIES : 

action  against  owner  of,  for  damages,  how  brought,  2709. 
appeal  from  county  commissioners  as  to,  2690. 
bond  given  by  owner  of,  2709. 
condemnation  of  land  for  site  for,  2691. 
damages  by,  indemnity  bond  for,  given.  2709. 
existing,  by  virtue  of  any  court  order,  declared  i)ublic ;  2681. 
owner ;  failing  to  keep  up  public,  etc.,  penalty,  2707. 
may  build  a  toll  bridge  instead  of  ferry,  2708. 
must  erect  draw  in,  when,  2708. 
passenger  on,  delayed ;  remedy,  2709. 

1266 


INDEX. 

FERRIES — continued: 

petition  to  establish,  2684. 

costs  adjudged,  on  hearing,  how,  12G8  (5). 

granted  or  refused,  2690. 

notice  of,  given  how,  26S4. 
powers  of  county  commissioners  over,  1318  (8). 
tolls  of;  regulated  by  county  commissioners,  2707. 

charging  greater  rate  than  fixed,  penalty,  2707. 

ferry  owner  building  bridge  instead  must  charge,  2708. 
unauthorized,  conducting,  within  five  miles  of  public ;  penalty,  2710. 

mail  carriers  may  use  for  certain  purposes,  2710. 

FERTILIZERS  :     See  Volume  II. 

common  carriers  failing  to  inform  board  agriculture,  misdemeanor,  3819. 
manufacturing,  of  fish  unlawfully  caught,  misdemeanor,  24.38. 
removal  or  sale  of,  after  being  condemned  ;  misdemeanor,  3820. 
sale  of;  when  ingredient  deleterious  to  plants,  misdemeanor,  3818. 

in  violation  of  regulations ;  misdemeanor,  3821. 

without  tags;  misdemeanor,  3822. 

FINANCE  COMMITTEE :     See  County  Finance  Committee. 

FINES : 

embezzlement  of ;  felony,  3594. 

imposed  by  court;  paid  to  county  treasurer,  1378. 

go  to  school  fund,  1378. 
judgment  for,  docketed,  force  of,  3282. 

execution  on,  stayed,  pending  appeal.  3282. 
mayor  may  sentence  to  work  on  street  to  pay,  2937. 
officer  failing  to  file  statement  with  education  board,  3579. 
penalties.     See  Penalties  and  Forfeitures, 
prisoner  refusing  to  pay,  sent  to  jail,  when,  1308. 
record  of,  kept  by  clerk.  915   (20),  1377. 

kept  by  justice,  1377. 

by  treasurer,  1398  (4). 
report  of,  to  state  superintendent  of  public  instruction,  1378. 

FIREARMS : 

carrying  concealed,  3708. 

conveying  to  prisoners  to  effect  escape ;  felony,  3662. 

detectives  in  bodies  of  more  than  three  carrying :  misdemeanor,  3703. 

furnishing,  to  lunatics  or  convicts,  misdemeanor,  3517. 

selling,  to  minors,  3832. 

shooting  fish,  misdemeanor,  2456,  2466,  3418. 

or  throwing  at  train,  misdemeanor,  3763. 

on  bridge  across  Trent  river  at  New  Bern.  2456. 

wild  fowl  in  certain  places,  misdemeanor,  3473,  3474,  347(i-3478. 

FIRE  DEPARTMENT : 

buildings ;    regulations    as    to    erection    and    inspection.    2981-3011.      See 

Buildings  in  Towns, 
chief  of;  appointment  and  compensation  by  municipal  authorities,  2981. 
acts  as  building  inspector,  2982. 
duties  as  building  inspector,  2082. 
fireman  exempt  from  jury  duty,  1080. 

FIRE  INSURANCE :     See  Insurance ;  also  Volume  II. 


1267 


INDEX. 

FIRE  LIMITS: 

iiiuniciiial  authorities  must  establisli,  20S5. 

FISH: 

dynamiting :  misdemeanor,  2400. 

fisheries.     See  Fisheries. 

fishing.     See  Crimes  and  Punishments  :  Fishing. 

marlveting  of,  on  streets  of  towns,  2928. 

obstructing.     See  Crimes  and  Punishments ;  Milldanis. 

sale  of,  for  food.     See  Food. 

shooting ;  misdemeanor,  2450.  240G,  3418. 

watercourses,  obstructing  or  i)oIluting.     See  Obstructing;  Water  Supply. 

FISHERIES: 

close  season,  as  to  use  of  certain  nets  In.     See  Fishing. 
defined :  with  reference  to  Cape  Fear  river,  2408. 
established,  how,  1097,  1098. 

improvement  of  land  entered  gives  prior  right  of  fishery,  1098. 

right  to  fisheries  infringed,  misdemeanor,  2400. 
fishing,  generally.     See  Fishing, 
nonresident:  prevented  from  operating,  fraudulently.  2407. 

justice  to  issue  warrant  for,  2407. 
obstructing  passage  of  fish;  misdemeanor.     See  Crimes  and  Punishments; 

Obstructing, 
prior  right  to,  in  whom,  1098. 
robbing  fish-nets ;  misdemeanor,  2478. 
vessels  injuring  fish-nets.  2405. 
wilfully  injuring  or  destroying;  misdemeanor.  3414,  .3415. 

FISHING: 

clams  ;  catching,  unlawfully,  2423. 
close  season  for,  in — 

Albemarle  sound,  2440. 

Bear  Inlet,  2450. 

Black  river,  2470. 

Brown's  inlet,  2450. 

Brunswick  county,  2470. 

Brunswick  river,  2408. 

Cape  Fear  river,  2468,  2472. 

Coharie  river,  2472. 

Ci'oatan  sound.  2446. 

Harnett  county,  2472. 

Ilatteras  inlet.  2446,  2450. 

Haw  river,  2476. 

Hiawas.see  river.  2458. 

Little  river,  2443. 

Lumber  river,  2475. 

marshes  separating  Croatan  and  Pamlico  soinids,  2424. 

Myrtle  Grove  sound,  Perrine's  or  Wliitakor's  crook,  2426. 

Naiitahala  river,  2477. 

Neuse  river,  2452,  2453,  2454. 

New  Hanover  county,  2408,  2470,  2472. 

New  inlet,  2440.  2450. 

Northeast  Cape  Fear  river.  2409. 

Notla  river,  2458. 

Ocracoke  inlet,  2446,  24.50. 

Oregon  inlet,  2440.  2450. 

Pamlico  county,  24.52, 

P.indico  river.  2427,  2428,  2429. 

Pender  county.  2470. 

Samjison  county.  2472. 

South  river,  2472. 

1268 


INDEX. 

FISHING— coittinued : 

close  season  for,  in — continued. 

Tar  river,  2427,  2428. 

Trent  river,  2455. 

Valley  river,  2458. 
cooking  fish,  or  manufactnring  fertilizer  from,  knowing  unlawfully  caught, 

misdemeanor,  2438. 
diamond-back  terrapin  caught  with  drag-net,  etc..  misdemeanor,  2.369. 

close  season  for  catching,  defined,  2370. 
exceptions  to,  2370. 
disobeying  regulations  as  to ;  punishment.     See  Crimes  and  Punishments, 
killing  fish  with  dynamite,  etc. ;  misdemeanor,  2406. 
license  to  fish  in  Neuse  river  on  Pamlico  side,  2453. 
mountain   trout ;    seining   for ;    misdemeanor,    341S. 

in  Cataloochee  creek,  2480. 

near  Grandfather  mountain,  2482. 
nonresident,  with  seines  without  license ;  misdemeanor,  24.59,  2469. 

catching  in  Cape  Fear  for  marketable  purpose ;  misdemeanor,  3816. 

citizen  aiding  nonresident  to  evade  law;  peualties,  2459,  2467. 
persons  compelled  to  testify,  2459. 
seizure  of  seines  for  benefit  of  school  fund,  2459. 
oysters  ;  catching,  2371-2422.     See  Oysters.  \ 

poisoning  streams  to  kill  fish ;  misdemeanor,  3417. 
regulation  of,  2424-2484. 

setting  nets  across  streams ;  misdemeanor,  2457. 
Sunday ;  fishing  on,  penalty,  3841. 
vessels  injuring  nets ;  misdemeanor,  2465. 
violation  of  laws  regarding ;  punishment.     See  Crimes  and  Punishments. 

FOOD :     See  Volume  II. 

"adulterated"  means  what.  3444. 

butterine  defined,  3828. 

defined,  3444. 

inspection  of ;  obstructed,  3447,  3827. 

interfering  with  ;  misdemeanor,  3445,  3447. 

refusal  to  furnish  samples  for  analysis ;  misdemeanor,  3445,  3447. 
misbranding ;  misdemeanor,  3444. 
oleomargarine ;  defined,  .3828. 
sale  of;  .adulterated,  misdemeanor.  3444. 

butterine,  without  label,  3828. 

concentrated  feeding  stuffs,  without  being  inspected,  3807. 

fish,  preserved  or  fumigated,  as  fresh  :  misdemeanor,  3444. 

meat  of  diseased  animal ;  misdemeanor,  3442. 

misbranded ;  misdemeanor,  3444. 

oleomargarine,  without  label,  3828. 

oysters,  preserved,  as  fresh ;  misdemeanor,  3444. 
not  culled,  misdemeanor,  2392. 

sausage,  adulterated;  misdemeanor.  3444. 
sample  of,  to  inspector  ;  refusal,  a  misdemeanor,  3452. 
seizure  of  concentrated,  when  law  not  complied  with.  3807. 
violating  reguhitiuns  concerning  concentrated:  a  misdemeanor.  .3.807. 
when,  deemed  adulterated,  3444. 

FOOTV^^AYS ; 

established  and  maintained,  how,  2695. 
by  prescription,  when  deemed.  2605. 

FORCIBLE  ENTRY  AND  DETAINER : 

person  entering  on  land  with  strong  hand  ;  misdemeanor.  3670. 


INDEX. 

FORECLOSURE  OF  MORTGAGES  AND  TRUST  DEEDS: 

action  for,  bnrrert.  when,  391. 

execution  stayed  in,  how,  601. 
judgment  in,  to  state  what.  4G9. 
parties  to.  wlio  joined  as,  460. 
subchapter  on  betterments  not  applicable.  660. 
summons  served  by  publication,  when,  442. 
venue  in,   419. 
power  of  sale;  clerk  executes,  when,  266. 

clerk  appoints  person  to  execute,  when,  1037. 
executed  by  agent,  valid.  1035. 

by  personal  representative,  when,  1031. 

former  execution  of  power,  validated,  1032. 
execution  of,  barred,  when,  1044. 

surviving  mortgagee  executes,  where  more  than  one,  10.33. 
sales  :  under  power.s — 

advertisement  641,  1040,  1042. 
cost  of,  641. 

description  of  property  in,  1043. 
time  posted,  041,  1040.  1042. 
luider  order  of  court,  when,  643. 
time  of,  644. 
taxes  added  in  cost  of,  2857. 

FOREIGN  CORPORATIONS : 

certain,  must  file  charter,  etc.,  with  secretary  of  state,  1194. 

failure  to  file;  penalty,  1194. 

fees  to  secretary  of  state.  1194. 
powers  of,  concerning  real  estate.  1193. 
resident  process  agent  of.  required.  1243. 

failure  to  have,  license  revoked,  1243. 

action  for  revocation,  how  process  served,  1243. 
service  of  process  on,  440.  442.  1243.  1448. 
subpoena  duces  tecum  issued  from  justice  on,  when,  1454. 

FOREIGN  STATE: 

fugitives  from,  how  arrested ;  governor's  duty.  3184,  3186. 

laws  and  edicts  of,  how  proven,  1594. 

letters  testamentary,  etc.,  of,  how  certified,  1618. 

wills  or  deeds  in,  how  proven,  1619. 

FORGERY: 

attempting  to  sell  or  utter  forged  paper ;  felony,  3427. 

bank  checks,  state  bonds,  etc.,  counterfeited ;  felony.  3419. 

bank-notes  counterfeited,  or  parts  of.  connected  fraudulentl.y.  felony,  3420. 

connecting  parts  of  Instruments  together  fraudulentl.y,  3420. 

corporation  officer:  fraudulently  issuing  stock,  felony,  .3421. 

transferring  stcK'k  fraudulently  issued ;  felony,  3421. 
counterfeiting  and  uttering  coin  ;  offender  guilty  of,  3422. 
counterfeiting,  generally.     See  Counterfeiting, 
deeds,  wills  and  other  papers  forged  ;  felony,  .3424. 

offering,  in  evidence,  knowing  forged,  felon.v,  .3424. 
names  signed  to  rortain  petitions  without  iiermission,  forgery,  3426. 
negotiable  instruments ;  forgery  renders  inoperative.  2182. 

selling,  knowing  forged ;  felony,  .3425. 
presenting  false  certificate  of  exemption  from  poll  tax.  3101. 
receipts  and  releases ;  forgery  of ;  felony,  3424. 
selling  goods  with  marks,  brands,  etc.,  fraudulently,  3850. 

judgments,  notes,  etc.,  knowing  forged;  felony,  342.5. 
uttering  forged  paper,  felony,  3427. 


INDEX. 

FORMS : 

ndniinisti'iition  ;  application  for  letters  of,  2G,  36. 
advertisement  for  creditors,  39,  107,  108. 
inventory,  42. 
letters  of,  20,  36. 
adoption  of  minor  children ;  petition  before  clerk,  174. 
advertisements  of  sales,  641,  1042,  1043. 
affidavit ;  proving  debt  against  decedent's  estate,  91. 
in  action  for  alimony,  1566,  1563. 

for  divorce,  1503. 
to  secure  continuance  of  cause,  530-532. 

order  in  claim  and  delivery,  791,  1496  (17). 
order  of  arrest,  729,  1490  (17). 
proceeding  suisplemental  to  execution,  668. 
removal  of  causes,  425-428,  1455. 
warrant  of  attacbmeut,  7.59,  1496  (3-5). 
agricultural  lien  in  certain  counties.  2055. 
answer  must  contain  what,  479,  481,  482,  483. 
appeal;  notice  of,  and  return,  in  justice's  court,  1496  (39,  40). 
transcript  to  supreme  court,  592. 
vmdertaking  to  stay  execution  on,  598-602; 
apprentic-e's  indenture,  197,  198. 
arrest,  order  for,  in  civil  actions,  731,  1496  (19). 
banks ;  certificate  of  incorporation,  222. 

reports  to  corporation  commission,  244.  

bill  of  exchange,  2276. 
bonds,  fiduciary ;  administration,  319,  320. 
guardian,  321,  323,  1778. 
official :  county  officers,  295-306,  1401. 
municipal  officers,  2940. 
pilots.  307. 

state  officers,  287-294. 
other  than  fiduciary  and  official.     See  Bonds, 
chattel  mortgage,  short  form  of.  1039. 
clerk  of  court,  mortgage  of,  in  lieu  of  bond,  268. 
commitment  to  prison,  3230. 

complaint ;  contains  what,  282,  467,  468,  501,  625,  831,  1384,  14.59,  3106. 
contempt;  record  of  conviction  in  magistrate's  court,  1496  (48). 

warrant  of  commitment,  1496  (49). 
conveyances;  adjudication  and  order  of  registration,  1001,  1006,  1007. 
acknowledgment  by  grantor,  1002. 
corporate ;  probate  of,  1005. 
private  examination  of  wife,  952-958,  1003,  1004. 
corporations ;  certificate  of  incorporation,  1137. 
certificate  of  stock,  1159. 
conveyance  of ;  probated,  1005. 
costs :  bill  of ;  in  cases  tried  in  county  other  than  of  offense,  1285. 

how  generally  made  up,  1256,  1258,  1301,  1306. 
county  exhibit  of  receipts  and  disbursements,  13S8. 
county  official's  annual  report  to  commissioner,  1380. 
creditor's  claim  against  assignor  filed  with  clerk.  972. 
deed  to  equity  of  redemption  sold  under  execution,  631. 
demurrer:  to  complaint  in  justice's  court,  1496  (.35). 
to  answer,  1496  (36). 
judgment  upon  demurrer.  1496  (37). 
deposition,  notice  of  taking,  1652. 
dower,  application  for,  ,3088. 
ejectment  of  tenant  by  landlord,  2011. 
entry  of  land,  1707. 


INDEX. 

FOHMii— continued :  1* 

execution;  generally,  616,  622-624,  149G  (40). 

agaiust  corporations,  1212. 

married  women,  617. 

tbe  person.  625. 

jtersonal  representatives,  126. 

attachment  proceedings,  1496   (47). 

delivery  of  specific  property,  627. 

levy  of.  on  real  estate.  692. 

piircbase  money  on  land,  627. 
free  trader ;  writing  registered,  2112. 
garnishee;  order  to.  to  appear.  1496  (12). 

attachment  to  enforce  order,  1496  (13). 
garnishment  for  taxes,  2880. 
guardianship ;  letters  of,  1773. 

bond  given  before  letters  issued,  1778. 
habeas  corpus ;  ajipllcation  for  writ  of,  1825,  18.57. 

return  of  writ,  1831. 
homestead  and  personal  property  exemption  allotted,  689.  692. 
hunting  license  to  nonresident,  1805.  1872. 
indenture:  apprenticing  ■minor  to  learn  trade,  204. 

when  court  binds  involuntarily.  194. 
indictment.     See  Indictment, 
insolvent  debtors  petition,  1916,  1922,  1930. 
issues,  549. 
judgment :  against  garnishee  in  attachment.  779,  780,  783. 

confession  of,  581,  582. 

for  costs ;  clerii  inserts,  what,  in  entry  of  judgment  for,  1255. 
damages  for  waste,  858. 
purchase  money  of  land,  627. 

in  claim  and  delivery  proceedings,  570. 

of  clerk,  against  personal  representative,  124. 

roll.  572. 

tender  of.  in  justice's  court,  1496  (43-45). 
acceptance,  1496  (44,  45). 

that  corporation  forfeit  franchise,  1209,  1210. 

upon  demurrer  in  justice's  court.  1496  (37). 
juror;  summons  against  defaulting,  to  show  cause,  1496  (34). 
justice's  court  uses  what.     See  Courts.  .Justices', 
landlord  and  tenant:  summary  ejectment  of  tenant,  2011. 
letters  of  administration,  testamentary,  and  of  collection.  36. 
lieu  ;  short  form  of  agricultural  lien,  2055. 
liquor  license,  2066. 
lis  pendens,  notice  of,  400. 
local  option  election,  order  for.  2fl69. 
marriage  license.  2089. 

record  of.  2091. 
married  women  ;  private  examination  of,  952-958.  100:!.  1004. 
mills ;  report  of  commissioners  to  condemn  site.  2126. 
mortgage  given  in  lieu  of  bond,  265.  206. 
negotiable  instrument.  2151. 

notice:  to  coi-porate  directors  and  stockholders  to  meet  to  decide  as  to  dis- 
solution, no.'i. 

to  defendant  and  sureties,  of  judgment  nisi.  .3217,  321S. 
oaths  prescrilied  for  certain  persons.     See  Oaths, 
order  for  sale  of  land  for  assets,  80. 

for  discharge  of  insolvent  debtor.  I:l3.'f. 
oyster  beds ;  grants  foi-.  2378,  2382. 
oysters,  license  to  catch.  2409. 
partition  of  land  ;  commissioners  report.  2404. 
partnership  ;  certificate  of  special,  252.3. 

1272 


INDEX. 

FORMS — continued: 

petition :  for  proeessioniug  lancl,  32(J,  32S. 

for  condemnation  of  land,  2580. 
sale  of  land  for  assets,  77. 
pleadings  in  civil  actions,  487,  488. 
promissory  note,  2334. 

protest  of  bill  or  check  when  dishonored,  2303. 
publication  of  plaintiff  in  attachment,  jnstice"s  court,  1496  (1(5). 
railroads ;  certitieate  of  incorporation,  2548. 

petition  of,  to  condemn  laud  for  right  of  way,  2580. 
report  of  commissioners,  2586. 
recognizance  to  keep  the  peace,  3170. 
referee's  report  to  court,  525. 

remitter,  to  bring  action  within  justice's  jurisdiction,  1421,  1406  (41). 
reply,  485. 

report  of  commissioners  in  condemnation  proceedings,  2586. 
restoration  to  citizenship,  2675. 
search  warrant,  3163,  3164. 

solicitor's  certificate  to  clerk  upon  discharging  witness,  1305. 
subpoena  to  appear  before  corporation  commission.  1070. 

before  justice.  1496  (26-28).' 
summons,  4.30.  431.  1496  (1,  2,  34). 

in  special  proceedings,  712. 

in  garnishment.  779. 

served  by  publication,  443.  .    . 

tax  list,  indorsement  on.  2850. 

tax  sales  of  realty  ;  advertisement,  2890. 

certificate  to  purchaser,  2899. 

notice  of  purchaser  to  delinquent,  2903. 

sheriff's  deed  to  purchaser,  2906. 
timlier  trademark,  notice  of,  .3024. 
undertaking;  in  arrest  and  bail,  730,  738,  741,  1496  (18,  20-25). 

.•ippeal  to  supreme  court,  593,  594,  001.  603. 

attachment.  76.3.  773,  775,  785.  1496  (6.  14.  15). 

bastardy :  putative  father's,  259. 

before  corporation  commission,  1072,  1078. 

claim  and  delivery.  793,  795,  800. 

defendant's,  in  action  to  try  title  to  office,  835,  842. 
to  try  title  to  land,  4.53. 

indemnifying  sheriff,  785. 

injunction  proceedings.  817. 

receiver's,  before  entering  upon  duties.  849.  1222. 

staying  execution.  598-603. 
venire  in  justice's  court.  1496  (31). 
verification  of  pleadings,  489-493. 
warrant:  for  ajiprehension  of  person  charged  with  crimp.  31.5S. 

of  attachment,  76.5.  1496  (7). 

indorsement  on.  of  sheriff's  return,  1496  (8,  9). 

notice  of  levy  on  intangible  property,  1496  (11). 

order  directing  sale  of  perishable  property,  1496  (10). 
widow's  year's  allowance ;  complaint  for.  3106. 
will.  3113. 

probate  of,  3127. 

application  for,  3125. 
witness:  proceedings  against  defaulting,  before  justice.  1496  (.30). 

FRAUD : 

action  for.  by  state,  to  annul  patent,  1750. 

attorney  at  law  practicing,  liable  in  double  damages,  215. 

blackmailing,  felony,  .3428. 

contractor,  defrauding  minor  of  wages,  etc.,  3428a. 

conveyance,  fraudulent.     See  Fraudulent  Conveyances. 

1273 


INDEX. 

FRAUD — continued: 

counterfeiting  coin,  etc.     See  Counterfeiting. 

disposing  of  mortgaged  property  to  defraud  creditors.  3435. 

certain  evidence  jirima  facie  proof,  3435. 
embezzlement.     See  Embezzlement, 
entering  horse  for  races  out  of  its  class,  felony,  3429. 
false  pretenses.     See  False  Pretense, 
forgery  of  instruments,  bank-notes,  etc.     See  Forgery, 
insolvent  debtor,  aslcing  discharge ;  who  may  suggest,  1919,  1924,  1934. 

fraud  shown,  effect,  192S. 

issue  of  fraud  made  up,  1927. 
insurance   agent   making   false   statements   to   defraud   company ;    misde- 
meanor, 3487. 

obtaining  premium  by  false  representations :  misdemeanor,  3486. 
intent  to  defraud,  indictment  for ;  substance  of,  3253. 
limitation,  statute  of,  bars  action  for  relief  for,  395  (9). 

begins  to  run  from  what  time,  395  (9). 
negotiable  instruments  secured  by.  title  void,  when.  2204,  2205. 
person  doing  business  as  merchant  or  trader  must  show  interest,  when.  2118. 
person  removing  debtor  to  defraud  creditor,  liable  as  debtor,  1939. 
private  examination  of  wife  procured  by  fraud ;  effect  of,  95(5. 
secreting  property  to  hinder  enforcement  of  lien,  felony.  3436. 
signatiH'e  of  person  obtained  by,  a  felony,  3433. 
state  defrauded ;  counsel  of  prisoner  made  to  testify,  when,  1620. 
tax  sale ;  fraud  sho^TO  ;  effect,  2909. 
trademarks ;  registering  fraudulently,  .3018. 

using,  unlawfully,  3019,  3020. 
venue  of  action  for,  1748. 

FRAUDS,  STATUTE  OF : 

administration,  etc.,  not  surety  for  estate  unless  by  writings,  974. 

a.Lcrii  ultural  liens  must  be  written,  2052. 

bankrupt  debt,  promise  to  revive,  must  be  in  writing,  978. 

certain  contracts  between  husband  and  wife  must  be  written,  2107. 

Cherokee  Indian ;  certain  contracts  with,  must  be  written,  975. 

contracts  of  suretyship  must  be  written,  974. 

liquors;  contract  for  over  .flO  worth  must  be  written,  977. 

revival  of  debt  barred  by  statute  of  limitation,  must  be  written,  371. 

sale  or  lease  of  land  must  be  written,  when,  97<'>. 

FRAUDULENT  CONVEYANCES : 

bona  tide  conveyances  for  value  valid,  even  tliough  person  indebted,  902,  964. 

conveyances  by  railroads  void  as  to  rights  of  action  for  tort,  1130. 

decedent's,  of  personalty,  attacked  by  representative,  50. 

decedent's,  of  realty,  attacked,  72. 

gifts  of  property,  when  person  indebted,  evidence  of  fraud,  962. 

heirs,  within  two  years  of  letters  granted,  void  as  to  creditors,  70. 

innocent  purchasers  for  value  protected  against  illegal  consideration.  905. 

marriage  .settlements  void  as  to  creditors,  9G3. 

no  defense  that  only  homestead  in  value  is  conveyed.  9ii0. 

persons  removing  debtors  to  defraud  creditors,  liable  as  debtor,  1939. 

purchasers  of  land  fraudulently  conveyed  entitled  to  what  remedy,  966. 

third  persons ;  effect  of  .iudgment  setting  aside,  on,  .50. 

void  as  to  creditors,  900. 

purchasers,  !X>1. 

taxes,  2880. 

FREE  TRADER : 

abandoned  wife  deemed,  when.  2117. 
allowed  to  malce  contracts,  etc.,  2094,  2113. 
evidenced  by  copy  of  writing  making,  2114. 

1274 


INDEX. 

FREE  TRADER — continued: 

married  woman  becomes,  how,  2112. 
from  what  date,  2113. 
when  and  how  ended,  2115. 
publioation,  2115. 
effect  of,  2115. 
what  married  women  are  deemed  free  traders,  2116,  2117,  2118. 

FREIGHT :     See  Express  Companies  ;  Railroads. 

FREIGHT  RATES  :     See  Corporation  Commission. 

FUGITIVES  FROM  JUSTICE: 

expense  of  bringing  fugitive  from  this  state  back,  paid,  3189. 

from  another  state,  how  arrested  and  held,  3184. 

governor  must  inform  governor  of  state  of  fugitive  of  his  arrest,  3186. 

justice's  duty  as  to  keeping  records  and  transmitting  to  governor,  3185. 

outlawed,  how,  3183. 

reward  for,  offered  by  governor,  3188. 

surrendered  on  order  of  governor,  3187. 

FUTURES,  DEALING  IN : 

contracts  for  futures  made  in  another  state  or  with  agent  of  nonresident, 

misdemeanor,  3824. 
defined  and  punishment  prescribed,  3823,  3824. 
person  keeping  office  for  sale  of  futures ;  misdemeanor,  3825. 
procedure  to  apprehend  offender,  3826. 
evidence  necessary,  1690,  3826. 

GAMBLING : 

allowing,  where  liquor  sold ;  misdemeanor,  3716. 
betting  on  prize  fight ;  felony,  3707. 

on  elections,  3384. 
defined  and  punishment  prescribed,  3715. 
evidence :  gambler  testifying  not  incriminated,  1637,  1688. 
faro-banks,  conducting,  misdemeanor,  3717. 
futures,  dealing  in,  3823-3826.     See  Futures,  Dealing  in. 
gambler  testifying,  evidence  not  used  against  him,  1688. 
gaming  tables ;  allowed  on  premises ;  misdemeanor,  3719. 

destroyed  by  certain  officers,  3720. 

justice's  duty  to  discover,  etc.,  3721. 

keeping,  3718. 

opposing  destruction  of ;  misdemeanor,  3723. 

playing  at ;  misdemeanor,  3718. 
lotteries.     See  Lotteries. 

money  or  other  thing  exhibited  for  purpose  of,  seized,  3722. 
municipal  officers  charged  with  certain  duties  as  to,  3716. 
police  falling  to  execute  laws  as  to ;  penalty,  3716. 
tavern-keeper  allowing,  on  premises,  3716. 

GAME  BIRDS : 

defined,  1875.     See  Birds. 

GAME  WARDEN : 

appointed,  how,  1867. 

badge  of,  1868. 

bond  of,  1868. 

birds  seized  by,  sold,  1870. 

constables,  when,  1868. 

duties  of,  1869. 


INDEX. 

GAME  WAliDEN—coiitwued: 
outh  of,  1S(;S. 

fee  for  recordiug.  18(iS. 
l)()\vers  of.  1869. 

in  Currituck  county,  1869. 

to  search  vessels,  24.32. 

GAMING  CONTUACTS : 

contracts  of  wagering,  etc..  void.  KJST. 

loans  in  consideration  of,  void,  1687. 

security  for,  void,  1687. 
future  delivery  contracts  void,  wben,  1689,  1690. 
futures,  dealing  in,  3S2;!-.3S2().     See  Futures.  Dealing  in. 

no  action  allowed  as  to.  1C80. 

proof  as  to,  1691. 
gambling.     See  Gambling, 
invalidity  of,  pleaded,  shifts  burden  of  proof,  1691. 

idea  and  proof  not  competent  in  criminal  actions,  1691. 
lotteries.     See  Lotteries. 

wagers,  bets  or  stakes  made  as  to  race,  unlawfully.  1687. 
witnesses  as  to ;  players  and  betters  competent.  1688. 

confession  or  testimony  of  betters  not  incriminating.  1688. 

GARNISHMENT : 

attaching  creditor  garnishees,  bow,  779-7So.     See  Attachment, 
corporation  failing  to  pay  tax.  garnisheed,  2881. 
sheriff  garnishees  for  poll  tax.  when  and  how,  2SS0. 

GAS  COMPANIES : 

maliciously  injuring  plant  of;  misdemeanor,  .3671. 

may  supply  electric  lights.  1132. 

rights  of  way  for  pipes,  etc.,  granted  over  streets,  1133. 

tampering  with  plant,  fixtures,  pipes,  etc..  of.  misdemeanor,  36G6. 

GATES : 

across  cartways;  leaving  open  or  injuring;  penalty,  2694. 
leaving  open  or  injuring,  across  public  roads ;  penalty.  3781. 
permission  for,  across  highways,  how  secured,  2711. 
stock-law  gate;  injuring  or  leaving  ojien.  inisdenieanor.  3411. 

GENERAL  ASSEMBLY:     See  Volume  II. 

bills  creating  private  corporations,  etc.,  tax  first  paid,  1235. 

clerks  and  doorkeepers  of;  compensation  of.  2730,  2732,  2734. 

compensalion  of  membcs  of,  2729. 

copyists  of  bills  of;  compensation  of,  2731. 

election  of  justices  of  the  peace  by,  1439.  1411. 

employees'  account  for  compensation  audited,  273.". 

member  of ;  accepting  bribe,  consequence.  3.570. 

names  of  persons  can  not  be  altered  by.  2146. 

offering  bribe  to  member  of,  felony,  3569. 

statutes,  resolutions,  etc..  read  in  evidence  from  ))rinted  books,  1592. 

swearing  falsely  before  committee  of;  perjury,  3611. 

witness  refusing  to  testify  before  committee  of,  penalty,  3692. 

(ilOOLOCJICAL  BOARD:     Sec  Volume  II. 
<'()miiensation  of  members,  27."i7. 


1276 


INDEX. 

GIFTS : 

by  will ;  effect,  3143,  3144. 

certain  parol ;  of  land  to  slaves,  validated,  when,  949. 

deeds  of ;  certain  ones  must  be  proven  and  registered,  896. 

evidence  of  fraud,  when,  962. 

general,  by  will,  includes  what,  3143. 

religious  societies  take,  how,  2672. 

GINHOUSE  : 

burning  of,  wilfully  and  maliciously,  a  felony,  3341. 

GINSENG : 

digging,  between  certain  dates :  misdemeanor,  3714. 
taking  from  land  of  another,  where  fenced ;  felony,  3502. 

GOVERNOR  :     See  Volume  II. 

appears  and  answers  as  to  claims  against  state,  when,  1538. 
Audubon  society ;  governor  appoints  treasurer  and  game  wardens.  18()7. 

removes  from  office,  when,  1867. 
commissioners  of  affidavits  appointed  by,  926. 
corporation  commission's  report  printed  by  order  of,  1117. 
death  sentence ;  execution  of,  ordered  by,  when,  3284. 
dredging  for  oysters  suspended  by,  2414. 
fills  vacancy  in  office  of  eoi-poration  commission,  1057.. 
fugitives  from  justice ;  duty  as  to,  31S6-3189.     See  Fugitives  from  .Justice, 
gives  permission  for  .judges  to  exchange  courts,  1511. 
grants :  signed  by,  1729.  2378. 

seal  to,  lost,  replaced  by,  1740. 
justice  of  peace ;  governor  appoints,  when,  1411. 
may  suspend  corporation  commissioner,  when,  1058. 
notaries  public  appointed  by,  2347. 
oyster  commissioner  and  assistant  appointed  by,  2403. 

removed  by,  2403. 
railroad  police  appointed  by,  when,  2605,  2606. 
requisition  of,  made  for  railroad  president,  when,  3760. 
salary  of,  2736. 
special  term  of  court  ordered  by,  1512. 

county  commissioners  notified,  1513. 

judge  to  hold,  appointed,  1511. 
state  standard  keeper  appointed  by,  3068. 

GOVERNOR'S  EXECUTIVE  CLERK: 
salary  of,  2738. 

GOVERNOR'S  PRIV.\TE  SECRETAEY  :     See  Volume  II. 
salary  and  fees  of,  2737. 

GRACE,  DAYS  OF : 

allowed  when,  and  on  what  instruments,  2235. 

GRADE  CROSSINGS  :     See  Railroads. 

GRAND  JURY : 

drawn  how,  1969. 

duty  of,  to  visit  jail,  workhouse,  home,  etc.,  1972. 
to  report  condition  of  jail,  etc.,  to  court,  1972. 
examination  on  preliminary  hearing  used  as  evidence  before,  o'iO.'i. 
exceptions  to  jurors,  when  taken,  1970. 
foreman  of,  administers  oaths,  1971. 
guardians'  management  of  estates  inquired  into  by.  1810. 

1277 


INDEX. 

GRxVND  JURY— vcmtinued: 

iiidictmeut  by,  3242-3255.     See  Indictment. 

names  of  witnesses  examined  indorsed  on,  1971. 

returned  in  open  court,  liow,  3242. 
liquor  dealers,  list  of,  furnished  to,  2827. 

list  of  cases  disposed  of  by  .iustiee,  grand  jury  considers,  3261. 
none  drawn  at  civil  terms  of  court,  1508. 
oaths  of,  2360. 

orphans ;  list  of,  without  guardian,  reported  by,  ISIO. 
presentment  by,  3240-3241. 

names  of  witnesses  and  gi-and  jurors  indorsed  on.  3241. 
witnesses  before,  entitled  to  fees,  when,  1302. 

GRANTS : 

as  evidence;  copies  used,  when,  1596-1601,  1610-1613.     See  Evidence, 
assignee  of  entry  can  obtain  ;  proviso,  1729. 
certain ;  issued  since  JIarch  6,  1893,  void,  when,  1G99. 
are  not  color  of  title,  1699. 
issued  on  entries  in  wrong  county,  validated.  1737. 
claimant ;  dying,  to  whom  grant  issued,  1730. 
failing  to  pay  price,  issued  to  another,  1733. 
repaid  what  he  has  paid,  1733. 
copy  of,  can  be  registered,  1729. 

can  be  used  as  evidence,  1596-1601,  1610-1613.     See  Evidence, 
correcting  errors  in,  1741,  1742. 
county  line  changed ;  effect  on,  1736. 
entries  ;  how  made.  1707,  1708. 

action  to  sustain,  barred  when,  385. 
claimant  produces  signed  description  of  land,  1707. 
enti-y-taker  endorses  and  copies  in  book,  1708. 
entry-taker  makes,  for  himself,  how,  1711. 
in  wrong  county,  valid  when,  1737. 
irregular,  validated,  1743. 
land  subject  to,  what,  1693-1096. 

enti'y  of  land  not  subject  to  entry,  void,  1G99. 
lapsed  ;  subsequent  entry  valid,  1710. 

same  person  can  not  enter  for  a  year,  1712. 
notice  of,  posted  for  thirty  days,  where.  1708. 

advertised  in  newspaper,  where,  1708. 
oyster  beds,  2371-2378. 
payment  of  price  for,  when,  1731. 
amount,  1733. 
to  whom,  1732. 
person  already  having  erected  wharves,   1G90. 
phosphate  beds,  1751. 
protest  to,  filed  where  and  by  whom,  1709. 

procedure  on  filing,  1709.  1713. 
right  to  make,  who  has,  1692. 

subsequent  entry  may  take  what  first  entry  does  not,  1715. 
void ;  unless  paid  for  in  certain  time,  1731. 
warrant  for  survey  of,  issued  how,  1713,  1714. 
entry-taker,  appointment,  etc.,  1700-1706.     See  Entry-taker, 
duty  of.  to  indorse,  copy  and  advertise  euti'y,  1708. 
to  issue  warrant  for  survey,  when,  1713. 
warrant  lost,  duplicated,  1714. 
errors  in  ;  corrected  how  ;  procedure,  1741. 

notice  to  adverse  claimants  required,  when,  1742. 
fisheries ;  prior  right  to,  in  whom,  1698,  2400. 

person  acquiring  land  for  wharf  may  establish,  1697. 
issuance  of;  auditor's  certificate  of  payment  necessary,  1728. 
must  be  numbered  and  plot  be  attached.  1734,  1735. 
not  allowed,  when  land  not  suliject  to  enti-j-,  1727. 
when,  how,  and  to  whom,  1729,  2596. 

1278 


INDEX. 

GRANTS — continued  : 

none  for  lauds  of  board  of  education,  when,  1727. 
oyster  beds  entered  and  granted  bow,  2370-2382. 
payment  of  amount,  1733,  1690. 
to  whom,  1732. 
within  what  time.  1731. 
phosphate  beds  granted,  1751-1757.     See  Phosphate  Beds, 
plot  attached  to,  173-1. 

railroad  right  of  way  granted  by  state,  when,  2596. 
registration  of ;  required  in  two  years,  1729. 
number  of  survey  included  in,  2662. 
time  for,  extended,  1747. 
when  county  line  changed,  1736. 
seal  to,  lost;  how  replaced,  1740. 

secretary  of  state  issues,  when,  how  and  to  whom,  1728,  1729. 
corrects  grants,  bow,  1738-1742. 
plots  filed  by,  1734. 
will  not  issue,  when,  1727. 
surveys  of  entries,  1713-1721. 
chainbearers  sworn,  1717. 

must  actually  measure  land,  1717. 
surveyor  administers  oath  to,  1717. 
county  surveyor  makes,  1716. 

may  appoint  deputies ;  liable  for  their  acts,  1720. 
special  surveyor  appointed,  when,  1719. 
when  county  surveyor  interested,  who  acts,  1721. 
errors  in,  corrected,  how,  1738,  1739. 
made,  how,  1716. 

warrants  for  surveys  issued  to  surveyor,  how,  1713. 
number  of,  to  be  placed  in  grant,  1735. 
order  in  which  entries  surveyed,  1715. 
plots  of,  made  by  county  surveyor,  1710. 
errors  in,  how  corrected,  1736,  1739. 

statute  of  limitation  bars,  when,  1738. 
made  by  special  surveyor,  good,  when,  1719. 
ti'ansmitted  to  secretary  of  state,  1718. 
recorded :  by  former  surveyor,  when,  1725. 

in  Boolv  of  Surveys,  1722.  1723. 
resurvey  to  correct  errors ;  allowed,  when,  1739. 
warrant  for,  contains  what,  1713. 
swamp  lands  defined,  1695. 

what  may  be  entered,  1694. 
vacating ;  action  for,  brought  when,  1748,  1750. 
complaint  states  what,  1748,  1750. 
judgment,  1749. 

recorded  in  secretary  of  state's  office,  1749. 
venue,  1748. 
validated ;  when  entry  in  wrong  county,  1737. 
when  entry  irregular,  1743. 
issued  prior  to  1820,  1745. 
issued  to  surveyors  prior  to  1829,  1746. 
void,  when,  1699,  1715. 
wharves  ;  entiy  of  land  for ;  regulations,  1696. 

person  already  having  built,  entitled  to  enter,  1696. 
price  of  land  for,  1096. 

title  to  lands  for,  acquired ;  fishery  established,  1007. 
withheld  by  secretary  of  state,  when,  1727. 

iGtRAVEYARDS : 

can  not  be  condemned  for  railroad  right  of  way,  2578. 
defacing  or  removing  monuments,  etc.,  in ;  misdemeanor,  3680. 
must  not  be  established  near  public  water  supply,  3053. 

1279 


INDEX. 

GUARDIAN— cwi  t  ii}iic(l  : 
sales  by — continued. 

proceeds  held  on  same  trust  as  property.  1709. 

to  pay  ward's  debts,  when.  1800. 

proceeds  assets  for  creditors,  ISill. 
settlements;  record  of,  kept  by  clerk,  915  (13). 

final,  made  when,  1807. 
solicitor  prosecutes  action  against  for  ward,  when,  1812,  1815. 
stock  in  corporation  not  fully  paid,  no  liability  attaching  to,  1162. 
taxes  on  ward's  lands  must  be  paid  by,  2802. 
takes  charge  of  estate,  1780. 
timber  trees  sold  by,  how,  1790. 

title  to  railroad  right  of  way  secured  from  ward,  how,  2590. 
year's  allowance  to  ward  paid  guardian,  when,  3094. 

HABEAS  CORPUS,  WRIT  OF  :  , 

ad  testificandum,  18.55-1801.     See  Witnesses, 
application  for  writ  of,  1821-1820. 

by  whom,  1821,  1823. 

contains  what.  1825. 

must  be  made  in  writing.  1824. 

to  whom  addressed,  1824. 
children,  custody  of,  determined  by,  when,  185.3,  1854. 
compensation  of  sheriff  for  producing  prisoner,  2777. 
concealing  party  named  in  writ  of :  misdemeanor,  3583. 
costs  adjudged,  how,  in  proceedings  for,  1208  (3). 
denied,  when,  1822. 
disobeyed ;  sheriff  attached ;  writ  to  coroner,  1836. 

precept  to  bring  up  party  detained,  1837. 
form  of.  1829. 

lack  of,  no  ground  for  disobeying,  1829. 
granted,  when.  1827. 

first  writ  disobeyed,  another  issued,  1837. 

refusal  of  .judge  to  grant ;  penalty,  1828. 

when  no  application,  1826. 
hearing ;  facts  e.xamined  into ;  proofs  heard  sunnnarily,  184G. 

bail  allowed,  when,  1849,  18.50. 

determination  may  be  in  absence  of  prisoner.  1851. 

prisoner  ;  discharged  when,  1847. 

remanded  to  prison,  when,  1848,  1840,  18.50. 
judge :  duty  of,  to  issue  without  application,  when,  1820. 

conniving  at  insuflii-ient  return :  penalty,  1839. 

refusal  of,  to  grant ;  penalty,  1828. 

to  issue  attachment  for  disobedience;  penalty,  1S.'?5. 

precept  to  bring  prisoner  detained ;  penalty,  1838. 
notice  of  place  and  time  of  hearing  to  adverse  party,  1843. 

to  solicitor,  1844. 
obedience  to;  compelled  by  attachment,  1834. 

attachment  served  how,  when  against  sheriff,  1830. 
order  of  discharge,  disobeyed  :  ]irocedure,  1841. 

party  disobeying  liable,  1841. 

obeyed ;  party  obeying  not  liable  civilly.  1842. 
prisoner  discharged  ;  iienalty  for  again  imprisoning,  18.52. 
refusal  of  judge  to  grant:  penalty.  1^28. 

to  issue  attachment  for  disobedienot ;  penalty,  18.35. 
returnable,  when,  1830. 
return  of;  1830. 

contains  what,  1831. 

officer  making  false;  niisdonieanor,  3.5S2. 

making  no  return,  eli'.  :  penalt.v,  3507. 

prisoner  produced,  when,  18.32. 

1282 


INDEX. 

HABEAS  CORPUS,  WKIT  OV—continaed: 

right  to;  every  person  restrained  of  liberty  has,  1819.  1821. 

.shall  never  be  suspended,  1820. 
served,  how,  and  by  whom,  1833. 

power  of  the  county  to  aid  service,  1840. 
witnesses  subpcenaed  to  testify  at  hearing,  184.5. 

HALF  BLOOD: 

collateral  relations  of,  inherit  equally,  15.56  (r.  6). 
counted  how,  as  to  prohibited  marriages.  2084. 

HANDWRITING  : 

holograph  will  probated  by  proof  of,  how,  3113. 
probate  of  conveyance ;  by  proving  maker's,  when,  998. 

by  proving  witnesses"  handwriting ;  exception,  997. 
probates  by  proving,  of  maker  refusing  to  acknowledge,  validated,  1026. 
signatures  must  be  in,  2831   (10). 
wills  probated  by  proof  of,  of  witnesses,  when,  3127. 

holograph  will  probated  by  proof  of  testator's,  how,  3113,  3127. 

HANGINGS : 

day  for,  in  cases  appealed,  set  by  governor,  3284. 

must  be  private,  3285. 

\\itnesses,  etc.,  number  of,  allowed  present  at,  3286.  - 

HARBORING  : 

seamen  who  have  imlawfuUy  deserted  vessel,  misdemeanor,  3550. 
servant  who  has  left  master  unlawfully,  misdemeanor,  3365. 

HARBORMASTER  : 

interfering  with,  of  Wilmington,  misdemeanor.  3552. 

HEALTH:     See  Public  Health;  also.  Volume  II. 

HEIRS: 

adopted  child  an  heir,  when,  177. 

assign  dower,  when,  3087,  3088. 

bastard  child  legitimated,  heir  to  father,  263,  264. 

commences  new  action,  when,  after  ancestor  nonsuited,  370. 

contribute  to  after-born  child,  138-143. 

contribution  between,  and  devisees,  legatees,  etc.,  58,  86. 

conveyance  by,  in  two  years  of  letters  granted  ;  effect,  70. 

conveyances  deemed  in  fee,  whether  word  "heirs"  used  or  not,  946. 

de.vise  deemed  in  fee  without  word  "heir,"  when,  3138. 

entry  by  ancestor,  grant  made  to,  1730. 

inherit ;  by  lineal  descent,  1536. 

certain  negro  children  born  before  .Jan.,  1868,  inherit  bow,  1556  (r.  13). 

collateral  heirs  inherit  when  no  lineal,  1.5.56  (rr.  4,  5). 

females  inherit  with  males,  1.556  (r.  2). 

from  illegitimate  children,  1556  (r.  10). 

half  blood  inherit  equally  with  whole  blood,  15.56  (r.  6). 

illegitimate  children  inherit  from  mother,  1556  (r.  9). 

legitimated,  inherit  from  father,  264. 

lineal  descendants  represent  ancestor,  1556  (r.  3). 

parent  inherits  from  child,  15.56  (rr.  6,  10). 

unborn  children  inherit  how,  1556   (r.  7). 

widow  inherits  from  husband,  when,  1556  (r.  8). 
liable  for  debts  of  decedent.  52-58. 
limitations  to.  of  living  person,  consti'ued,  how,  1.583. 
parties  to  proceeding  to  sell  land  for  assets,  74. 

1283 


INDEX. 

HIGHWAYS : 

right  of  way  over ;  granted  to  telegraph,  etc.,  companies,  1571. 

p-antect  to  gas  and  electric  lighting  companies,  1133. 
sti-eets.     See  Streets. 
roads,  cartways,  etc.     See  Roads. 

HINSDALE  ACT : 

demurrer  to  evidence :  sustained ;  appeal,  etc.,  539. 

overruled;  e.xcoption  waived;  evidence  introduced,  539. 

HOGS : 

dead  of  contagious  diseases,  bodies  buried  or  burned,  329S. 

earmark  of,  registered,  3028. 

failing  to  pen,  sick  with  cholera,  misdemeanor,  3297. 

falsely  representing  pedigree  of  breeding;  misdemeanor,  3307. 

quarantine  of  those  with  contagious  diseases,  3297. 

selling,  knowing  to  have  infectious  disease ;  misdemeanor,  3295. 

stray ;  how  taken  uj),  etc.,  2S33. 

taxed  by  towns,  2924. 

HOLIDAYS:     See  Sunday. 

acts  to  be  done  on,  when  may  be  done,  2839. 

dates  of  public,  2838. 

negotiable  instruments  due  on,  paid  when.  2234. 

HOME  FOR  AGED  AND  INFIRM  : 

county  commissioners  provide  for  maintenance  of,  1318  (14),  1327. 

county  poor  maintained,  1328.     See  County  Poor. 

grand  jury  must  visit,  1972. 

how  county  home  and  county  poor  supported,  1329. 

removal  of;  how  accomplished,  1318  (6,  28),  1319. 

site  of;  designated  how  and  by  whom,  1318  (fi.  28),  1319. 

HOMESTEAD : 

allotment  of ;  after  death  of  homesteader,  when,  707. 
keeps  judgments  alive,  685. 
on  execution,  687-694. 

appraisers ;  duty  of,  688. 

conspiring  with  debtor  or  creditor,  liable  civilly,  690. 

liable  criminally,  3585-3586. 
fees  of,  69G. 

oath  of,  administered  by  sheriff,  687. 
property  selected  for  homestead,  688,  693,  700. 
return  of,  689,  709  (1). 

copy  to  county  of  execution,  689. 
filed  and  registered,  689. 
made  to  whom,  689. 
original,  or  copy  of,  evidence,  689. 
set  aside  for  fraud,  when,  702. 
sheriff  summons,  687. 
in  land  held  in  common,  how,  2489. 
on  petition  of  owner,  704,  700  (2). 
advertisement  of  notice  of,  705. 
hearing  on  petition,  when,  705. 
return  excepted  to  ;  procedure,  706. 
conveyed ;  not  exempt  from  execution,  686. 
costs ;  of  allotting  on  petition  of  owner.  1274. 
of  allotting  under  execution,  696,  1274.  1275. 


INDEX. 

HOMESTEAD— con<m!(P(/.- 

exceptloDs  to  ailotiuent;  filed  bow,  699,  706. 
effect  of  filing,  699,  706. 
limitation  on  filing,  099,  706. 
tried  by  jury,  699,  706. 

verdict  of  jury,  700,  706. 

confirming  return  of  appraisers,  702,  706. 

not  set  aside,  702,  706. 
reallotment,  700,  706. 

original  or  copy  of,  evidence,  703. 
registered,  703. 
undertaking  of  objector,  701,  706. 
exemption  from  sale  under  execution,  085. 
fraud,  etc.,  grounds  for  setting  aside  allotment,  702. 
fraudulent  deed ;  no  defense  tbat  only  bomestead  in  value  conveyed,  960. 
judgments  never  barred  after  allotment  of,  685. 
location  of,  selected  by  owner,  088. 
wben  owner  does  not  select,  603. 
wbeu  sufiicient  land  not  contiguous,  700. 
officer  selling  and  failing  to  allot,  liable  civilly,  70S. 

liable  criminally,  3584. 
reallotment  for  increase  of  value ;  procedure,  691. 

appeal  from  clerk  to  judge,  691.  • 

return  of  appraisers,  registered  ;  evidence,  687,  689,  703. 
sheriff's  fees  for  allotting,  2777.  '  " 

undertaking  filed  by  objector  to  allotment,  701. 
what  allowed  as,  685. 

HOMICIDE :     See  Murder  and  Manslaughter. 

HORSES: 

brand  on,  registered,  3028. 

false  representation  of  class,  when  entering  race,  3429. 
pedigree  of  breeding,  falsely  represented ;  misdemeanor,  3307. 
stud ;  exhibiting,  near  religious  meeting,  3705. 

permitting,  to  run  at  large,  3323. 
stealing ;  felony,  3.505. 

temporary  use  of ;  felony,  3509. 

indictment  for,  3505. 
stray ;  how  taken  up,  etc.,  2833. 

HOSPITAL  FOR  INSANE:     See  Volume  II. 

guardian  of  insane  person  in,  appointed,  when,  1891. 
officers,  etc.,  of,  exempt  from  jury  duty,  1980. 

HOTEL:     See  Innkeeper. 

HOUSE  OF  CORRECTION : 

county  commissioners  :  chairman  notifies  governor  of  establishment  of,  1.363. 

fix  compensation  of  oHicers  of,  1368. 

may  establish  and  maintain,  1318  (31),  1319,  1360,  1362. 
directors  of;  compensation  of,  1364. 

duty  with  reference  to  conduct  of  manager,  1366. 
with  reference  to  management  of,  1364. 

number  and  appointment  of,  1364. 

term  of  office,  1365. 
establishment  of ;  by  two  or  more  counties,  1373. 

directors  appointed,  how,  1374. 

general  manager  appointed  :  bond ;  term  of  office,  1375. 
compensation  of.  1375. 

management  of.  1373. 

1285 


HOUSE  OF  CORRECTION— cciii^HUCf/.- 

governor  notified  of  establishment  of,  1.30.3. 

manager  of,  appointed  by  whom ;  term  of  otBce,  1300. 

bond  of,  1306. 

compensation  of.  fixed  by  county  conmiissioners,  1368. 

duty  to  account  for  special  taxes  paid  him.  1301. 

powers  and  duties,  generally,  1306. 

removal  of ;  vacancy  filled,  how,  1300. 

for  misconduct,  temporary  successor  appointed,  1300. 
prisoner  escaiiiug  from,  captured  and  punished,  how,  1370. 
prisoner  sentenced  to,  how  committed,  1309. 
special  tax  levied  for  support  of,  1361. 

paid  to  manager,  1301. 
vacancy  in  board  of  directors,  how  filled,  180.5. 
vagrants  committed  to :  duty  of  sheriff,  1371. 

released  when,  1371. 

HOUSES : 

broken  open  to  prevent  felonies,  when,  3179. 

to  arrest  felon,  3180. 
buildings ;  inspection  of.     See  Buildings  in  Towns, 
burning  d\yelling,  etc. :  for  fraudulent  purpose,  felony,  33-10. 

arson,  punished  with  death,  3335. 

attempt  to  burn  ;  felony,  3330. 
injuring  in  any  way ;  misdemeanor,  3073. 
taking  possession  of  another's,  and  refusing  to  vacate.  3683. 

HUNTING : 

Audubon  society  to  control,  1802-1807.     See  Audulion  Society, 
chasing  deer  with  dogs  in  certain  counties,  3400. 
close  season  for  himting — 

curlew,  1889. 

deer,  1881. 

dove,  1880. 

lark,  1880. 

marsh  hen,  18S9. 

opossum,  1883. 

partridge,  1884. 

pheasant,  1887. 

quail,  1884. 

robin,  1880. 

shore  bird,  1889. 

snipe,  1889. 

squirrel,  1882. 

turkey,  wild,  1885. 

woodcock,  1888. 
club-houses  for  himters ;  license  tax  on,  in  Dare,  1S77. 
Currituck  sound ;  hunting  on,  regulated,  3401. 
deer  by  firelight;  a  misdemeanor  ;  evidence  of  accomplices.  .3402. 

in  Brunswick  county,  3403. 
destroying  nests  or  e.ggs  of  certain  wild  birds;  mi.sdeuieanor,  3404, 
evidence  of  illegal,  in  New  Hanover  county,  3405. 
failing  to  mark  game,  or  marking  falsely;  misdemeanor.  .3470. 
game  birds ;  what  are,  1875. 
game  wardens,  1S08-1870.     See  Game  Warden, 
license;  nonresidents  must  obtain.  1872,  1874,  1.877,  1879,  1880. 

may  take  certain  game  out  of  state.  1.87.3.  1879.  1880. 
nonresidents  hunting  without  license:  misdemeanor,  .3409. 
on  lands  of  another,  without  permission  ;  misdemeanor.  ,3480,  3481. 
otters,  ratiskrats.  minks,  etc.,  liy  nonrcsidcnis  ;  misdemeanor,  3407. 
out  of  season  ;  punishment,  3400. 

1286 


INDEX. 

HUNTING — continued: 

quail  netting  in  certain  eouuties ;  misdemeanor,  3408. 
shipping  certain  birds  out  of  state ;  misdemeanor,  3471. 
Sunday,  witli  dog  or  gun ;  misdemeanor,  2836,  3842. 
trespass  on  lands  in,  not  wilful ;  no  crime,  3677. 
wild  fowl  in  Bnanswick  county,  in  violation  of  restrictions,  3477. 
in  Carteret,  in  violation  of  restrictions ;  misdemeanor.  3473. 
Currituck  in  violation  of  restrictions,  misdemeanor,  3474. 
Dare  county  ;  in  violation  of  restrictions ;  misdemeanor,  1878,  3476. 

without  license ;  misdemeanor,  3475. 
New  Hanover  county  in  violation  of  restrictions ;  misdemeanor,  3477. 
Pamlico  sound,   Hyde  county,   in  violation   of  restrictions ;   misde- 
meanor, 3478. 
on   Sunday   or   at   night,    or   using   any   gun   except   one   fired    from 

shoulder ;  misdemeanor,  3843. 
or  game  birds  with  fire ;  misdemeanor,  3479. 

between  sunset  and  sunrise ;  misdemeanor  ;  exception,  3459. 

HUSBAND : 

abandonment  of  family  ;  misdemeanor,  3355. 

evidence  of,  3356. 
administers  on  wife's  estate,  when,  3,  4. 

barred  from  administering,  when,  7,  9,  1569,  2109,  2111. 
can  not  sell  or  lease  wife's  lands,  without  consent,  2097. 
competent  witness  for  wife  in  criminal  proceedings,  when,  1634. 

in  civil  eases,  1636. 

not  compelled  to  testify  against  wife,  1635. 
contracts  of,  with  wife,  valid,  when,  2108. 

void,  when,  2107. 
conveyances  by ;  without  wife,  only  conveys  his  estate,  954. 

conveys  dower  also  when  mortgage  for  purchase  money,  958. 

may  be  registered,  9.54. 

when  wife  a  lunatic,  conveys  all,  959. 

generally.     See  Conveyances, 
probate  of.     See  Probate, 
death  presumed  after  seven  years  absence  not  heard  from,  3361. 
defends  action  against  wife,  when,  2103. 

discharged  from  defense,  when,  2104. 

pays  cost  of  action,  when,  2104. 
doing  business  In  wife's  name ;  effect,  2118. 
dower,  and  land  in  lieu  of.  not  liable  for  debts  of,  3082. 
dying,  leaving  deceased  wife's  estate  unadministered ;  effect,  4. 
feloniously  slaying  wife  ;  forfeits  rights,  7. 
incompetent  witness  as  to  adultery  of  wife,  1564. 
interest  of,  in  wife's  estate,  3,  4,  2102. 

forfeited,  when,  7,  9.  1569.  2109,  2111. 

not  sold  under  execution,  when,  2097. 
liable  for  using  wife's  separate  savings,  when,  2100. 
living  in  adultery,  forfeits  rights  in  wife's  estate,  2111. 
tenant  by  curtesy  in  wife's  land,  when,  2102. 
wife's  ante-nuptial  debts :  husband  not  liable  for,  2103,  2106. 

torts  ;  jointly  liable  with  wife  for,  2105. 

IDIOTS  :     See  Insane  Persons. 

defend  by  guardian  ad  litem,  400. 

guardian  for,  appointed  by  clerk,  1706,  1890. 

inquisition  as  to ;  procedure,  1890. 

land  of ;  order  for  sale  or  renting  of,  obtained,  how.  1890. 

condemnation  of,  for  railroads :  title  acquired,  2590. 

sold  for  what  purpose;  proceeds  disposed  of,  how.  1897. 
lunatics.     See  Insane  Persons. 

1287 


INDEX. 

IDIOTS — continued: 

may  icilocui  land  sold  for  tax,  when,  2913. 
statute  of  limitations  does  not  bar,  362. 
sue  by  guardian  or  next  friend.  405. 
wife  free  trader  when  husband  an  idiot,  211G. 

IDLE  PERSONS  :     See  Vagrants. 

ILLEGITIMATE  CHILDREN: 

apprenticed  by  mother  or  guardian.  201. 

certain  negro,  born  prior  to  '68,  legitimated,  15.56  (r.  13). 

divorce  does  not  make  legitimate  children  illegitimate,  1569. 

estate  of,  descends,  how.  1550  (r.  10). 

inheritance  of,  1556  (r.  9). 

legitimate  as  between  themselves,  137. 

legitimated  by  father,  203,  264. 

next  of  kin  to  mother,  136. 

who  inherits  from,  1556  (r.  10). 

IMPROVEMENTS,  CLAIM  FOR  :     See  Betterments. 

INCEST : 

defined  and  punishment  prescribed,  3351,  3352. 

INDIAN  :     See  Cherokee  Indians  ;  Croatan  Indians. 

INDICTMENT : 

assault ;  verdict  for  simple,  when  felony  alleged,  3208. 

bank-notes ;  larceny  of,  alleged  in,  how,  3251. 

burglary ;  first  degree  alleged,  verdict  for  second,  3270. 

defects  in ;  certain  ones  do  not  vitiate,  3255. 

embezzlement,  3252. 

false  pretense ;  not  necessary  to  state  who  accused,  defrauded,  etc.,  3432. 

fee  of  clerk  for.  2773. 

horse  stealing  charged  in ;  counts  joined  how,  3505. 

injury  to  stock  ;  owner's  name  not  necessary,  when,  3314. 

injuring  exhibits  at  fairs,  how  alleged.  3668. 

Intent  to  defraud;  3253. 

larceny  and  receiving,  3253. 

manslaughter ;  what  to  contain,  324.5. 

murder ;  how  alleged  in,  3243,  3245. 

first  degree  alleged ;  jury  can  find  second,  etc.,  3271. 
not  quashed  for  want  of  form,  32.54. 

ownership  of  property  in  common,  how  alleged  in.  3"250. 
perjury,  3246,  3'247,  .•?248. 
rape;  what  necessary  to  show  in,  ,36.10. 
returned  by  foreman  except  In  capital  cases,  3242. 
sheriff,  for  allowing  prisoner  to  es<aiie.  3577. 
second  offense ;  how  set  forth  in.  3249. 
stealing  or  obliterating  court  records  and  papers,  3508. 
subornation  of  perjury.  3248. 
substance  of  proceeding  only  set  forth  In,  3243. 
trial  in  superior  court  for  crime  only  on.  3240. 
venue  laid  in,  pi-esumod  to  be  correct,  3239. 
witnesses;  names  of.  examined,  indorsed  on,  1071. 

INDIGENT  ORPHANS  :     See  Apprentice. 

INDORSEMENT:     See  Negotiable  Instruments. 


1288 


INDEX. 

INEBRIATES:     See  Drunkenness, 
defend  by  guardian  ad  litem,  406. 
defined.  1892. 

estate  of,  without  guardian,  managed  bow,  1894. 
inquisition  to  determine  necessity  for  guardian  for,  1890. 

guardian  found  necessary ;  clerli  appoints,  1766,  1890. 
property  of ;  sold  by  order  of  clerk,  when,  1890. 

for  wbat  purpose  sold,  1897. 

proceeds  of  sale ;  disposition  of,  1897. 
reformed ;  proceedings  to  restore  property  to,  1893. 
sue  by  guardian  or  next  friend,  405. 

INFANTS : 

administrator ;  can  not  be,  5. 

adoption  of.  174-181.     See  Adoption  of  Minor  Children. 

apprenticed,  184-206.     See  Apprentice. 

by  court,  190. 

liy  parent  or  guardian,  201. 
children.     See  Child. 
con^•ey  property  held  in  trust,  how,  1036. 
costs  adjudged  against,  as  plaintiff,  who  must  pay,  1276. 
defendant,  defends  by  guardian  ad  litem,  when,  75. 
expense  of  action  against,  how  paid,  407. 
insane  mother's  estate  used  for  benefit  of,  when,  1899. 
judge  approves  all  orders  affecting  property  of,  720,  571. 
limitations,  statute  of,  does  not  affect,  362. 
negotiable  instruments ;  indorsement  by.  2180. 
not  affected  by  validating  of  certain  execution  sales,  646. 
objection  to,  suing,  interposed  by  demurrer,  474. 
orders  and  judgments  affecting  lands  of,  judge  approves,  571,  720. 
proceedings  against  certain,  irregularly  begun,  validated,  441. 
railroad  acquires  title  from,  in  right  of  way,  how,  2590. 
redeem  land  sold  for  taxes,  when,  2913. 
sent  to  orphanage,  when,  184. 
sue  by  guardian  or  next  friend,  405,  1590. 
summons  served  on,  how,  440. 

served  on.  irregularly,  validated.  441. 
taxes  of,  how  collected  by  sheriff,  2801,  2862. 
unborn,  but  in  esse,  take  by  deed.  1590. 

IN  FORMA  PAUPERIS : 
action  brought,  451,  452. 
appeals,  597. 
plaintiff  entitled  to  costs,  when,  1265. 

INHERITANCE:     See  Heirs. 

INJUNCTION ; 

corporations ;  business  of,  suspended  by ;  notice  and  bonds  required,  1205. 
restrained  from  alienating  property  by,  1197. 
from  ultra  vires  acts,  1197. 
corporation  commission  enjoined  from  enforcing  determination  as  to  rates, 

procedure.  1082-1085. 
fee  of  clerk  in  order  of,  2773. 
granted,  when.  806-810,  812. 

after  answer,  on  notice  or  order  to  show  cau-se,  812. 
only  upon  undertaking  being  given,  817. 
judge  having  jurisdiction  to  grant,  814. 
judgment  dissolving,  carries  judgment  for  damages,  818. 
jurisdiction  :  what  judge  has,  to  issue.  814. 
land,  trespass  on,  enjoined  without  alleging  insolvency,  807. 

1289 


INDEX. 

INJUNCTION— cojiimMCfL- 

none,  to  restrain  collection  of  taxes,  2855. 

order ;  returnable  before  one  Judge,  another  hears,  when,  815,  SIG. 

to  show  cause,  when  issued,  813. 

temijorary  restraining  order  pending,  813. 
parties  to  suit  may  agree  as  to  .iudge  to  hear,  816. 
temporary,  issued  when,  806,  813. 
time  consumed  in,  does  not  count  to  bar  action,  368. 
time  for  which  can  be  issued  without  notice,  811. 
timber  trees ;  cutting  allowed,  pending  action  concerning,  when,  809. 

cutting  of,  prevented  by.  808. 

solvent  defendant  restrained  from  cutting,  807. 
transfer  of  property  by  judgment  debtor  prohibited,  when.  673. 
undertaking  required  of  applicant  before  order  issued,  817. 
when  order  issued,  810. 

INNKEEPER : 

allowing  gaming  tables  on  premises ;  misdemeanor,  3716. 
chapter  on,  must  be  posted  in  rooms,  etc.,  1913. 
liability  of ;  for  loss  by  fire,  1912. 

for  loss  of  guest's  baggage,  when,  1910. 

prima  facie  evidence  of  negligence,  what  is,  1910. 
of  valuables,  when,  1911. 
negligence  of  guest  a  defense  to,  1914. 
lien  on  guest's  baggage  for  board  bill.  2037. 
must  furnish  accommodations  to  guests,  1909. 

INNOCENT  PURCHASER  FOR  VALUE : 

decedent's  fraudulent  conveyance  attaclvcd  ;  effect  on,  72. 

lis  pendens  does  not  affect,  when,  402. 

private  e.xamination  of  wife,  procured  by  fraud;  effect  on,  9.56. 

protected  against  unlawful  consideration,  965. 

protected,  even  though  seller  is  indebted,  962,  964. 

INQUEST : 

fee  of  coroner  for  holding,  2775. 

paid  by  county  in  inquest  over  pauper,  2775. 
jurors  at ;  compensation  of,  10.53. 
when  held,  1051,  3797. 

INSANE  PERSONS :     See  Volume  II. 

allowance  to  abandoned  feme  covert  lunatic.  1895. 

assisting,  to  escape  from  hospital ;  misdemeanor,  3694. 

deemed  to  have  pleaded  any  defense,  etc.,  361. 

defend  by  guardian,  etc.,  40t). 

dower  right  of  insane  wife  conveyed  by  husband,  when,  959. 

estate  of  insane  mother  used  for  children's  benefit,  when,  1899. 

estate  of:  without  guardian,  how  managed,  1894. 

rented  or  sold,  when,  1896,  1897. 

surplus  income  from,  advanced  to  next  of  kin,  1900,  1901. 
evidence  not  given  against,  when,  1631. 
guardian  of :  apjiointed  on  inquisition,  etc.,  1766,  1890. 

appointed  on  certificate  of  hospital,  when,  1891. 
husband's  conveyance,  wife  being  insane;  duty  of  clcrU  thereto,  1000. 
Inquisition  of  lunacy  held,  when,  1890. 

jury  finding  insane,  guardian  appointed,  1890. 
justice  or  clerk  committing  nonresident,  to  hosi)ital ;   misdenioanor,  3,591. 
limitations,  statute  of.  does  not  affect,  362. 
Iiroceedings  against,  irregularly  begun,  validated,  441. 
railroad  acquires  right  of  way,  how,  2590. 

1290 


INDEX. 

INSANE  PERSOTSIS— continued: 

record  of  examinations  of  alleged,  kept  by  clerk,  915  (30). 
restoration  of,  to  sanity,  property  restored,  1893. 
sue  by  guardian  or  next  friend,  405. 
summons  served  on,  bow,  440. 

served  irregularly,  validated,  441. 
surplus  income  of ;  paid  to  next  of  kin,  1900,  1901. 
parties  to  bearing  of  application,  1902. 

advancements  to  next  of  kin  accounted  for,  1903. 
taxes  of,  collected  bow,  2861,  2802. 

violating  any  ordinance  of  state  bospital  for  insane ;  misdemeanor,  3695. 
wife  of ;  land  of,  sold  bow,  1898. 

free  trader,  wbeu,  2116. 

INSOLVENT  DEBTOR : 

assignment  for  creditors,  967-973.     See  Assignment  for  Creditors, 
creditor  liable  for  jail  fees,  wben,  1938. 
debtor  not  appearing,  cause  continued,  wben,  1926. 
discbarge  of,  from  prison ;  in  criminal  actions,  1915. 
petition  for,  filed ;  served  on  wbom,  1916. 

issuance  of  warrant  to  bring  out  prisoner,  1917. 
procedure,  on  bearing  of,  1918. 

oatb  of  Insolvency  taken,  1918a. 

prisoner  discbarged,  1918.  _    

wbo  may  oppose  discbarge,  1919. 
in  civil  actions,  wben  under  aiTest,  wbo  entitled,  1920. 
petition  filed,  wben,  1921. 

contains  wbat ;  verification,  1922. 
notice  of  filing,  served  bow,  192.3. 
wbo  may  suggest  fraud,  1924. 

none  suggested,  debtor  discbarged,  1925. 
wben  suggested ;  issues  made  up,  1927. 
bow  debtor  discbarged,  1927. 
jury  finding  fraud  ;  procedure,  1928. 
wben  not  under  arrest,  1930-1934. 

petition  filed  :  contents  verified,  19.30. 

schedule  of  assets  and  liabilities  filed,  1930. 
affidavit  annexed  to  schedule,  1930. 
order  to  creditor  to  sbow  cause.  1931. 
bearing;  discharge  of  debtor,  1932. 
creditor  may  suggest  fraud,  19.84. 
order  of  discbarge ;  effect,  1933. 
order  of  discharge,  effect  of,  1929,  1933. 
issue  of  fraud ;  trial,  1927,  1935. 
oaths  of ;  191Sa,  1922,  1930. 

taking  falsely  ;  effect,  1940. 
person  removing,  to  defraud  creditor,  liable  as  debtor,  1939. 

i-emoving  goods  to  defraud ;  person  aiding  in,  liable.  1939. 
prison  bounds ;  imprisoned  debtor  may  take,  bow,  1942. 
swearing  falsely  as  to  property ;  effect  of,  3614. 
trustees  of ;  general  powers,  1941. 

application  for,  wben  debtor  in  jail  or  penitentiary.  1943. 
made  by  whom,  1943. 
to  wbom.  1944. 
creditor  turning  over  property  to  court,  trustee  appointed,  1925. 
duty  of,  1945. 

more  than  one  appointed,  when,  1948. 
must  make  returns  and  have  same  audited,  1946. 
oatb  of,  1947. 

removal  of,  successor  appointed,  1949. 
undertaking  of,  filed,  to  abide  judgment,  1936. 

surrender  of  prisoner  to  discharge  undertaking,  1937. 

1291 


INDEX. 

INSPECTION : 

buildings  ;  regulations  concerning  erection,  etc.,  of.  2981-3011.     See 

ings  in  Towns, 
cotton,  in  certain  counties,  regulated,  3811. 
cotton-seed  meal,  before  sale,  regulated,  3814. 
county  commissioners;  power  of,  concerning,  1318  (19). 
inspector  ;  falsely  acting  as ;  misdemeanor,  3580. 
obstructing,  of  concentrated  feeding  stuffs ;  misdemeanor,  .3827. 

of  food,  condiments,  etc.,  3445,  3447,  3452. 
of  water  supplies,  3045-3047.     See  Water  Supply, 
writings,  secured  before  trial,  bow,  1050. 

INSTRUCTIONS  TO  JURY : 
judge  to  give,  how,  535. 

in  writing,  when,  536,  537. 

must  e.xpress  no  opinion  on  facts,  535. 
jury  may  take,  to  jury  room,  537. 
request  for,  must  be  written,  538. 

tiled  as  part  of  record,  538. 

INSURANCE :     See  Volume  II. 

adjuster  acting  for  unauthorized  company ;  misdemeanor.  3482. 

adjusting  loss  on  unauthorized  contract ;  misdemeanor,  3482. 
agent,  unlicensed,  acting,  or  for  unauthorized  company;  misdemeanor,  3484. 

doing  business  in  violation  of  law ;  misdemeanor,  ::!4!)0. 

embezzling  funds  belonging  to  company  ;  larceny,  3480. 

failing  to  exhibit  license;  misdemeanor,  3485. 

making  false  statements  to  defraud  company ;  misdemeanor,  3487. 

obtaining  premiums  by  false  representations ;  misdemeanor,  3486. 

procuring  insurance  in  unauthorized  company,  etc..  misdemeanor,  3483. 

signing  blank  contracts  of  certain  kinds  of,  misdemeanor,  34SS. 

unlawful  contracts  restricting  compensation  of,  .3401. 
association,  collecting  dues  and  not  listing  stock  for  tax ;  misdemeanor, 

3328. 
company;  making  false  statements  as  to  condition;  fined,  3493. 

making  statement  not  including  liabilities;  punished  how,  3492. 

otflcer  swearing  falsely ;  perjury,  3493. 

person  refusing  to  exhibit  books  of :  misdemeanor.  3494. 
fire  companies  reinsuring  in  unauthorized  company,  fined,  3495. 

mutual  fire  company  guaranteeing  against  assessment,  etc.,  fined.  .S49(). 
life  company;  reinsuring  risks  without  medical  examination;  fined,  3497. 

reinsuring  over  half  its  risks  without  permission,  3497. 
no  discrimination  against  towns  on  account  of  exemption  from  building 

regulations,  3011. 
physicians  making  false  death  certificate;  perjury,  3487. 
stored  property  insured  when,  3032. 
surety  companies  as  bondsmen,  238-243.     See  Surety  Companies ;  Bonds. 

INSURANCE  COMMISSIONER:     See  Volume  11. 
compensation  of  clerks  of,  2756. 
duties  growing  out  of  inspection  of  buildings,  2981-3011.     See  Ruildings  in 

1'owns. 
salary  and  fees  of,  2756. 
surety  companies ;  duty  to  cancel  license  of,  when,  275. 

INTEREST : 

clerk  computes,  after  verdict  and  adds  to  cost,  19.55. 

where  judgment  by  default  final.  tO'iG. 
contract,  money  due  by,  bears,  1954. 


I 


INDEX. 

nsTERRST—cmitinued: 

corporate  bonds  not  affected  by  law  as  to,  1951. 

guardian  notes  bear  compound,  1953. 

judgment  for  principal  bears,  1954. 

legal  rate  of,  1950. 

railroad  subscription  bonds;  interest  on,  how  paid,  2561. 

penal  bonds,  money  due  on,  does  not  bear,  1954. 

time  from  which,  runs,  1952. 

usur,y  ;  penalty  for,  1951. 

pleaded  as  counterclaim  in  action  on  note,  1951. 

INTERLOCUTORY  ORDERS : 

pending  controversy  as  to  removal  of  guardian,  1775. 
reviewed  on  appeal  to  supreme  court,  589. 

INTERPLEADER : 

attachment ;  Intervenor  in,  may  plead,  789. 
claim  and  delivery  ;  intervenor  in,  can  plead,  800. 
new  parties  may  interplead,  out  of  term,  when,  414. 
when  administrator  asks  to  sell  land  for  assets,  76. 

INTERSTATE  COMMERCE  COMMISSION: 

attorney  general  appears  for  corporation  commission  before,  1110. 
corporation  commission  carries  complaint  as  to  rates  before,  when,  1110. 
long  and  short  haul  rates ;  effect  on  freight  interstate,  1107. 

INTIMIDATION : 

of  employee  as  to  his  vote  at  election ;  misdemeanor,  3387. 
witnesses  and  jurors  in  courts  of  state ;  misdemeanor,  3G9G. 

INTOXICATING  LIQUORS:     See  Liquors. 

INVENTORY : 

decedent's  estate ;  administrator,  etc.,  makes,  42-44. 

taken  and  returned,  when,  42.  44. 
guardian's,  of  ward's  property,  1802,  1804. 

compelled  by  attachment,  1803.    . 
insolvent  debtor  must  file,  when  asking  for  discharge,  1930. 
proof  of,  from  another  state,  how  made,  1618. 
receiver's,  of  corporation  property,  contains  what,  1225. 
surety  on  forthcoming  bond  furnished  with,  when,  634. 
surviving  partner  must  make,  of  partnership  property,  when,  2.540. 

ISLAND,  ARTIFICIAL : 

erecting,  within  certain  waters,  misdemeanor,  3543. 

ISSUES  OP  FACT : 

administer ;  right  to,  an  issue  of  fact,  when,  27. 

arise  when,  546. 

arising  ou  special  proceedings,  transferred  to  civil  issue  docket,  78,  11 

529,  717. 
bastardy ;  as  to  paternity,  254,  255,  258. 
crops  seized  for  advances ;  issue  as  to  amount,  2054. 
definetl,  544,  546. 

feigned,  abolished ;  judge  may  order  trial  of,  357. 
fraud;  issues  of,  1927,  1935. 
made  up  by  whom,  548,  20.54. 

form  of,  549,  2054. 
mandamus ;  issues  in,  tried  when,  824. 

1293 


INDEX. 

ISSUES  01''  FACT— conliiuieil : 

piii'clinse  niouey  of  laud  denied,  issue  frauied,  480. 

sale  of  laud  for  assets  eoutested ;  issues,  how  tried,  78. 

supreme  court  transfers,  as  to  t-lainis  against  state,  to  superior  court,  l.">38. 

tried  by  whom,  527.  .528. 

when,  48-1.  u28,  5.33,  547. 
verdict  as  to,  550-553.     See  Verdict,  Civil  .Vctiou. 
waiver  of  ti-ial  of,  how,  540. 

ISSUES  OF  LAW: 

arising  before  clerk ;  appeal  to  judge,  114,  GIO. 
appeal  taken  when,  and  by  whom,  Cll. 

clerk  sends  statement  of  case  to  judge,  612. 
judge's  duty  as  to  appeal,  613. 

appeal  from  judge  to  supreme  court,  587,  588. 
defined,  544,  545. 
tried  bv  whom,  527,  613. 
when,  533,  547. 

JAIL:     See  County  Prison. 

bedding  furnished  by  county,  1338. 

bounds  of.  established  by  county  commissioners,  1339. 

bond  of  pri.soner  to  keep,  1339-1341. 

who  entitled  to  take,  1942. 
breaking  of,  prevented  how,  2825. 
built  and  maintained,  how,  1335. 

county  commissioners  failing  to  heat ;  misdemeanor,  3574. 
divided  into  five  apartments,  13.36. 
grand  juries  to  visit,  and  report,  1972. 
.  none;  jail  of  adjoining  county  used,  1349,  1350. 
prisoners  in.     See  Prisoner. 

removal  of.  how  accomplished,  1318  (6,  28).  1319. 
site  of  new.  designated  by  commissioners,  when,  1318  (6.  28),  1319. 
unsafe,  or  destroyed,  prisoners  committed  to  another  county,  1350. 

JAILER : 

allowance  to,  for  care  of  prisoners,  2799. 

for  care  of  United  States  prisoners,  1342. 
allowing  prisoner  to  escape ;  penalty.  2822,  3231. 
apprehending  danger  of  prisoner  escaping ;  duty.  1.345. 
confining  prisoner  in  inipi-oper  apartments ;  misdemeanor,  3660. 
creditor  liable  to  for  fees,  when,  19.38. 
duty  of:  to  care  for  comfort  of  prisoners,  1343. 
to  cleanse  jail  daily,  1.343. 

furnish  prisoners  with  food  and  drink,  1343. 
injuring  prisoner:  misdemeanor.  3661. 

liable ;  for  escape  of  prisoner  from  another  county,  when,  1349. 
for  refusing  to  accept  United  States  prisoner,  1342. 
safe-keeping  of  prisoner.  2822,  3231. 
must  receive  prisoner ;  bound  to  keep  safely,  3231. 
prisoners,  generally.     See  Prisoner. 

refusing  to  obey  commitment  of  prisoner  from  another  county  not  having 
jail ;  misdemeanor,  .360.3. 

JEWELRY : 

guardian  must  kccji.  .md  delivor  at  ward's  coming  of  age,  1791. 
innkeeper  liable  for  guest's  loss  of,  wlicn.  1911. 


1 


INDEX. 

JIM-CROW  CAR  LAW : 

railroads  ;  must  furnish  separate  apartment  for  the  races,  2619. 

certain,  exempted  from  requirements.  2620. 

penalty  for  failure  to  furnish  separate  apartments,  2022. 
when  races  can  be  placed  in  same  coach,  2021. 

JOINT  TENANTS  :     See  Tenant  In  Common. 

limitations,  statute  of,  barring  one,  does  not  bar  all,  374. 
pay  their  portion  or  all  of  taxes,  2857. 
personal  representatives  are,  100. 
survivorship  of;  does  not  obtain,  1579. 

does  obtain  as  to  partnerships,  etc.,  1579. 
as  to  trustees,  etc.,  1580. 

JUDGE,  SUPERIOR  COURT: 

absent  on  first  day  of  court,  duty  of  sheriff,  1510. 

not  attending  fourth  day,  sheriff  adjourns  court,  1510. 
courts  e.xehanged  by,  under  certain  restrictions,  1511. 
duties  as  to  estate  of  infants,  etc.     See  Guardian ;  Infants, 
duties  as  to  ti'ial.  etc.     See  Civil  Procedure, 
holds  court  in  the  different  counties  in  rotation,  1509. 
oaths  of  office  taken  by,  filed,  where,  1497,  2357,  2358,  2300. 
power  of,  to  discharge  drunken  solicitor,  1499. 
salary  of,  2765,  2706. 

special  terms  held  by,  without  extra  pay ;  expenses  paid,  1512,  1514. 
vacancy  in  otflce  of,  how  filled,  1498. 

JUDGE,  SUPREME  COURT:     See  Justices,  Supreme  Court. 

JUDGMENT : 

action  on,  barred,  when.  391,  392. 

defendant  may  plead  satisfaction,  when,  1522. 
after-born  child  does  not  affect,  against  decedent's  estate,  142. 
against  attorney  for  not  paying  to  client  money  collected,  212. 
appeal  from,  583-013.  1489,  1495.     See  Appeal,  Civil  Action. 

does  not  stay  execution,  598. 
appearance  by  one  administrator,  entered  against  all,  101. 
approved,  when  required,  by  what  .ludge,  571. 
arbitration  and  award  docketed  as,  1073. 
attachment,  784. 

betterments  claimed,  judgment  rendered  how,  657. 
chapter  on,  applicable  to  justices'  courts,  562. 
claim  and  delivery  of  personal  property,  570. 
tlerk  enters,  according  to  verdict,  when,  554,  1955,  1956. 
clerk's,  when  administration  account  shows  assets,  118,  119,  122-125. 
condemning  land  for  right  of  way  of  railroad,  2586,  2587,  2589. 
conditional,  against  garnishee  in  attachment,  780,  783. 
confessed,  580-582.     See  Confession  of  Judgment, 
confession  of.  to  secure  fine  and  cost,  1293. 
contested  election;  defendant  failing  to  give  bond,  837. 
controvers.v  without  action,  803-80.5.     See  Controversy  Without  Action. 
conveyance  of  real  estate  adjudged,  when,  566,  567. 
copy  of.  evidence  when.  569. 
corporate  franchise  forfeited,  1209,  1210. 
corporation  commission's;  affirmed  on  appeal,  enforced,  how.  1080. 

approved  by  superior  court,  effect  of.  on  rates,  1079. 

on  petition  of  railroad  for  relief  from  speed  ordinance.  1102. 
corporation  ;  dissolution  of,  adjudged  finally,  1207. 

copy  of  judgment  filed  In  secretar.v  of  state's  office,  1211. 
costs  ;  judgment  as  to,  on  appeal,  1279-1282.     See  Costs. 

what  it  covers,  1249. 

1295 


II^DEX. 

JUDGiMENT— co/i<!»»crf; 

coimterelaiui  exceediug  plaiutift's  claim,  what,  553. 

creditors  may  doelvet,  agaiust  decedent's  estate  pending  appeal,  when,  121. 

credits  ou ;  proceedings  to  enforce,  579.  • 

criminal  action,  1257,  3258,  3282.     See  Criminal  Procedure. 

cross-inde.\  of;  kept  by  clerk,  015   (4). 

must  be  made  of  each  judgment,  573. 
damages ;  in  actions  for.     See  Damages, 
debtor  out  of  state,  judgment  enforced  when,  36(3. 
default  and  inquiry ;  in  action  to  try  title  to  office,  837. 

when  granted,  557. 
default ;  final,  when  granted,  550. 

iu  filing  pleadings,  460,  473. 

on  appeal  from  justice.  007. 
defaulting  witness ;  judgment  against,  1G43. 

defendants,  not  all  served,  agaiust  whom  judgment  entered,  455. 
defined,  555. 

demurrer  to  evidence,  judgment  on,  539. 
destrojed ;  how  perpetuated,  60,  67,  71. 

recital  of.  in  deed,  etc.,  prima  facie  evidence  of  correctness,  342. 
detinue,  action  of,  570. 
docket  kept  by  clerk,  915  (2). 
docketing  of;  of  federal  court,  in  superior  court,  570. 

clerk  ;  duties  of,  as  to,  573. 

fees  of,  for  docketing,  2773. 

in  counties  other  than  where  taken,  575,  577. 

justice's  judgment  in  superior  court,  1479. 
effect  of,  1479. 
in  another  county,  lien  from  when,  1479. 

required,  in  county  to  which  execution  issues,  022. 

several  judgments  taken  at  same  term,  deemed  docketed  first  day  of 
term,  573. 

supreme  court,  in  superior  court,  575. 

taken  at  same  term,  relate  back  to  fii-st  day,  573. 

when,  where,  and  how,  573-570. 
entry  of :  against  representatives,  when  only  one  served,  101. 

against  non-resident  defendant,  when,  1451. 
execution  of,  in  action  trying  title  to  ofiice,  841. 
execution  to  enforce,  015-709.     See  Execution ;  Execution  Sales, 
fee  of  clerk  for  entering,  iu  different  cases,  2773. 
federal  court,  docketed  in  superior  court,  570. 
findings  by  judge ;  judgment  on,  541. 
forgery  of ;  felony,  3425. 
frivolous  pleadings ;  judgment  on,  560. 
garnishee  in  attachment,  780.  783. 

heirs,  devisees,  legatees  sued  by  creditor;  judgment  in,  54,  56,  57. 
how  rendered,  when  one  or  more  parties,  503. 
indexing  of,  573. 
interest  on.  when,  1954. 

joint  and  several  debtors,  part  only  served  with  summons,  -155. 
joint  fences  ;  judgment  as  to  value,  etc.,  1009. 
judge's,  on  appeal  from  clerk,  013. 
justice's ;  action  on,  barred,  when,  392. 

in  criminal  action  must  contain  detailed  costs,  1257. 
justice's  court,  502.     See  Courts,  .Tustices'. 

no  judgment  by  default,  1464. 
land  ;  damages  to,  recovered  in  ejectment,  654. 

jud^'Miont  not  puforccilile  against,  until  docketed,  1482. 

(|uicUng  title  to  :  judgment  a  lien  on  what,  1589. 
landlord's  cjoclmcnt  of  tenant,  2(104.  20n.'->. 
legal  title,  with  covenants,  jiassed  by,  when,  506. 


INDEX. 

JUDGMENT— eoii<iH»(erf.- 

lien  of ;  for  bow  long,  574-57G,  391,  392,  685,  1479,  1482,  1589. 

not  continued  by  action  on,  391. 

on  personal  jn'operty,  from  levy  only,  627,  1482. 
property  of  decedent,  126. 
what,  574-576,  1479. 
limitations,  statute  of,  bars,  when,  391,  392,  685. 
limited  to  demand  in  complaint,  wben,  565. 
married  woman ;  rendered  against,  563. 
nisi ;  against  defaulting  witness,  1643. 

officer,  wben  amerced,  2714,  2817,  2818. 
prisoner  on  forfeited  recognizance,  3223. 

notice  given,  before  execution  on,  2818,  3217. 
nonsuit ;  effect  of,  370. 

not  allowed  after  verdict,  1520. 
notice  given  before  execution  on.  nisi,  3217. 

nuisance;  judgment  for  damages  or  for  remov.-il  of  nuisance,  825. 
offer  to  confess :  effect,  if  rejected,  860. 
on  witness  ticket,  how  rendered,  1299. 
partition  of  land,  2494,  2495. 

of  personalty,  2505. 
party  dying  after  verdict,  how  judgment  entered,  .564. 
payment  of,  docket  credited,  etc.,  577. 

how  credits  enforced,  579. 
pleaded  ;  jurisdiction  presumed,  when,  479. 
prisoner  forfeiting  recognizance,  judgment  nisi,  3223. 

final,  3224. 
processioning  jiroceedings ;  bow,  rendered  in.  326. 
purchase  money  of  land ;  how  indicated  in,  627. 
quo  warranto ;  adjudging  guilty  of  usurping  office  or  franchise,  840. 

defendant  failing  to  give  bond ;  effect,  837. 
record  destroyed,  perpetuated,  how,  332. 
referee's  report ;  judgment  entered  on,  525. 
regarded  as  a  deed,  wben,  567. 
registered,  when,  568. 

certified  copy  of  registered  judgment  evidence.  569. 
relief  against,  when  mistake,  surprise,  excusable  neglect,  513. 
rendered  in  vacation,  559. 
restoring  person  to  citizenship,  2680. 
roll ;  what  constitutes,  572. 
sale  of  land  ordered  by ;  taxes  Included,  2857. 
set  aside  for  mistake,  siirprise,  excusable  neglect,  513. 
sheriff  must  execute,  2810. 

special  proceedings;  order  and  judgment  in.  signed  by  judge,  722. 
stands  until  reversed,  .561. 
statute  of  limitations  runs  against.  ."91,  .",92. 
summarj',  in  favor  of  surety  against  priniipal.  2842. 
supreme  court;  decision  of,  handed  down,  l.')49. 

rendered,  on  appeal,  on  undertakings.  (105. 

rendered  on  inspection  of  record,  l."i42. 
surety  company  failing  to  discharge,  license  cancelled.  275. 
surety  obtains,  against  iirincipal.  2S42. 
suretj'sbip  shown,  jn<lgni('ut  must  recite  fact.  2840. 
taken  on  penalty  liond.  disihargcd,  how.  1523. 
taxes  compelled,  to  be  paid  liy.  wben.  2S57. 
tax  list  indorsed,  has  force  of,  28."!!. 
tender  of;  in  justices'  courts;  elToct,  1471. 

in  superior  court,  859-863.     See  Compromise, 
transcript  of:  clerk's  fees,  2773. 

sent  to  other  counties  for  docketing,  575,  577,  1479. 
vacating  gi-ant ;  judgment  recorded,  where,  1749. 

Rev.  Vol.  1—78  1297 


INDEX. 

JUDGMENT— ccm  tin  iieil  : 

verditt  both  sijocial  and  general ;  what,  552. 

vessel  owner ;  judgment  against,  for  tow.nge  or  unloading,  20-14. 

widow's  year's  allowance  increased,  3107. 

JUDICIAL  DISTRICTS : 

division  of  state  into ;  and  terms  of  court  in  each.  l.'iOG. 

JUDICIAL  NOTICE  : 

court  talics,  of  private  statutes  when  pleaded  properly.  500. 

JUDICIAL  SALES : 

generally.     See  Sales. 

purchaser  at,  deemed  real  owner,  when  sale  confirmed,  1525. 

JURISDICTION: 

contested  by  demurrer,  474. 

clerk,  superior  court  has,  when,  16.  17.  352,  358,  901. 
corporation  commission  has,  generally,  1054. 
over  construction  of  side-tracks,  1097   (5). 
demurrage,  1100. 

discrimination  in  freight  rates,  1095. 
handling  of  freight,  etc.,  at  stations,  1094. 
location  and  building  of  stations,  etc.,  1097. 
Iilaelng  and  loading  of  cars,  1100. 
prevention  of  rebates  by  common  carriers,  1095. 
rates  of  transportation  companies.  1099. 
speed  of  trains  through  incorporated  towns,  etc..  1101. 
telegraph  and  telephone  rates.  109G. 
corporation  commission's  decision  appealed  from,  who  hears  appeal,  1075. 
corporation  dissolution  ;  .iurisdiction  to  appoint  receiver  or  trustee,  1203, 

1204. 
county  connrissioners',  1318,  2G83. 
court  acquiring,  retains,  445. 
in.iunction  ;  what  .iudge  grants,  814. 

judge  having,  to  approve  judgments,  orders  and  decrees,  571. 
justices'  courts ;  in  bastardy,  252. 

in  certain  cases  of  contract,  1419,  1421. 
of  tort,  1420. 
criminal  actions,  1427,  3077. 
ejectment  of  tenant  b.v  landlord.  2002. 
issuance  of  peace  warrants,  31C5. 
none,  where  laud  title  in  controver.s.v,  1419,  1423. 
mayor's,  2934,  2935,  3059. 

presumed,  when  judgment  pleaded  as  "duly  rendered,"  497. 
special  terms  of  court  have  same,  as  regular  term,  1510. 
superior  court;  in  both  civil  and  criminal  cases,  1500,  1557. 
in  appeals :  from  clerks,  1.502. 

from  corporation  commission.   1074. 

county  commissioners,  2(;S3,  2080. 
justices'  courts,  1.502. 
mayors  of  cities,  1.502. 
in  vacation,  1.501. 

over  coniorate  elections.  11.88,  1189. 
restoration  to  citizensliiji.  2070. 
supreme  court;  as  court  of  review,  1.539. 
as  to  claims  against  state,  1.537. 


INDEX. 

JURY  : 

argumeuts  of  counsel  to,  regulated  by  court,  216. 
bo.x  divided  into  two  sections,  1958. 
challenges  to,  in  civil  causes,  1436,  1964. 
grounds  for,  1960,  1967. 
judge  decides  competency,  1966. 
person  challenged  and  withdrawn,  another  called,   1966. 

in  criminal  actions  generally,  3203-3265. 

peremptory  challenges  by  defendant,  3263,  3265. 
by  state,  3264,  3265. 
coroner's;  fee  for  sitting,  1053. 
county  commissioner's  duty  to  draw,  1513,  1959. 

failing  to  draw,  sheriff  draws,  1963. 
disqualified  persons  drawn  on,  names  destroyed,  1961. 
drawn  how,  for  the  term,  1959,  1962. 

names  of  persons  with  suits  pending  returned  to  box,  1960. 

number  drawn,  1959. 
entitled  to  judge's  instructions  in  jury  room,  537. 
exemptions  from  jury  duty,  who  entitled  to,  1980. 
fees  and  mileage  of  jurors,  2798. 
furnished  with  accommodations,  1978. 
grand ;  drawn  and  excepted  to  how,  1969,  1970. 

duties  of,  and  regulations  concerning,  1969-1972.    See  Grand  Jury. 
instructions  by  judge  to,  535-538.     See  Instructions  to  Jury. 

jury  entitled  to,  in  jury  room,  537. 
jurors ;  accepting  bribe :  felony,  3697. 

clerks  keep  record  of,  915  (14),  1981. 

compensation  of,  1432,  1442,  2798. 

defaulting;  summons  against,  1496   (34). 

exempt  from  civil  arrest,  1979. 

liable  for  improper  conduct,  944. 

not  attending,  penalty,  1975,  1977. 

oath  of,  1496  (32),  2360. 
justice's  court ;  how  drawn,  etc.     See  Courts,  Justices', 
list  of  jurors  made  out  by  commissioners,  1957. 

names  written  on  scrolls  and  put  in  box,  1958. 
non-attendance  of  jurors,  penalty,  1975,  1977. 

procedure  to  enforce  penalty,  1977. 
ofiicer  attending,  sworn  by  clerk,   1527. 

special  term  of  court ;  commissioners  draw  jury  when,  1513. 
speci.Tl  venire;  ordered  when,  1973. 

challenges  to  jurors  on,  3263-3265. 

drawn  from  box,  when,  1974. 

exhausted  by  challenge ;  another  order,  1974. 

jurors  not  attending  ;  penalty,  1975. 

jury  chosen,  how  names  disposed  of.  1974. 

sheriff  failing  to  execute  writ,  penalty,  1975. 

summoned  how.  1073.  1974. 
summoned  by  sheriff.  14.34.  1438.  1967.  1973,  1974,  1976.      ' 
sworn  and  empanelled,  1443,  1496   (32). 
tales  jurors  summoned  by  sheriff  for  petit.  14.38,  1967. 

qualification  of  talesmen,  1967. 

sheriff  interested  party,  another  summons,  1968. 
tax  fee  in  bill  of  cost  goes  to,  how,  12.53. 
ticket ;  clerk's  fee  for  making,  2773. 
trial  by.     See  Trial, 
verdict  of,  in  civil  actions,  5.50-.554.     See  Verdict,  Civil  Action. 

in  criminal  actions.     See  Verdict,  Criminal  Action. 

JUSTICE  OF  THE  PEACE : 

article  seven  in  the  constitution  abrogated  in  what  particular,  1408. 
can  not  be  compelled  to  try  cause  out  of  township.  1425. 
committing  non-resident  insane  person  to  hospital,  misdemeanor,  3.591. 
1290 


INDEX. 

JUSTICE  OF  THE  PEACE^-coiitinucd : 
conveyances :  iukuowledgcil  before,  009. 

probated  by.  when  land  not  in  county.  002. 
county  coniniissioners ;  chosen  by  justices  in  certain  counties.  1312. 

exercise  power  conjointly  with,  in  certain  counties.  1319. 
county  treasurer's  office  abolished  or  restoretl  by  the  several,  1.395. 
court  of;  procedure  in.     See  Courts,  Justices', 
dockets,  etc.,  delivered  by,  to  clerk,  upon  term  expirin;:.  1418. 
duty ;  to  destroy  gaming  tables,  3720. 

to  till  vacancies  in  board  of  commissioners,  when,  131.~). 

keep  itemized  account  of  all  fines,  etc.,  imposed  by  him,  1877. 
elected,  when  and  how.  1400,  1410. 

in  Warreu  coimty.  1410. 
failing  to  turn  over  dockets,  etc..  to  clerk,  misdemeanor.  3.>78. 
federal  office  may  be  held  by,  1415. 
fees  of,  2m,  2788. 

forfeits  office  by  remo^•al  from  township,  1412. 
habeas  corpus,  ad  testificandum ;  justice  may  issue,  185G. 
jurisdiction,  etc.,  of.     See  Courts,  Justices', 
liability  of;  none  for  endorsing  fraudulent  warrant,  3161. 

penalty  for  not  returning  recognizance,  etc.,  to  court,  320(3. 
list  of,  sent  to  secretary  of  state  by  clerk,  OIG. 
malpractice  of,  in  ofhce ;  removed  therefrom,  1414. 
marrying  white  and  negro  person  ;  misdemeanor,  3370. 
may  hold  more  than  one  office.  23G4. 
meetings  of,  witli  county  commissioners,  in  certain  counties,  1313. 

register  of  deeds  acts  as  clerk  to,   1313. 
number  of,  for  each  township,  1409. 
oath  of,  subscribed  before  clerk,  1411,  2357,  2358,  23(50. 
penalty  ;  for  failing  to  pay  over  certain  moneys,  1.383. 

for  failing  to  return  papers,  etc.,  to  superior  coin-t,  3206. 

failing  to  settle  on  notice  from  finance  committee,  1392. 
perform  marriage  ceremony.  2081. 
practicing  law  ;  justice  disqualified  for,  210. 

in  state  courts  ;  misdemeanor,  .3041. 
probate  of  conveyances  by.  989.     See  Probate, 
qualifies,  when  and  how,  1411. 

clerk's  fee  for  qualifying,  2773. 
record  of,  kept  by  clerk,  915  (15,  16), 

refusing  itemized  bill  of  costs  when  demanded  ;  misdemeanor,  3588. 
removal  of.  from  office  for  infamous  crime  or  malpractice.  1414. 
removing  from  township  forfeits  office.  1412. 
resignation  of,  how  filed.  1413. 

swearing  falsely  to  .statement  required  by  law;  misdemeanor,  .3(i05. 
term  expiring,  must  return  dockets,  etc.,  to  clerk,  1418. 
trial  before.     See  Courts,  Justices', 
vacancy  in  office  of,  filled  how,  1411. 
widow's  year's  support,  assigned  by,  3096. 

JUSTICE'S  COURT :     See  Courts,  Justices'. 

JUSTICES,   SUPREME  COURT: 
allowance  for  clerk  to.  27(>4. 
may  issue  writ  of  habeas  corpus,  1824,  1826. 
number  of,  15.32. 

oath  of  office  taken  and  subscribed  before  whom,  1533,  2.'!57.  '23.58,  23(50. 
quorum  of,  for  transaction  of  busines.s,  1534. 
salary  of,  2764. 

supreme  court;  jurisdiction,  etc.,  as.     See  Court,  Supreme. 
tal;o  bail,  when,  3200,  3210. 


INDEX. 

KEEPER  OF  ARSENAL: 
salary  of,  2806.     • 

KEEPER  OF  CAPITOL:  See  Volume  11. 
ex  officio  standard  lieoper,  when,  306S. 
power  of,  to  arrest  disorderly  persons  around  state  buildings,  3742. 

to  arrest  persons  injuring  buildings,  etc.,  3742. 
reports  trespass  upon  public  gi-ounds  to  whom,  8745. 
salary  of,  2806. 

KIDNAPPING  : 

person  forciljly  or  fraudulently ;  felony,  3634. 

LABEL:     See  Trademarks. 

LABOR :    See  Volume  II. 

children  under  12  not  allowed  to  be  employed  in  factories,  3362. 
hours  of  children  under  18  regidated  in  factories,  3363. 

LAND  :     See  Real  Property. 

LANDLORD  AND  TENANT : 

advancements  by  landlord ;  effect  of  tenant  abandoning,  3366,  3367. 
landlord  failing  to  make,  as  agreed;  nii.sdemeanor,  3366,  3367, 
agreement  by  tenant  to  repair  construed,  how,  1985. 
agricultural  tenancies,  1993-2000. 
chapter  on,  applicable  to  leases  of  turpentine  trees,  etc.,  1999. 

applicable  to  mining  and  timber  leases,  when,  2000. 
contract  between ;  violated ;  consequences,  certain  comities,  3366,  3367. 

certain  ones  must  be  in  writing,  976. 
controversy  between,  as  to  contract  and  crop,  1995. 
appeal  from  .iustice  to  superior  court,  1995. 

tenant  failing  to  give  undertaking  on;  effect,  1996. 

neither  landlord  nor  tenant  giving,  crops  sold,  1997. 
crops ;  deemed  vested  in  landlord  until  when,  1993. 
landlord's  remedy  to  enforce  lieu  on,  1993. 
remedy  when  landlord  unlawfully  holds,  1994. 
tenant's,  not  subject  to  execution  for  landlord's  debts,  1998. 
ejectment  of  tenant  by  landlord,  2001-2011. 

appeal  from  justice's  judgment  in,  2008,  2011. 
undertaking  to  stay  execution,  2008. 

kept  good  or  appeal  of  tenant  dismissed,  2008. 
complaint  of  landlord  to  secure  summons,  2002. 

contains  what ;  verification,  2002,  2011. 
damages  estimated  in  judgment,  how,  2005,  2006. 
demand  for  rent  not  necessary,  when,  198.3. 
evidence  of  amount  of  rent,  when  no  contract,  1986. 
execution  to  enforce  judgment  in,  2005,  2011. 

stayed  on  appeal,  how,  2008,  2011. 
forms  used  in  action  of,  2011. 
for  what  causes.  2001. 
judgment;  by  default  or  confession,  2004. 
on  verdict,  2005,  2006. 

reversed  on  appeal ;  restitution  made,  2009. 
justice  makes  certain  docket  entries,  2011. 
possession  of  tenant,  possession  of  landlord,  387. 
proceedings  stayed  by  tenant's  tender  of  rent  and  cost,  2007. 
restitution  made  when  judgment  for  tenant  on  appeal,  2009. 
summons  issued  on  verified  complaint,  2002,  2011. 
equivalent  to  a  demand  for  rent,  when,  1983. 
service  of,  how  made,  2003,  2011. 

1301 


INDEX. 

LANDLORD  AND  TENANT— eofUuiuerf; 

ejectment  of  tenant  by  landlord — contiiiueil. 

tenant  entitled  to  damages  for  wrongful  removal,  2010. 

trial ;  defendant  making  denial  forces,  2005. 
eitlier  party  may  demand  jury,  2005. 
verdict  for  landlord ;  judgment,  2005,  200G. 

when  action  can  be  sustained,  2001. 
grantees  of  reversion ;  rights  of,  as  to  tenants,  1989. 
landlord  seizing  tenant's  crop  wLen  notbing  due;  misdemeanor,  36G4. 
lien  of  landlord  on  tenant's  crop,  1993. 

liens  on  crops  for  advances,  enforced,  bow,  2052-2057.     See  Lien, 
notice  to  tenant  to  quit,  time  of.  1984. 
relation  of  lessor  and  lessee,  1982. 
rent ;  apportioned  bow,  when  estate  terminated  by  death,  1987,  1988,  1990. 

not  stated  in  contract ;  what  recovered,  198G. 

pavment  when  premises  surrendered  for  destruction  of  house,  etc., 
1992. 
tenant ;  abandoning  crops  after  advanced ;  misdemeanor,  330G,  33G7. 

crop  of.     See  under  this  bead.  Crops,  etc. 

ejected,  when,  2001.     See  under  this  head.  Ejectment,  etc. 

emploving,    after    abandoning    crop    when    advanced ;    misdemeanor, 
33G6,  3367. 

failing  to  perform  contract,  certain  counties,  ejected,  2001. 

forfeiture  by,  without  demand  of  rent,  when.  1983. 

holds,  how,  when  lease  determines  by  uncertain  event,  1990. 

may  surrender  premises  when  building  destroyed,  etc.,  1992. 

not  liable  for  accidental  damage,  1991. 

party  to  action  against  landlord,  when,  410. 

remo\'ing  crops  without  paying  landlord ;  misdemeanor.  36G5. 

rights  of.  as  against  grantees  of  reversion.  1989. 

surrendering  possession  to  other  than  landlord ;  misdemeanor,  3G82. 
undertakings  in  controversy  between,  1995-1997,  2008. 

LANDMARKS : 

wilfully  altering  or  removing,  misdemeanor,  3G74. 

LARCENY : 

bank-notes  subject  of ;  indictment,  3251. 

branded  timber  ;  person  taking  away,  secreting,  etc. ;  misdemeanor,  3853. 

ehoses  in  action,  subject  of,  3498,  3499. 

court  records,  etc.,  taken  for  fraudulent  purposes ;  misdemeanor.  3508. 

distinction  between  grand  and  petit,  abolished,  3500. 

dogs  listed  for  taxes,  subject  of.  3501. 

felonious  injury  to  stock  for  purpose  of  conversion,  etc.,  is,  3504. 

fish  from  fish-nets,  24T8. 

ginseng ;  taking,  from  land  of  another  where  fenced,  3502. 

horse,  mare,  gelding  or  mule,  subject  of,  3.'i05,  3509. 

indictment  barred  when  accused  tried  for  false  pretense,  3432. 

indictment  for  larceny  and  receiving;  substance  of,  3251.  32.53. 

insui'ance  agent  embezzling  funds  of  company,  guilty  of.  3487. 

oysters  from  private  beds,  2401. 

person  destroying  or  erasing  timber-marks  feloniously  ;  niisdeineanor,  3855. 

punishment  for,  3500,  3500. 

receiving  goods  knowing  to  have  been  stolen,  punishable  as,  3507. 

ride  on  horse  can  be  subject  of.  35fi9. 

servant  converting  goods,  etc..  trusted  with  by  master,  3499. 

stolen  properly  retiu'ned  to  owner  upon  conviction,  31.5.3. 

venue  in  action  for  receiving,  3.507. 

will,  codicil  or  other  instrument,  subject  of,  3510. 

wood  on  land  of  another,  when  taking  of,  is  larceny,  3511. 


. 


INDEX. 

LAW: 

common,  in  force,  932. 
issues  of.     See  Issues  of  Law. 
of  other  states,  how  proven,  1594. 
this  state,  1592,  1593. 

LAWFUL  FENCE : 

what  is,  1G60-1G63.     See  Fences ;  Stoclc  Law. 

LAW  MERCHANT: 

applicable  to  negotiable  instruments,  23-t4. 

LAWYER  :     See  Attorney  at  Law. 

LEASE : 

agreement  in,  to  repair,  how  construed,  1985. 
contracts  for,  of  land ;  must  be  in  writing,  976. 

married  woman's,  executed  and  proven,  how,  2096. 

registration  of,  necessary,  979,  980. 
determiuiug  ou  uncertain  event ;  effect,  1987,  1990. 
mining ;  construed  and  enforced,  '2000. 
timber ;  construed  and  enforced,  2000. 
turpentine  and  lightwood  leases,  construed  and  enforced,  1999. 

LEGACIES :     See  Wills. 

.abatement  of,  to  provide  for  after-born  child,  1.30,  141. 
action  for,  after  two  years  from  letters  granted,  144. 
children  legatees  dying ;  issue  of,  inherit,  when,  3144. 
due  absent  legatee,  paid  into  court,  when,  151. 
legatees  liable  for  decedent's  debts,  when,  52-58. 
ordered  paid  before  two  years,  when,  155. 

LEGISLATIVE  DEP.VRTMENT :     See  General  Assembly;  also  Volume  II. 

LETTERS : 

of  administration.     See  Administration. 

guardianship.     See  Guardian, 
wrongfully  opening  or  publishing  contents,  misdemeanor,  3728. 

LEWD  WOMEN : 

committing  lewdness  with  or  in  presence  of  student ;  misdemeanor,  3353. 
prosecution  must  be  in  six  months,  3353. 
student  may  give  testimony,  3353. 

LIABILITY,  STATUTORY:     See  Statutory  Liability. 

LIBEL: 

action  against  newspaper  for ;  notice  required,  2012. 

damages  recovered  in  ;  what,  2013. 
anonymous  communications  and  publications  amounting  to,  2014. 
burden  of  proof  in  action  for,  501. 

communicating  to  newspaper  which  publishes  it;  misdemeanor,  3635. 
complaint  in  action  for,  501. 

costs  in  civil  action  for  damages  for,  1264  (4),  1266. 
defendant  allowed  to  give  in  evidence  mitigating  circumstances,  502. 
limitations,  statute  of.  bars  action  for,  397. 
slander.     See  Slander, 
truth  of,  a  defense  to  action  for,  3267. 


INDEX. 

LICENSE  :     See  Volume  II. 

attorney  at  law  .■secures,  liow,  207-210. 

auctioneers,  217. 

county  commissioners  issiie,  when,  1318  (18,  20). 

dealing  in  oysters  without.  2395. 

embalming  without ;  misdemeauor,  3G44. 

fishermen  must  have,  when.  2459. 

hunters,  nonresident,  must  have,  1872,  1874,  1878-1880. 

lev.v  and  sale  to  collect.  2870. 

liquor.  •2(i(i'_'-2(itiS.     See  Liquors. 

makintr  f;ilse  statement  to  ohtnin,  2.300. 

marriM;;o,  2(iS(i-2(i!)2.     See  Marriage. 

municiiiality  grants,  2024. 

oysternien  must  have,  2372.  2373,  2386,  2387,  2408-2412.     See  Oysters. 

must  exhibit,  when,  23S9. 
practicing  dentistry  without ;  misdemeanor,  3G42,  3C43. 

medicine  without ;  mi.sdenieanor.  364.">. 

pharmacy  without ;  misdemeanor,  3C48,  3649. 

trade  or  profession  without,  2877. 

sheriff's  duty  to  warrant  delinquents.  2877. 

trained  nurse  without;  misdemeanor,  3656. 
selling  liquor  without,  2062-2008.     See  Liquors, 
stevedores  must  have,  2050,  2051. 
tax  ;  person  failing  to  pay  ;  misdemeanor.  3787. 

LIEN : 

agricultural ;  landlord's  has  priority,  1993. 

person  advancing  cropper  has  lien,  if  in  writing,  2052. 
lien  enforced  how  ;  trial.  20.54. 
short  form  for  lien,  2055. 

tenant  failing  to  cultivate  crop  ;  remedy,  2056. 

trustors  and  mortgagors  bound  by  law  of,  2053. 
architect's  list  of  indebtedness  furnished  owner  before  being  paid.  2021. 
attachment  a  lien  on  propert.v.  when.  767.  771. 
betterments ;  .ludgment  for,  a  lien  on  land  bettered,  058. 
colts  and  calves ;  lien  on.  for  season,  2024. 

not  exempt  from  execution  to  satisfy  lien,  2025. 

person  claiming  lien  barred,  when,  to  enforce,  2025. 
contractor's  list  of  indebtedness  furnished  owner  before  being  paid,  2021. 

failing  to  furnish ;  misdemeanor,  366.3. 
contractor  swearing  falsely  to  dcfra\ul  laborer,  punished,  how,  3613. 
corporation  insolvent,  laborers  have  first,  1206. 
defendant  allowed  what  as  set-off  or  counterclaim.  2032. 
discharged,  bow,  2033. 
docket  of,  kept  by  clerk,  915  (21). 

employer  attempting  to  remove  property  to  defraud  of ;  remedy,  2031. 
execution  to  enforce.  2029. 

.lustice's,  can  not  he  enforced  on  land :  jiroviso,  "20.30. 
form  of,  for  advances  to  make  crops,  2055. 
innkeepers  have,  when,  on  baggage,  2037. 

enforced  b.v  sale,  when  and  how,  2038. 

notice  of  sale,  20.39. 
judgment,  docketed,  a  lien,  574,  1479.     See  Judgment, 
laborers  have,  when,  on  buildings,  etc..  2016.  2019.  2041. 

claim  of  laborers  enforced  against  railroad  constructor,  2018. 

notice  of  claim  by  laborer  to  owner:  effect.  2020,  2021. 
land  sold  for  taxes,  purchaser  has  lien.  2011. 

foreclosure  of  lien.  "2912. 
lis  pendens  a  lien.  460-464.     See  Lis  Pendens, 
material  men  have.  when,  on  buildings,  etc..  2016. 

notice  (if  cliiiiii  by  iii;il<M-i:il  man  In  owner;  elTeet.  '2020,  2021. 

1.3(H 


INDEX. 

LIEX — continued: 

mecbauic's,  on  personal  property  repaired,  etc.,  2017. 

how  foreclosed,  2017. 
owner  paying  contractor  after  notice  of  indebtedness  for  labor,  etc.,  does 
not  discharge  lien,  2020.  2021. 

owner  must  pay  claims  pro  rata,  when,  2023. 
priorities  among  liens,  2034-2036. 

date  from  notice  of  lieu,  2035. 

laborer's  lien  on  crop  preferred,  20.34. 

nothing  to  affect  rule  as  to  priorities,  2036. 
proceedings  to  enforce,  2020-2031.  2(i:iS.  2043.  2054. 

action  prosecuted,  when  and  where.  2027. 

claims  filed,  where  and  when,  2022,  2026,  2042. 
filed  in  twelve  months.  2028. 

judgment  and  execution,  2029. 
railroad ;  lien  on,  for  labor,  material,  etc..  2018,  2021,  2022. 
register  of  deeds  furnished  with  books  for  recording,  2057. 
subcontractors  have,  when,  2019. 

notice  of  claim  by  subcontractor  to  owner ;  effect,  2020,  2021. 
sums  due  by  statement  to  owner,  lien  without  filing,  2022. 
tax  lien  on  land,  2856,  2858,  2860,  2861,  2864,  2911. 

foreclosed,  how,  2866,  2912. 
vessel,  lien  ou ;  for  labor,  material,  etc.,  2021. 

enforced,  how,  2043. 

for  labor  in  loading  and  unloading,  2041. 
towage,  2040. 

judgment  on  ;  effect,  20-14. 

must  be  filed  when,  2042. 

notice  to  master  of,  2042. 

not  to  exceed  amount  due  contractor.  2045. 

owner  or  master  must  see  stevedore's  labor  paid,  2046. 

may  honor  orders  for  wages  issued  by  stevedore,  2048. 
may  refuse  to  pay  stevedore  until  labor  paid,  2047. 
must  comply  with  law  as  to  labor ;  liability,  2049. 

stevedore's  license  tax,  2050,  2051. 

LIFE  ESTATE :     See  Tenant  for  Life. 

LIFE  INSURANCE:     See  Insurance;  also  Volume  II. 

LIGHTHOUSE : 

master  of  vessel  anchoring  in  range  line  of  lighthouses ;  misdemeanor,  3550. 

LIGHTS  : 

displaying  false,  along  seashore  to  deceive ;  misdemeanor,  3430. 

LIMITATIONS,  STATUTE  OF  : 

account,  current ;  statute  begins  to  run  against,  when,  376. 

administration  bond ;  action  on.  barred,  393. 

action  begun  stops,  as  to  each  defendant,  when,  359. 

actions,  not  otherwise  specified,  barred,  when.  399. 

administrations  of  estates  barred  in  ten  years  from  death.  367. 

admission  by  partner,  effect  of,  on,  372. 

apprentice,  barred,  when,  from  suing  on  indenture,  199. 

assault,  action  for,  barred,  when,  .397. 

bail,  action  against,  barred,  when,  395  (7). 

bank-notes  or  bills,  no  limitation  on,  377. 

bank  officers  and  stockholders  sued  for  penalty,  etc.,  378. 

bastardy,  proceeding  in.  barred,  when,  260. 

battery,  action  for,  liarred,  when,  397. 


INDEX. 

LIMITATIONS,  STATUTE  OV—coiitiiiiied: 
begins  to  run  from  what  time,  300. 

agaiust  acoouut  t\urent,  370. 

action  for  fraud  or  inistalve,  395  (9). 

Infants,  302. 

insane  persons,  302. 

married  woman,  3(>3. 

person  imprisoned,  302. 

persons  out  of  state,  300. 

persons  inider  cine  or  more  disabilities,  364. 

in  favor  of  undisclosed  partner,  when,  373. 
claim  and  delivery,  action  barred,  when.  395. 
claims  against  cities  and  towns,  barred,  when,  396. 

against  county,  barred,  when,  396. 
contested  election ;  action  barred,  when.  391,  395. 
contracts,  action  on,  barred,  when,  .391,  395. 
contribution ;  action  for.  by  devisee,  etc.,  barred,  58. 
corporate  charter  annulled  for  nonuser  for  two  years,  1198. 
corporation ;  claim  again.st,  for  tort,  barred  in  certain  cases,  1130. 
corporation  directors,  wrongly  declaring  dividends ;  action  against,  barred. 

when,  1192. 
co-tenants ;  part  of.  may  be  barred,  part  not,  374. 
county  claims ;  action  on,  barred  in  two  years,  390. 
creditor  barred  from  suing  personal  representative.  392  (2). 
criminal  conversation;  action  for,  barred,  when.  395  (5). 
decedent's  estate ;  claims  against,  barred,  when.  41,  93,  367. 

claims  in  favor  of,  barred,  when,  307. 
deed  in  trust;  action  for  residuary  interest  in.  391  (4). 
disabilities ;  cumulative,  304. 

must  exist  when  right  of  action  accrues,  365. 

persons  under,  not  barred,  when,  362. 
does  not  run  against  infants,  insane  persons,  etc.,  when,  362. 
entries  of  land  ;  statute  makes  void,  when,  1731. 
false  imprisonment ;  action  for,  barred,  when,  397. 
fees;  action  by  officer  to  collect,  barred,  when,  395  (8). 
fraud  or  mistake;  action  for  relief,  barred,  when,  395  (9). 
guardian  bond ;  action  barred,  when,  393. 

homestead  allotted ;  judgment  against  homesteader  not  barred  by,  085. 
Infants  not  affected  by,  362. 
judgment ;  action  upon,  barred,  when,  391,  392. 

against  nonresident  on  substituted  service  of  summons,  defendant  has 
how  long  to  defend,  449. 

docketed,  lien  for  what  time,  574-570.     See  Judgment. 

never  barred  when  homestead  allotted.  685. 

order  set  aside  for  mistake,  etc.,  in  what  time.  51.3. 
laborer's  action  against  railroad  for  construction,  barred,  when,  2018. 
libel ;  action  for,  barred,  when.  397. 
liens ;  action  to  enforce,  barred,  when,  20.33. 
mills;  time  in  which  owner  allowed  to  build.  2129.  21.30. 
misdemeanors  ;  criminal  action  for,  barred,  when,  3147. 
mortgage;  action  for  redemption  of,  barred,  when,  391  (3). 

foreclosure  of,  barred,  391  (3).  1044. 
new  promise  to  pay,  effect  of,  on,  371. 
nonsuit ;  action  after,  brought,  when.  370. 
official  bond ;  action  on,  barred,  when,  .393. 
order  or  decree;  action  on,  bnrrefl,  when.  391. 
personal  property;  action  for  taking,  detaining,  etc..  barred,  39.5. 
personal  representative  ;  action  against,  barred,  when,  41,  93,  94,  .307,  .392 ( 21 . 

barred  from  proving  book  nccomit,  wlien.  1623. 
persons  under  disability.  362,  363. 
pleaded  ;  by  answer,  300. 

by  insane  part)',  deemed,  .361. 

i;!(i6 


INDEX. 

LIMITATIONS,  STATUTE  OF— continued : 

possession  for  twenty  years  without  color,  barred,  384. 

power  of  sale  in  mortgage  or  trust  deed  for  creditors,  barred,  when,  1044. 

prisoner  escaping,  action  for,  barred,  when,  397  (4). 

quo  warranto,  to  try  title  to  office,  barred,  when,  834. 

railroad  construction ;  action  for  damages  caused  by,  baiTed,  394. 

railroad  violating  rules  of  corporation  commission  to  injury  of  person, 

action  for,  barred,  when,  1091. 
right  of  way  ;  title  to,  never  acquired  by,  388. 
real  property ;  actions  concerning,  barred,  when.  380-389. 

bought  at  tax  sale,  recovery  barred,  when,  395  (10),  2909. 

entry  of,  must  be  followed  by  action,  when,  38.5. 

possession  of ;  bars  state  from  suing,  when,  380,  381. 
bars  individual  from  suing,  when,  382,  384. 
under  color  of  title,  bars  action,  when,  380,  382. 
within  twenty  years  before  bringing  action  necessary,  383. 

redemption  of,  sold  at  tax  sale.  baiTed,  when,  2913. 

trespass  on;  action  for,  barred,  when,  39.5  (3). 
sealed  instrument,  action  on,  barred,  391  (2). 

shipper's   application   to  corporation  commission   for   refunding  of   over- 
charge recovered  from  railroad ;  barred,  when,  1085. 
slander ;  action  for,  barred,  when,  398. 
statutory  liability ;  action  on,  barred,  395. 
streets  and  highways ;  title  to,  never  acquired  b.v,  389. 
sureties  on  fiduciary  bonds;  action  against,  barred,  when,  395T6). 
surveys  and  plots ;  action  to  correct  errors  in,  barred,  when,  1738. 
taxes,  land  sold  for;  action  to  recover,  barred,  395  (10),  2909. 

foreclosure  of  lien  for,  barred,  2912. 
time  not  counted,  368,  369,  379. 
tort ;  action  for,  barred,  when,  395. 
trespass  under  color  of  office,  action  on,  barred,  397. 
university ;   action   against,   for   money   paid  by   personal   representative. 

barred,  153. 
usury;  action  for  penalty  for,  ban-ed,  when,  396  (2). 
widow's  year's-allowance;  action  for,  397  (5). 
wrongful  death ;  action  for,  barred,  when,  59. 

LIMITED  PARTNERSHIP : 

formed  how  ;  liabilities  attaching,  2521-2539.     See  Partnership. 

LIQUORS: 

adulteration  of ;  may  be  made  by  physicians,  etc.,  3513. 

selling,  knowing  to  be  adulterated,  misdemeanor,  3512. 

selling  recipe  for,  felony,  3513. 
anti-jug  law,  2080,  3518. 

counties  to  which  it  applies,  2080. 

does  not  prohibit  shipping  to  licensed  dealers,  2080. 

effect  on  bitters  and  alcoholic  medicines,  2080. 

effect  on  di-uggists,  2080. 
bitters,  alcoholic ;  effect  of  anti-jug  law  on,  2080. 
brandy,  wine,  cider ;  manufacture  and  sale  allowed,  when,  2061. 
certain  contracts  concerning  sale  of,  must  be  written.  977. 
county  commissioners;  power  of,  to  license  sale  of,  1318  (18),  2059,  2064. 
"dealer  in  intoxicating  drinks"  construed.  3524. 

delivery  of,  permit  led  to  druggists,  etc.,  in  prohibited  territoiy.  2080. 
dispensary;  estalilisliment.  management,  etc.,  2074-2078.     See  Dispensaries, 
druggists;  failing  to  keep  record  of  sale;  misdemeanor,  3516. 

licensed  to  sell.  when.  2063. 

refilling  prescription  without  written  order,  misdemeanor,  .3519. 

selling  except  on  physician's  prescription,  misdemeanor,  3519. 


INDEX. 

LIQUORS— cwj«fn«fc(7  ; 

elections  to  determine  manner  of  controlling  traffic.  2009-2073.     See  Elec- 
tions, 
evidence  prima  facie  of  making  or  dealing  in.  \ylien,  2000. 
gambling  allowed  in  bouses  wbere  sold :  misdemeanor,  371C. 

person  convicted  forfeits  license.  3710. 
giving  away,  at  election ;  offender  gnilty  of  misdemeanor.  3389. 
grand  jury  furuisbed  witb  list  of  dealers  in,  2827. 
illicit  shops,  officers  must  subpa-na  witnesses  to  discover,  3721. 
"incorporated  town  of  1000  people"  detined  under  tbe  Ward  Law,  2058. 
intoxicated  person  entering  train,  etc..  after  forbidden  ;  misdemeanor,  3757. 
"intoxicating  liquors"  defined  under  anti-jug  law.  2080. 
license  from  United  States  evidence  of  manufacture,  etc..  wben,  2060. 
license  to  sell ;  necessary,  wben,  2002. 

application  for  license  contains  wbat,  2004. 

form  of  license.  2006. 

bearing  of  application ;  procedure,  2005. 

issuance  of  license ;  tax.  etc.,  2066. 

posted  in  place  of  business,  2007. 

procedure  to  bave  license  revoked,  2068. 
list  of  dealers  in,  furuisbed  grand  .jury,  2827. 
local  option  elections,  2009-2073.     See  Elections, 
manufacturing  and  rectifying  of:  allowed,  wbere.  2058,  2059. 

allowed  in  town  of  1000  people  with  two  policemen,  2058,  2059. 

brandy;  allowed,  wben,  2001. 

cider,  etc.,  allowed,  wben,  3521. 

duty  of  police  where  allowed,  2059. 

report  of  police  goes  to  solicitor,  2059. 

prohibited  in  certain  territory.  2058.  3521. 

town  not  complying  witb  requirements,  license  revoked,  2059. 

wine  from  fruit  allowed,  when.  2001. 
minor  child  being  sold :  seller  liable  to  parent,  when,  .3525. 
officer's  duty  when  informed  of  illicit  still.  3533,  3534. 

required  to  seize  still,  etc.,  when,  3533. 
permitting  manufacture  of,  on  one's  premises;  misdemeanor,  35.33. 
physicians  giving  prescription  for,  except  for  sickness ;  misdemeanor,  3527. 
"place  of  sale"  of,  defined,  2080. 
poisonous  ;  manufacture  and  sale  of,  felony,  3522. 

prima  facie  evidence  of,  wben,  3522. 
public  drunkenness  in  certain  counties ;  misdemeanor,  3733. 
sale  of  brand.v.  cider,  wine  allowed,  when,  2002. 
sale  of,  place  of.  2080. 
seizure  of  still,  etc.,  required,  when.  .3533. 

turned  over  to  United  States  officers,  3533. 
selling ;  in  incorporated  city  without  license :  misdemeanor,  3529. 

in  prohiliitinn  territory:  niisdonieanor.  3518. 
towns  liaviiig  ilisjicnsary  :  misdemeanor,  .3.531. 

on  Sunda.v  ;  mi.sdemoanor.  'AXV2. 

or  giving  away:  near  political  speaking;  misdemeanor.  .3.528. 
to  inmate  of  asylum  or  penitontiar.v ;  misdemeanor.  3517. 

outside  of  incorimrated  town  ;  misdemeanor,  3.530. 

to  minoi's  ;  niisdomoanor.  3.524. 
solicitor's  duty,  when  snsi)Octing  illicit  sale  or  mannf.achu-e.  .3.53-1. 
towns  may  tax  dealers  in.  2924. 
trainmen  intoxicated  on  duty,  misdemeanor.  37.58. 
United  States  license  as  evidence  against  offender,  wben.  2000. 
unlawfuU.v  jirocuring.  for  .-inotber.  misdemeanor,  3.5.34. 
wine:  sale  of.  .Mllowod.  when.  "2062. 

.selling,  in  unl.iwfid  manner,  misdemeanor.  .3.5.3.5. 

seller  of.  allowing  drunkenness  on  ]ir(Mnises  ;  misdemeanor.  3.535. 


INDEX. 

LIS  PENDENS: 

Buncombe  county  :  requiremeuts  in.  as  to  notice  of,  4G4. 
notice  of ;  filed  wliere  and  wlien,  4G0. 

cancelled,  when  and  how,  403. 

effect  of,  on  subsequent  purchasers,  402. 

ineffectual  unless  action  prosecuted  in  sixty  days.  461. 

LIVE  STOCK: 

l)rand  lor  cattle;  owner  of,  must  register,  3028.     See  Trademarks, 
cattle,  driven  in  stock-law  territory;  crops  injured,  3321. 

action  for,  barred,  when,  3321. 
defined,  1681. 
driving  another's,  out  of  range,  misdemeanor,  3314. 

indictment  for,  need  not  name  owner,  3314. 
dying  of  contagious  disease;  owner  failing  to  bury,  misdemeanor,  3298. 
glanders  or  farcy,  stock  diseased  with :  not  killing,  misdemeanor,  3296. 
horses ;  entering  for  races,  out  of  class,  misdemeanor,  3429. 

exhibiting  stud.  etc..  near  religious  meeting;  misdemeanor,  3705. 

larceny  of,  3.50.5,  3.509. 
Injury  to ;  in  enclosure  without  lawful  fence,  misdemeanor,  3313. 

feloniously,  for  fraudulent  purposes ;  misdemeanor,  3.504. 

running  in  the  range,  misdemeanor,  3314. 
killed  by  railroad,  negligence  presumed,  264.5. 

killing  in  the  range  and  not  showing  ears,  etc. ;  misdemeanor,  3315. 
uiismarking  for  fraudulent  purposes,  felony,  3317. 
owner  failing  to  pen  hog  with  cholera,  after  notice,  3297. 
pedigi'ee  of  breeding  animal ;  false  representation  of.  3307. 
poisoning,  by  leaving  shrubs  exposed.  3318. 
quarantine  laws  concerning.     See  Quarantine, 
railroads  failing  to  construct  cattle-guards  ;  misdemeanor,  3753. 
registration  of,  procured  fraudulently ;  misdemeanor.  3308. 
running  at  large.     See  Stock  Law. 

selling,  knowing  to  have  contagious  disease ;  misdemeanor,  329.5. 
shipping,  on  Scuppernong  river,  illegally.  3675. 
stallion,  etc.,  allowing  to  run  at  large ;  misdemeanor,  3.323. 
stoclv  law ;  violating.     See  Stock  Law. 

strays ;  person  not  complying  with  law  of ;  misdemeanor,  3306. 
toling,  into  stock-law  territory ;  misdemeanor,  3309. 
towns  may  levy  tax  on,  2924. 

transported  across  quarantine  line;  misdemeanor,  3294. 
turning,  out  of  stock-law  territory ;  misdemeanor,  3322. 

LOCAL  OPTION : 

elections  concerning  regulation  of  liquor  traffic.      See  Elections. 
selling  liquors  in  local  option  territory,  misdemeanor,  3518,  3519. 

LOST  DEEDS  AND  WILLS  :    See  Burnt  and  Lost  Records ;  Evidence. 

LOST  RECORDS  :     See  Burnt  and  Lost  Records  ;  Evidence. 

LOTTERIES : 

advertising ;  misdemeanor,  3725. 

buying  or  selling  tickets,  or  stock  in,  or  aiding,  misdemeanor,  3727. 

conducting,  or  aiding  in  any  way,  misdemeanor,  3726. 

raffling  off  houses  or  other  property ;  misdemeanor,  3726. 

LUNATICS  :    See  Insane  Persons. 


INDEX. 

LYNCHING : 

tost  of  Investigation,  and  trial  of  lyneliers ;  who  pays,  12S8. 
entering  or  conspiring  to  enter  jail  to  kill  prisoner,  felony,  3698. 
investigation  of ;  by  solicitor,  32U0. 

person  probably  guilty  bound  over  to  court,  3200. 
participants  in;  must  testify,  3201. 

not  excused  on  ground  of  self-incrimination.  1038,  3201. 

testifying  for  state,  pardoned  of  the  offense,  1038,  3201. 
sheriff's  duty  to  prevent,  2S25. 
venue  of  criminal  action  for,  3233. 
witness  failing  to  attend  and  testify  as  to,  misdemeanor,  .3099. 

Mcculloch : 

evidence  necessary  to  support  title  under,  1600. 

grant,  or  certified  co]iy,  from,  sufficient  evidence,  when,  1001. 

MAGISTRATE :     See  Justice  of  the  Peace. 


disabling  another's  body :  without  malice  aforethought,  3020. 
with  malice  aforethought,  3627,  3636. 

MAINTENANCE : 

bastard  child ;  execution  against  the  father  for,  261. 
bastardy  proceedings ;  decree  in,  for,  255. 

MALICIOUS  INJURY: 

to  gas  plant,  fixtures,  pipe  lines,  etc.,  misdemeanor,  3071. 
offender  liable  to  forfeiture,  3071. 
jjersonal  property,  3676. 
real  property,  3677. 

MALICIOUS  PROSECUTION: 

cost  in  action  for  damages  for.  allowed  to  whom,  1204  (-t),  1266. 

MALPRACTICE : 

justice  of  the.  peace  guilty  of,  removed  from  ofliee,  1414. 

MANDAMUS : 

application  for  writ  of,  made,  how,  822,  823. 

contested  election  ;  judgment  in,  enforced  by  writ  of.  841. 

corporation  commission;  judgments  and  orders  enforced  by,  1080,  1081. 

plaintiff  seeking  other  than  judgment  for  money ;  hearing,  when,  824. 

MANSLAUGHTER:     See  Murder  and  Manslaughter. 

MARL  BEDS : 

failure  to  inclose ;  misdemeanor,  3796. 

MAItRIAGE : 

bar  to  prosecution  for  seduction,  3354. 

bigamy  ;  defense  to,  that  husband  or  wife  not  heard  from  in  seven  years, 

.3301. 
ceremony  of,  performed  by  whom,  and  how,  20S1. 
consanguinity  prevents,  when,  2084. 

contracts  relating  to,  must  be  jiroved  and  registered,  985. 
declared  void,  when,  1560,  2083. 
defined,  2081. 

degrees  of  kinship  ascertained,  how,  as  to,  2084. 
dissolved.     See  Divorce. 

1310 


INDEX. 

.\  [  A  I ;  RI  AGE — con  t  in  tied : 

(■vidence ;  husband  or  wife  competent  to  prove  marriage,  when,  1630. 
license  for ;  fee  of  register  for  issuing,  2776. 

form  of,  2(189. 

issued  by  register  of  deeds,  when,  2088. 

unlawfully  issued,  penalty  on  register,  2090. 

not  necessary  to  make  marriage  valid,  2081. 

original,  filed  by  register,  when,  2091. 

record  of,  kept  by  register ;  form,  2091. 

register  of  deeds  unlawfully  issuing,  penalty,  2090,  3370. 
failing  to  make  proper  records,  penalty,  2092. 

return  of,  required  under  penalty,   2087,  2089. 

secured  by  false  pretense ;  misdemeanor,  3371. 
minister,  performing  ceremony  without  license ;  misdemeanor,  2087,  3372. 

failing  to  return  license  to  register  in  time,  penalty,  2087. 

forfeits  $200  to  any  person  suing,  2087. 
person  marrying  female  under  foiu'teen  years  of  age ;  misdemeanor,  3368. 
settlement  in  consideration  of,  must  be  proved  and  registered,  985. 
slaves ;  marriage  of,  validated,  when,  2085. 
A-oid,  when ;  proviso,  1560,  2083. 
what  constitutes,  2081. 
white  person  marrying  negro ;  marriage  void,  2083,  3369. 

guilty  of  miscegenation,  3369. 
who  may  marry,  2082. 

who  may  not  marry,  2083,  2084.  -  -   -    - 

will  revoked  by,  when,  3116. 

MAIiKIAGE  SETTLEMENTS: 

contracts  or  conveyances  as,  must  be  registered,  985. 
void  as  to  existing  creditors,  963. 

MARRIED  WOMAN: 

abandoned  by  husband ;  effect  on  rights,  2117. 

may  get  alimony  pendente  lite  without  notice,  1566. 

when  lunatic ;  allowance  made,  1895. 
abduction  of,  felony,  when,  3360. 

woman's  testimony  alone  suflicient,  3360. 
ad\erse  possession  not  counted  against,  except  prior  to  Feb.  13,  1899,  303. 
alimony.     See  Alimony, 
ante-nuptial  debts  of,  liable  for,  2101. 

husband  not  liable  for,  2103,  2106. 
attempt  to  carnally  know,  by  personating  husband,  felony,  3625. 
bank  checks  may  be  drawn  by,  2095. 
canially  knowing  by  personating  husband,  felony,  3624. 
contracts  of,  must  be  with  husband's  written  consent ;   exceptions,  2094- 
2096. 

with  husband ;  void,  when,  2107. 
valid,  when,  2108. 
conveyances  by,  9.52-958,  2096,  2097,  3086.  ' 

probate  of,  1003,  1004. 
corporate  stock  held  by.  voted,  how,  1185. 

death  of,  presumed  after  seven  years  absence  and  not  heard  from,  3361. 
deemed  free  trader,  when,  2116-2118. 
deposit  by,  in  bank,  2095. 

doing  business  in  husband's  name ;  requirements,  2118. 
dower  ;  generally,  3083-3090.     See  Dower. 

may  be  released  by,  how,  2108. 
elopement  of,  with  adulterer,  effect,  8,  2110. 
execution  against  separate  estate  of,  617. 
executrix ;  husband  gives  bond,  28. 


IXDEX. 

MARRIED  WO JI AX— co» i in iieil : 

feloniously  slaying  husband  ;  effect,  7. 

free  trader;  becomes  how  and  when,  2tl'J-211S.      See  Free  Trader. 

husband  of ;  rights,  etc.     See  Husband. 

deed  of,  without  wife,  good,  when,  059,  308."). 

joined  with  wife  as  party,  when,  4H8. 

may  defend  actions  against  wife,  21u3. 

consequences,  if  dune  in  bad  faith,  2104. 
interest  of,  in  husband's  estate,  3,  4,  T-9,  132. 

interest  barred.  7,  S,  ii.  21ij9,  2110. 
judgment  against;  how  rendcre<l,  ."iC;!. 
land  of;  conveyed  how.  9."i2,  2ii'.m;.  2u97. 

husband's  rights  in.  4,  2097,  2102,  2109,  2111. 
barred,  when,  7,  9,  1509,  2100,  2111. 

leased,  how,  2090. 

not  subject  to  sale  or  lease  b.v  husband  alone,  2097. 
liens  on  property  of,  for  labor  and  material,  2010. 
lunatic,  abandoned  by  husband ;  allowance  for,  1805. 
mortgage  of  household  effects  void  unless  executed  by,  1041. 
negotiable  instruments  indorsed  by ;  effect  of,  2180. 
not  affected  by  the  validation  of  certain  execution  sales.  640. 
private  examination  of ;  form,  1003,  1004.     See  Private  Examination. 

necessary  when,  052-958,  1003,  1004,  2096,  2097. 

word  "previously"  in,  instead  of  "privately,"  corrected,  1010. 
prosecutes  and  defends  action  how,  408. 
purchase-uioney  mortgage  need  not  be  signed  by,  958. 
separate  estate  of,  2093. 

contracts  concerning,  void  without  husband's  written  consent ;  excep- 
tion, 2094. 

conve.ved  by  deed  only  with  written  consent  of  husband,  2093. 

devised  and  bequeathed,  how,  2093,  2102. 

execution  against,  017. 

leased,  how,  2000. 

lien  on,  for  lalior  and  niaterial,  2010. 

not  liable  for  dolits  of  husband.  2003. 

savings,  etc.  ;  husband  liable  for  use  of,  when.  1.5()3,  2100. 
separating  from  husband  legally,  a  free  trader,  2110. 
statute  of  limitations  bars  acticms  aganist.  when,  363. 
tort  of ;  hu.sband  jointly  liable  with  wife  for.  210.5. 
win  of;  bequests  and  devises  in.  valid.  2093,  2008. 

proven  as  other  wills,  2098. 
witness;  competent  as,  when,  10,34.  20,36. 

not  coniiiellcd  to  testify  against  husband.  10.3.5. 

MAItSriAL.  SUPREME  COURT :     See  Court,  Supreme, 
appointed,  15.55. 
salary  of,  2770. 

MARTIN'S  COLEECTION : 

private  acts  published  by  Martin  rercivcd  as  evidence.  1,503. 

MASTER  AND  SERVANT: 

api)rentice.  100-206.     See  .\|iprentice. 
enticing  servant  to  leave  mastoi';  misdemeanor,  3.36.5. 
fellow-sorvani   law  aliolishod  as  to  railroads.  2(>46. 
harboring  servant  who  ludawfuUy  left  master;  misdemeanor.  :VM'>. 
hiring  Servant  under  contract  with  another;  misdenicanor.  3374. 
servant  converting  master's  goods;  larceny,  3499. 
embezzling  property  of  master,  3400. 


INDEX. 

MAYOR : 

chosen,  bow  and  when,  2931. 
court  of,  2934. 

appeal  from,  to  superior  court,  2935. 

mayor  must  certify  ordinance  up  to  court,  2936. 

fees  2934. 

jurisdiction  of,  2934,  2935,  3059. 

procedure  in.  same  as  justice's  court,  2934. 

sentence  may  be  to  worli  on  street,  2937. 
no  woman  worlced  on  street,  2937. 
duty  with  reference  to  executing  law  against  gambling,  371G. 
oath  of  office,  2932. 

presides  at  commissioner's  meetings,  2933. 
pro  tempore,  chosen  from  commissioners,  2933. 
warrants  issued  by,  when,  3156-31G2. 

MEASURES  :     See  Weights  and  Measures. 

MECHANIC'S  LIEN :     See  Lien. 

MEDICAL  SCHOOLS : 

dead  bodies ;  officers  not  performing  duty  in  distributing  among ;   misde- 
meanor, 35G7. 

MEDICINE: 

physicians,  etc.  See  Physicians  and  Surgeons, 
practicing,  without  license,  misdemeanor,  3645. 
sale  of.     See  Pharmacists.  , 

MERIDIAN  MONUMENTS : 

injuring,  etc.,  or  not  performing  duties  regarding ;  misdemeanor,  3743. 
surveyor  must  test  needle  by,  how  and  when,  3076,  3077,  3079. 

MILITARY  :     See  National  Guard  ;  also  Volume  II. 

MILLDAMS : 

abatement  of,  as  nuisance,  when,  2142. 
injury  to,  or  obstruction  to  race,  pxmished,  how,  3678. 
obstructing  passage  of  fish,  2461-2463,  2473,  2474,  2476,  2479. 
owner  failing  to  keep  gate  and  slope  in  ;  misdemeanor,  3383. 
proceedings  for  right  to  build,  and  back  water,  2131-2140. 

MILLS,  PUBLIC : 

damages  for  erection  of  mill;  proceedings  to  recover,  2141. 
judgment ;  binding  five  years,  when,  2143. 
binding  one  year,  when,  2144. 
final ;  who  pays  cost ;  execution,  2145. 
defined.  2119. 
establishment  of  water  mill,  2122-2130. 

built,  when  allowed,  within  what  time,  2129. 
commissioners  to  locate,  appointed.  2123. 
compensation,  2794. 
duty  of,  2125. 

organization  of  commissioners,  2124. 
report  of,  2120. 
sworn,  2125. 
not  allowed,  when.  2127,  2137,  2138. 
power  of  court  upon  return  of  rejiort,  2128. 
rebuilt  when  destroyed,  within  wliat  time,  2130. 
summons  issued,  served  on  whom,  21'22. 

Rev.  Vol.  1—79  1313 


TXDEX. 

MILLS,  rvmAC—^'oiitiiiKcil: 
measures  kept  at,  2121. 
miller:  must  s>'ii"l  aiconlini;  to  tuiii.  ■JIL'I). 

must  have  measures  tested  auU  sealed.  .307.3. 
new  mill  damairiuK  water  of  old.  renied.v,  2V.\S. 

obstructiun  di-aiiis,  etc..  after  iiroeeedinj;  estaMishiug :  misdemeauor.  33S1. 
one  protei-ted  af.',-iiust  damages  from  another,  how.  L'1.3S. 
owner  of:  proieeiliuf;  liy.  to  ohtain  water  rights,  ete.,  1!1.">1. 
commissioners  api)oiuted,  2133. 
fees  of.  2140. 
oath  and  duty  of.  2134. 
damages  arrived  at,  213.5. 
petition  contains  what.  2132. 

report  of  connnissioners ;  not  confirmed,  effect,  213fi. 
conlirnied  :  owner  may  enter,  etc..  2137. 
registered.  21.30. 
failing  to  keep  up  necessar.v  bridges;  misdemeanor.  2007.  2703.  3772, 
3773. 
toll  dishes :  keeping  fal.se.  misdemeanor.  3070. 
toll ;  quantity  taken  as,  2120. 

taken  l)y  weight  or  measure.  2121. 

MINES  AND  1MININ(J :     See  Volume  II. 

obstructing  drains  used  in  mining:  misdemeanor.  .3380. 

partition  of  mineral  intei-ests :  iiroeedure.  2488. 

person  killed  in  mine;  coroner  refusing  inquest,  mi.sdemeanor,  3797. 

phosphate  rock  :  exclusive  right  to  mine,  granted,  17.")1-1753. 

bond  for  payment  of  royalty  required,  1753. 

ro.valty  of  $1  per  ton  charged,  17.")2.  1753. 
regulations  concerning  duties  of  miners,  etc.,  3707. 

violation  of  ;  misdemeauor,  3707. 

MINISTER  OF  THE  GOSPEL: 
exempt  from  .iury  duty,  1080. 

failing  to  make  proper  return  of  marriage  license,  misdemeanor.  3:!72. 
marrying  white  person  and  negro  person,   misdemeanor,  3:'.7(t. 
performing  marriage  ceremony  without  license,  misdemeanor.  3372. 

MINOUS  :     See  Child ;  Infants. 

aiding,  to  obtain  cigarettes;  misdemeanor,  3805. 

apprenticed,  how,  184-20(i.    See  Apprentice. 

childre-n  ;  general  status  of.     See  Child. 

contractor  defrauding,  of  wages ;  misdemeanor,  342Sa. 

enticing,  out  of  state  without  consent  of  parent;  misdemeanor,  3ii30. 

guardian  for.     See  Guardian. 

owner  of  barroom,  etc..  allowing,  to  enter;  misdemeanor,  3720. 

procedure  in  court  concerning.     See  Infants. 

])urchasing  liquor  from  dispensar.v  for ;  misdemeanor.  .3."23. 

selling  or  giving  cigarettes  to.  niisdemeanor.  3,S()4. 

deadl.v  weapon  of  any  kind  to,  misdemeanor.  .3832. 

licjuor  to,  misdemeanor,  .3524. 

sale  prima  facie  evidence  of  knowleilge  of  .age.  3.524. 

MISI?I{ANDIN(;  :     See  Foi'gery. 

MISCE(;ENATI0X: 

jiistice  marrying  white  person  and  negro;  misdemeanor.  .3.370. 
minister  marrying  wliile  pei-son  and  negro:  misdemeanor,  ."i;!7(). 
i'egist(M'  issuing  license  to  while  ]ierson  and  negro;  misdemeanor.  3370. 
white  person  marrying  negro,  guilty  of  infamous  crime,  .'il'.CO. 

1314 


IXDEX. 

JIISDEMEAXOR: 

punished  how,  where  statute  does  not  iiresti-ibe,  3293. 

MISJOINDER  : 

lUMuurrer  for,  being  sustained,  action  divided.  47(i. 
:;idund  for  demurrer  to  couiiJlaint,  474. 

MISMARKING  : 

cattle  and  live  stock  for  fraudulent  purpose ;  felony,  .1317. 

MISREPRESENTATION  :     See  False  Pretense  ;  Fraud. 

MISTAKE: 

.iudgnient,  order,  etc.,  set  aside  for,  when,  513. 
limitations,  statute  of,  bars  action  for  relief  for,  395. 
bettins  to  run  from  what  time.  395. 

MONEY : 

administrator  pays,  belonging  to  distributees,  to  clerk,  when,  14.").  140. 

collected  by  road  overseer,  used  how,  2721. 

contest  over,  paid  for  right  of  way,  what  done,  2591. 

description  of,  in  bill  of  indictnient.  .3251. 

e.xecutor  of  deceased  guardian  iiays  ward's,  to  clerk,  1794. 

fees  not  called  for,  used  as  county  revenue,  923. 

limitations,  statute  of,  does  not  affect  bank  bills,  etc..  .377. 

report  of  clerk  of  funds  on  hand,  918,  919. 

sheriff  pays,  collected  on  execution,  to  whom,  2821. 

MONUMENTS : 

defacing  or  removing ;  misdemeanor,  3080. 

erected  in  public  grounds ;  iujur.v  to,  misdemeanor,  3742. 

meridian,  3070.  3077,  3743.     See  Meridian  Monuments. 

JIORAVIANS : 

atRrm  in  court  instead  of  being  sworn.  2350.  23.58. 

MORTGAGES : 

betterments  not  alkiwed  in  action  liy  mortgagee,  000. 

copies  of.  certified  as  evidence.  1598. 

corporation,  for  purpose  of  reorganization.  1221. 

foreclosure  of.     See  Foreclosure  of  Jlortgages  and  Trust  Deeds. 

guardian's  right  in,  survive  to  his  succe.ssor,  1034. 

given  in  lieu  of  bond,  20.5-271.     See  Bonds. 

luisband  and  wife  executing,  on  land  ;  how  proven,  952,  1003,  1004. 

lieu  for  advances  on  crop  created  by  mortgagors  in  possession.  2053. 

more  than  one  mortgagee :  sun-ivor  executes  power  of  sale,  1033. 

mortgagee  dying,  who  executes  power  of  sale  iu,  1031. 

mortgagee's  rights  survive  to  his  representative,  when,  1031. 

personal  property  conveyed  by.     See  Chattel  Mortgage. 

jiower  of  sale  in  ;  barred,  when,  1044. 

given  in  lieu  of  bond,  who  executes.  205,  206,  208. 
jiurchase  mone.v,  wife  need  not  .ioin  in.  958.  .3085. 
railroads  may  l)orrow  money  by  mortgaging  property.  2507  (10). 
redemption  of;  action  for,  barred  when,  .391. 
registration  of :  required,  to  conve.v  clear  title.  982. 

h,v  register  of  deeds  as  soon  as  filed.  2058. 
real  propert.v  sub.iect  of:  must  be  written.  974. 
released  and  cancelled,  how,  104(i. 


INDEX. 

MORTGAGES— continue!]  : 

reiireseutative  of  deceased  mortgagee  may  reuouuce  and  substitute  be  ap- 

I)ointed,  1038. 
sales  under ;  advertised,  how,  where  and  how  long,  G41,  1042,     See  Sales, 
advertisement  must  definitely  describe  laud,  1043. 

MORTUARY  TABLES  : 

expectancy  of  life  indicated  by,  1C2G. 

MOTIONS: 

affidavit  in  support  of,  or  against,  compelled  when,  875. 

definition  of,  874. 

determined  in  ten  days,  in  certain  proceedings,  876. 

entry  and  record  of,  clerk's  fee  for,  2773. 

heard  at  criminal  terms,  when,  1507. 

made  to  whom,  and  where.  874. 

notice  of,  served  ten  days  before  hearing,  877. 

provisional  remedy ;  motions  to  vacate  or  modify,  have  preference,  874. 

MOUNTAIN  TROUT : 

catching,  for  sale,  in  Cataloochee  creek  ;  misdemeanor,  2480. 

near  Grandfather  mountain,  2482. 
seining  for,  or  catching,  during  certain  months :  misdemeanor,  3418. 
throwing  sawdust  in  certain  streams  containing ;  misdemeanor,  3382a. 

MUNICIPAL  CORPORATIONS: 

actions  against ;  demand  must  be  made  before  bringing,  1384. 

in  what  name  brought,  1310,  2916. 
annual  statements  of  receipts  and  disbursements  of,  published,  2973. 
boards  of  commissioners  of;  chosen  how,  2919. 

failing  to  appoint  chief  of  fire  department ;  misdemeanor,  3007. 

number  composing,  2917. 

number  changed,  how,  2922. 

oath  of,  2920. 

powers  of,  2923,  2924,  2925,  2928-2930. 

vacancy  in  board,  filled  how,  2921. 
board  of  health  of ;  duty  as  to  contagious  diseases,  3440. 
bonds  of ;  exemption  from  taxation,  2970. 
buildings;   regulations  as  to   erection,   etc.,  2981-3011.     See   Buildings   in 

Towns, 
burning  of  building  of ;  felony,  3.337. 
claims  against,  must  be  presented,  when,  396. 
"commissioners"  means  "aldermen,"  when,  2918. 
constable ;  appointed,  how,  2925. 

oath  of,  2938. 

powers  of,  generally,  2939. 

tax  collector ;  bond,  2940. 

monthly  settlements  by,  2972. 

failing  to  make ;  misdemeanor,  3609. 
corporate  powers  of,  2910. 

how  exercised,  2917. 
debt  of ;  none  except  for  necessaries,  but  by  vote,  2974. 

limited  to  ten  jier  cent,  of  assessed  values,  2977. 

payment  of.  how  made ;  proviso,  2975. 
depositions  in  hearings  before  authorities,  16.^)3. 

dispensaries  established,  etc.,  2009-2071,  2075-2078.     See  Dispensaries, 
elections  In  towns  and  cities.  2944-29(i7.     See  Elections, 
electrical  inspector  apjiointed  by,  2983. 

electric  com]ianies  have  franchises  over  streets  of;  proviso,  11.33. 
entitled  to  conveyance  for  land  purchased  at  enforced  sale,  2910. 
fire  department,  chief  of;  commissioners  must  appoint,  3607. 
1316 


INDEX. 

MUNICIPAL  CORPORATIONS— cwiim«ed; 
Are  limits  must  be  established  by,  2985. 

gambling ;  town  officers  not  executing  law  as  to ;  misdemeanor,  3716. 
inspector  of  buildings  appointed  by,  2982. 
lien  of,  for  taxes,  foreclosed  by,  2912. 
liquors ;  manufacture  and  sale  regulated  by,  2058-2080.     See  Liquors. 

lieeuse  to  sell,  issued  bow,  after  "saloons"  carried,  2073. 
local  option  elections,  2069-2073.     See  Elections, 
markets  established  and  regulated,  how,  2928. 
mayor ;  chosen  how,  2931. 

court  of ;  jurisdiction,  2934,  2935. 

appeal  from,  to  superior  court,  2935. 

ordinances  must  be  certified  up,  2930. 
sentence  of,  may  be  to  work  on  streets,  2937. 

oath  of  othee,  2932. 

presides  at  commissioners'  meetings,  2933. 

salary  of,  fixed  by  commissioners,  2925. 

vacancy  in  olflee  of,  filled  by  commissioners,  2931. 
nuisances  abated  by  commissioners,  when,  2929. 
offices ;  qualifications  for,  2941. 

penalty  for  refusing  to  qualify  and  act,  2942. 

term  of,  continues  until  successors  are  qualified,  2943. 
ordinances ;  concerning  speed  of  trains  tested  by  railroad,  how,  1101. 

enforced,  how,  2935. 

how  proven  in  court,   1595. 
orders  of  commissioners  served  on  corporations,  442   (8). 
policemen  ;  appointed  by  commissioners,  2926. 

duty  of,  as  to  liquor  tralflc,  2059. 

execute  criminal  process,  2927. 

must  destroy  gaming  tables,  3720. 
property  of,   sold  bow.  2978,  2979. 

who  makes  title  to,  2980. 
railroad  ;  election  on  subscription  to,  2558-2562.     See  Elections. 

land  of  municipality  acquired  by,  for  right  of  way,  2596. 
streets  of ;  maintained  by  commissioners,  2930. 

prisoners  may  be  sentenced  to  work  on,  2937. 
no  woman  so  sentenced,  2937. 
taxes ;  collector  of,  2940. 

dogs  listed  and  taxed,  2971. 

levied  by  commissioners,  2924. 

list,  taken  by  order  of  commissioners,  2969. 

open  to  inspection ;  subject  to  correction,  2970. 

must  be  imiform  and  ad  valorem,  2968. 

none  on  farm  wagons  selling  produce,  etc.,  2928. 

person  failing  to  list,  pays  double,  2909. 
tax  sale  certificate  assigned  by.  2901. 
towns  and  cities  are  bodies  politic  and  corporate,  2915. 
tub  system  for  excrement  provided  b.v,  when,  3052. 
violating  ordinances  of ;  misdemeanor,  3702. 
water  supply  of;  olficers  failing  to  inspect;  misdemeanor,  .3048,  38G1. 

precaution  must  be  taken  to  keep  pure,  3058,  3059. 
wharves ;  line  of  building  regulated  by,  1696. 

MURDER  AND  MANSLAUGHTER: 

challenges  to  jury ;  number  allowed  defendant  in,  3263. 

number  allowed  state.  3264. 
duelling ;  aiders  and  abettors  in.  accessories  to,  when,  3629. 

person  killing  another  in  ;  murder,  3629. 
husband  and  wife ;  either  feloniously  slaying  other ;  effect,  7. 
indictment ;  how  murder  alleged  in,  3243,  3245. 

first  degree  alleged:  jury  can  find  second,  etc.,  3271. 

1.^17 


\\ 


IXDEX. 

MURDER  AND  MASaLAVGnTKll—mnliiiucd: 

injuiiii^.    etc.,   railroad,   canal,   etc..   nialicioiisly.   causing   death,    murder. 
:i7.".4. 
witliout  malice;  punislunent,  37."). 
nianslau^lliter  inuiislied.  liuw.  Sdlii. 

second  conviction,  how  imnished,  .'Minfi. 
nuirder  divideil  into  two  degrees:  defined,  .S031. 
post  mmteni  exaujination.  ordered,  how.  31.12. 
venue  in  action  of,  3234-323!).     See  Venue.  Criminal  A<tion. 
where  assault  in  one  count.v.  deatli  in  another,  .323."). 
assault  in  this  state,  ileatli  in  another,  .323(i. 
death  in  this  state,  innnaterial  where  injury  inflicted,  3238. 
verdict;  where  first  degree  murder  alleged,  3271. 

NAMES  OF  PERSONS: 

adopted  child's  name  changed,  how,  177. 
altering;  procedure  before  clerk,  2147. 

application  ;  notice,  2147. 

proof  of  good  character  filed  with,  2148. 

certificate  of  clerk  as  to,  2150. 

oul.v  allowed  once,  2147. 

order  for,  issued  by  clerk,  2149. 

record  of  proceeding  made,  2150. 
general  assembly  :  power  as  to  changing,  2140. 
"he"  means  what,  in  law  as  to  taxes,  2851. 
missi)elled,  etc.,  on  hill  or  note,  how  indorsed,  2102. 
party  to  action  unknown  ;  other  name  used,  etc.,  510. 

NATIONAL  GUAUI):     See  Volume  II. 

acting  as  oHicer  without  connnission,  misdemeanor.  3.").S8. 
families  of,  members  of,  supported  by  county,  when,  1331. 
member  of,  failing  to  return  jiroperty  of ;  misdemeanor,  3.")37,  3.")41. 
ofticer's  dut.v  to  demand  military  propert.v  withheld,  3.")40. 

])arty   failing  to  give   up,   punished,   how.   3.")40. 
organizing  compan.v  of.   without  authorit.v.  misdemeanor,  3.').38. 
person  entrusted  with  arms,  etc.,  embezzling  same;   misdemeanor,  "."4!, 

3542. 
placing  on  muster  roll  one  not  lawfully  enlisted,  etc. ;  misdemeanor,  .'J.';!!', 
wilfully  injuring  equipment  of.  etc.;  misdemeanor.  .3.").3(!.  3."i41. 


NATURE,  CRIME  AGAINST; 
punishment  for,  834'.l, 

NAVIGATION:     See  Volume  II. 

anchoring  vessel  on  range  lino  of  lights,  etc. ;  misdemeanor,  3550. 
commissioners  of  wrecks;  violating  trust:  misdemeanor,  3503. 

liable  also  in  damages,  etc..  3.")(!3. 
(li'Mgging  buoys  from   position  carelessly;  niisdenieanor,  3545. 
draw  bri<lgcs.      See  Draw   Bridges. 

encinnbcring  liocks  of  Wiiniingtou  with  logs.  etc.  :  misdemeanor.  3.547. 
erecting  artilicial  island  in  cert:iin  waters;  misdemeanor.  .3543. 
false  lights  (lis]il.iyed  on  shore  to  deceive;  felony,  34:^11. 
flats,  etc..  removed  from  docks  on  order  of  harbiirmaster.  3540. 

owner   f:iiling  to  move  on   notii'e:   misilemcanor.  3.540. 
.   harbormaster  of  Wilniinglon  ;  interfernig  with  ;  mlsdenie.-inor.  :!.5.52. 
interfering  with  buoy.s,  etc,  by  vessel,  etc..  misdemeanor,  when,  3.54i'i. 
lien  on   vessels  for  work  done  for.   2l  14( l-2( (51 . 

lumbermen  on  certain  waters  failing  1o  remove  obstructions,  etc.;  misde- 
meanor, 3.551. 
obstructing  passage  of  lioats.  <'tc.  ;  misdc .iiior.  .3.5.53.  3.5.50. 

1318 


INDEX. 

NAVIGATIOX— co/i/ZiiHcr/; 

pi'i-son  fliuling  wrecks,  etc.,  failing  to  report  same;  niisclemeanor,  3548. 
liliusjiliate  iH'ds;  graut  to  mine  doe.s  not  allow  obstructing,  1754. 
removing  boats,  tackle,  etc.,  misdemeanor,  3544. 

person  directing  to  be  done,  guilty,  .3544. 
seamen;  euticing.  away  from  vessel;  misdemeanor,  35.55. 

search  warrant  issued  for,  bow  and  wben,  3557. 
procedure  on,  3558. 

secreting  or  harboring  deserting ;  misdemeanor,  3556. 
finding  on  premises,  prima  facie  case,  .355(5. 
stevedores ;  doing  business  without  license ;  misdemeanor,  3791. 

lien  of,  for  loading  and  unloading  vessels,  2(J41. 
throwing  substance  from  vessel  in  certain  waters  ;  misdemeanor,  35G0. 
vessel;  anchoring,  on  range  line  of  liglithimsc;  misdemeanor,  3550. 

enticing  seamen  from,  misdenic.niui-,  :;."'i."i.". 

fastening,  to  bridge  over  navigable  stream;  misdemeanor,  3774. 

flats,  etc.;  not  removing  from  docks  after  notice;  misdemeanor,  3549. 

lieu  of  laborers  and  stevedores  on,  ii()4(i-2(i51.     See  Lien. 

mooring  or  fastening,  to  buoys,  etc. ;  misdemeanor.  3546. 

navigation  of ;  obstruction  to ;   misdemeanor,  2443,  3543,  3553,  3559, 
3561. 

passenger  riding  in  wrong  cabin  after  forbidden  ;  misdemeanor,  3761. 

removing,  from  mooring ;  misdemeanor,  3544. 

repairing,  in  public  docks  in  Wilmington,  misdemeanor,  3554. 

steamboat  companies.     See  Steamboats.  - 

NEGLECT ; 

excusable;  relief  in  case  of,  513. 

XEGLIGl'^NCE  : 

action  I'.ir.  liarred,  when,  59,  .395  (5),  2645. 

liaggagc;  injury  or  loss  to,  by  railroad,  i)resumption  of,  2624. 

contriliutory.  pleaded,  how,  483. 

creditor  negligent  in  collecting,  surety  discharged,  2846-2848. 

deatli  caused  by  :  action  given  for,  59,  60. 

fellow-servant  law  aliolisbed  as  to  railroads,  2646. 

ferrymen  liable  for.  when,  2709. 

gu;n-(lian"s.  etc..  liable  for,  for  failing  to  pay  tax,  2862. 

innUecjier  liable  for  loss  of  baggage  by,  1910-1914. 

presumed  when  live  stock  killed  by  cars  or  engines,  2645. 

road  overseer  neglecting  duty ;  penalty,  2724. 

NEGOTLVBLE  INSTlil'MEXTS ; 

acceptance;  check,  certified,  is  an,  2337. 
defined,  22S-2.  2289-2291,  2.337. 
deemed;  when  drawee  fails  to  return  in  24  hours.  2287. 

w-hen  bill  destroyed,   2287. 

when  promise  to  accept,  2285. 
for  honor;  liill  dishonored,  protest  necessary,  2320. 
liill   matures  when.  2316. 

contains  reference  in  case  of  need,  protested,  when,  2317. 
deemed  for  honor  of  drawer.  2313. 
failing  to  state  for  whom  ;  deemed,  how,  2313. 
how  made.  2311,  2312. 
interiireted.  bow,  231.3. 
liability  on.  2314,  2315. 
presentment,   when,   for  payment,  2318. 

delay  in.  excused  when.  2319. 
sui)ra  protest,  must  be  iirotested,  when.  2317. 
when  may  lie  made.  2311. 


INDEX. 

NEGOTIABLE  INSTRUMENTS— coniiiiueJ; 
acceptaiiue — continucO. 

holder's  right  lo  liave.  written  on  bill,  2283. 

overdue  or  dishonored  paper ;  effect  of,  2288. 

promise,  unconditional,  to  accept,  deemed,  as  to  whom,  2285. 

requirements  of,  2282. 

time  in  which  to  accept,  2286. 

when,  after  presentment,  2286. 

written  where,  2283,  2284. 

on  paper  other  than  bill,  2284. 
acceptor  of.  engages,  what,  2211. 
accommodation ;  who  is  party  to ;  liability,  2177. 
action  on,  barred,  when,  391  (2),  395. 

costs  in,  where  several  defendants,  1204. 

defendant  may  plead  satisfaction,  when,  1522. 

trial  may  be  at  return  term.  when.  484. 
alteration,  material :  avoids,  2274. 

defined,  2275. 
bank  ;  defined,  under  negotiable  instrument  law,  2340. 

instrument  payable  at,  order  to  bank  to  pay,  2237. 
bearer  defined,   2340. 
become  non-negotiable,  when,  2198,  2207. 
bill  of  exchange ;  addressed  to  whom,  2278. 

defined,  2276,  2279,  2340. 

not  assignment  of  fund,  2277. 

referee  in  case  of  need  named  in,  2281. 
blanks  in  ;  when  may  be  filled  and  by  whom,  2164. 
chapter  on,  does  not  apply,  when,  2345. 
checks  ;  certified,  an  acceptance,  2337. 

discharge  drawer  and  indorser,  2338. 

defined,  23.35. 

failure  to  present  in  reasonable  time ;  effect,  2330. 

married  woman  may  draw,  on  her  own  deposit,  2095. 

must  be  presented,  when,  2336. 

no  assignment  of  funds,  2339. 
consideration ;  absence  of,  defense  to  payment,  2176. 

failure  of,  defense  pro  tanto,  2176. 

nature  of,  stated;  law  requiring,  not  repealed,  21.55. 

valuable,  presumed  to  be,  2172,  2174,  2175. 

what  constitutes,  2173. 
construction  of,  rules  for,  2341. 

payable  to  whom,  21.58,  2159.  2191. 

time  of  payment,  2157. 
costs  in  action  on,  when  several  defendants,  12(34. 
date  of ;  deemed  to  be  true,  2161. 

holder  may  insert,  2163. 

incorrect,  does  not  invalidate,  2102. 

not  stated,  jiresunied  indorsed  before  due,  2104. 
days  of  grace  on ;  when  allowed,  22.35. 
defense  to  payment  of,  no  consideration,  2170. 
definitions  of  terms  used  in  law  of,  2.340. 
delivery  of;  after  blanks  filled,  2104. 

conclusively  presumed,  when,  2160. 

defined.  2340. 

nocossary  to  complete,  2105,  2100. 

without  indorsement,  what  is  warranted,  2214. 
discharge  of;  by  material  alteration,  2274. 

by  jiayment  to  holder  in  due  course,  2200. 
renimciation  by  holder.  2272. 

drawer,  by  failure  to  give  notice  of  dishonor,  2239. 

indorsers,  by  failure  to  give  notice  of  dishonor,  2239. 
by  neglecting  to  enforce  payment  after  notice,  2847. 

1320 


INDEX. 

NEGOTIABLE  INSTKUMENTS— con«w«e(Z; 
discbarge  of — continued. 

party   secondarily   liable  discharged,   how,   2270. 
what  constitutes,  2269. 
dishonor  of;  gives  right  of  action  to  holder,  2233. 

notice  of;  defects  of.  not  to  Invalidate,  when,  2245. 
delay  in  giving,  excused,  when,  2263. 
dispensed  with,  2262. 
failure  to  give,  effect  of.  2239,  2267. 
given  by  whom,  2240,  2241. 

by  agent ;  effect  of,  2244. 

holder ;  benefits  whom,  2242. 
party  ;  benefits  whom,  2243. 
to  whom,  2247-2251. 

personally  or  by  mail,  2246,  2253-2256. 
to  what  address,  if  by  mail,  2258. 
may  be  oral  or  written,  2246. 
not  required,  when,  2261,  2262,  2264-2266. 
time  in  which  given,  2252,  2253. 
unnecessary  to  give,  when  protest  waived,  2261. 
waived,  how  and  when,  2259,  2260. 
what  constitutes,  2232,  2298,  2300. 
drawer  of;  discharged,  when,  2239,  2338. 
engages,  what,  2210. 
may  limit  or  negative  liability,  2210. 
due  and  payable ;  at  bank  ;  effect,  2237. 
days  of  grace  allowed,  2235. 
on  demand,  when,  2157. 
time ;  how  computed,  2236. 
when,  2234. 

holidays  affect  time,  how,  2234. 
endorsement  of.     See  under  this  head.  Indorsement, 
engagement  of  acceptor,  2211. 
of  drawer,  2210. 
maker,  2209. 
exemptions ;  waiver  of,  not  authorized  by  chapter  on.  2346. 
fraud  in  obtaining,  makes  void,  2204. 
holder  of ;  biu-den  on,  to  show  in  due  course,  when,  2208. 
defined,  2340. 

has  right  of  action,  when  dishonored,  22.3.3. 
in  due  course ;  deemed  prima  facie,  when,  2208. 
title  indefeasible,  2206. 
what  constitutes.  2201,  2203,  2198. 
when  not.  2202.  2204. 
may  complete  instrument,  when,  2164. 

convert  blank  indorsement  into  special,  2184. 
sue  in  his  own  name,  2200, 
treat  bill  as  note.  when.  2280. 
presumed  to  be,  for  value,  2174.  217.5. 
holidays ;  effect  of,  on  presentment  and  payment.  2234. 
incomplete :  comjileted  by  holder,  how,  2163,  2164. 

completed  and  negotiated  without  authority ;  effect,  2165. 
delivery  of.  necessary  to  give  effect,  2166. 

presumed  when,  2166. 
not  valid  unless  delivered,  2165. 
revocable  until  delivery.   21G6. 
indorsement;  agent  making,  may  negative  liabilit.v.  2193. 
back  to  prior  party,  releases  intermediate.  2109. 
blank;  converted  by  holder,  to  special.  2184. 

indorsement  in  blank  defined,  2183. 
conditional :  effect  of,  2188. 


IXDEX. 

NEGOTIABLE  INSTUUMENTS— (■rj»///i»f i/; 
indorseuic'iit — voiiliiiiicd. 

corporation  iiulorsing.  effect,  2]Sa 
date  of.  deemed  true  date,  2101. 

undated,  presumed  before  due.  2194. 
defined,  2340. 

holder  may  strike  out ;  effect.  2197. 
Indorser.     See  under  tliis  head,  Indorser. 
Infant  indorsing ;  effect,  2180. 
kinds  of,  2182. 
made,  bow,  2179. 
married  women  indorsing.  2180. 
must  be,  of  entire  instrument,  2181. 
payee's ;  wliere  two  or  more,  219<J. 

name  wrong,  bow  indorsement  made.  2192. 
place  of.  presumed  wliere  instrument  dated,  219.5. 
qualified,  2187. 
restrictive :  defined.  2185. 

confers  what  rights,  218<i. 
.special ;  defined.  2183. 

effect  where  instrument  ]iayalde  to  bearer.  2189. 
transferred  without ;  non-negotiaiile  till  indorsed,  2198. 

instrument  indorsed,  from  wliat  time  operative,  2198. 
undated,  presumed  before  due,  2194. 
warrants  what,  2213-2218. 

where  instrument  payable  to  officer  of  bank,  etc..  2191. 
indorser ;  discliarged.  when  check  certified,  23.38. 

discliarged  :  upon  failure  to  give  notice  of  dislionor,  2239. 
except  when  notice  not  required.  22G.5. 
upon  payee,  etc.,  neglecting  to  enforce  payment,  2840-2848. 
liable  as,  when  signature  in  blank.  2213. 
order  in  which  indorsers  liable,  2217. 
presumed  to  lie.  when  signature  appears,  2212.  2213. 
witli  lUialiHcatinns.  warrants  wliat.  2214. 
wirhiiut  (lualitications.  warrants -wliat.  221."). 
"instrument"  defined  in  chapter  on.  2.340. 
interest  on.  lO.jO-l'.i.K;.     See  Interest. 

from  what  time  runs.   1952. 
interpretation  of.  2.S40,  2341.     See  inider  this  head.  Construction, 
"issue"  defined  in  chapter  on,  2340. 
law  mercliant  apjilicable  to.  2.344. 
liable  on  ;  who  arc.  iirimarily,  2342. 
liability  of  acceptor  on.  2211. 
of  drawer,  2210. 

indorsers,  2212-2218. 

order  of  liability  of,  2217. 
maker,  2209. 
limitations,  statute  of;  bars  action  on,  when,  391    (21.  .395. 
maker  of,  engages  what,  2209. 

name  of  iiayee  wrong;  bow  instrument  indorsed.  2192. 
negotiation  of;  by  indorsement,  217S-2199. 

back  to  prior  jiarty.  effect  on  intermediate.  2199. 
what  is.  21 78. 
notice  to  transferee  of  infirmity  in.  effect,  2203. 

actual  knowledge  necessary.  22(15. 
once  negotialil(\  conlinnes  initil  discharged.  2190. 
payable;  to  bearer,  when.  21.59. 

corpoiMtidii  when   made  to  ollicci-  of.  2191. 
ni-cler,  payee  must  be  iiidii'ated.  215S. 
<in  demand,  wben.  2157. 
when:   liiiir  compnttMl.  22.14.  22:!(!. 


INDEX. 

NEGOTIABLE  IXSTKUMEXTS— «j/(n/i«(.'(/; 
piiyiuent  of;   for  honor,  after  protest,  2321. 
effect  on  subsequent  parties,  2325. 
must  be  attested  bow,  2322,  2323. 
payer  entitled  to  bill  and  protest,  2327. 

refusing  payment  supra  protest;  forfeits  certain  rights,  2320. 
two  or  ujore  offering  to  pay,  which  preferred,  2324. 
wlien  deemed  in  due  coui'se,  2238. 
"person"  defined  in  chapter  on,  23-40. 
pleaded,  how,  4!)U. 
presentment  of ;   for  acceptance,   2203-2301. 

dislioiiored  by  non-acceptance,  holder's  recourse,  2301. 
excused  and  bill  dishonored,  when,  2208,  2300. 
failure  to  make ;  effect,  2294,  2295.    ' 

excused  when,  2297. 
made,  bow,  2295. 

when,  2294,  2296,  2297. 
necessary,  when,  2293. 
time  allowe<l  drawee  to  accept,  2286. 
for  payment.  221'.»-22.38. 

delay   in   making,   when   excused,  2230. 

made,  how,  2221,  2223,  2225,  222(i. 

necessity   for.   2210,  ■J22.S.   2220.   2231,   2301. 

not  reiiulred  to  charge  drawer  or  indorser,  2228,  2220. 

persons  [irimarily  liable  dead  ;  presented  to  whom.  2225. 

severally  liable;  presented  to  whom,  2227. 
place  for,  2222,  2224. 
time  of,   2221.  2224,  2318. 
when,  2220,  2231,  2301. 
jirimarily  liable  on;  who  are.  2342. 
promissory  note  defined,  2334. 

proof  of;  otherwise  than  by  attesting  witnesses,  1604. 
protest  of ;  acceptor  for  honor  not  paying,  2320. 
before  maturity,  when,  2308. 
dispensed  with,  when,  2309. 

excused,  when,  2309.  , 

foreign  bills  of  exchange,  2268. 
form  of,  2303,  2310. 
•       lost  bill,  copy  used,  2310. 
made  by  whom,  2304. 
necessary  on  foreign  bills,  2302. 

non-payment  ground  of,  even  after  protest  for  non-acceptance,  2307. 
not  necessary,  when,  2268. 
place  of  making,  2306. 
requirements  of,  2303-2306,  2310. 
specifies  what,  2303. 
time  of  making,  2305. 

waived  ;  notice  of  dishonor  unnecessary,  2261. 
"reasonable  time"  ;  what  is,  in  chapter  on,  2343. 
"referee  in  case  of  need"  defined,  2281. 
requirements  of,  2151. 

determinable  future  time  for  payment,  21.56. 
form,  2160. 

sum  certain,  21.52,  2154. 

unconditional  promise  to  pay,  215;'.,  21.54,  21.56. 
revocable  until  delivered,  216(5. 
secondarily  liable  on  ;  who  are,  2.342. 
signer  in  trade  name  or  assumed  name  liable  on.  2167. 
signature  to;  forger.v  of.  renders  inoiier.-itive.  2171. 
made  bv  agent,  2168,  2170. 

effect  of,  2169,  2170. 
necessary  to  make  liable,  2167. 

1.323 


INDEX. 

NEGOTIABLE  INSTRUMENTS— <;om<mi«C(?; 

Sunday,  etc..  effect  of.  on  presentment  iincl  payment.  2234. 

terms  of,  defined.  '22-i('>. 

time  in  which  notice  of  dishonor  must  be  given.  2252-2257. 

"value"  defined  in  chapter  on,  2340. 

void,  when,  2204. 

who  primarily  and  who  secondarily  liable  on,  2342. 

"written"  defined  with  reference  to,  2340. 

NEGROES : 

issue  of  certain  colored  persons  to  inherit,  155G  (13). 
marriage  between,  and  white  person.     See  Miscegenation, 
white  child  not  bound  to,  186,  201. 

NEW  PROMISE  : 

must  be  In  writing  to  revive  a  debt,  371. 

NEWSPAPERS : 

action  against,  for  libel ;  notice  to,  necessary,  2012. 

retraction  published,  actual  damages  only  recoverable,  2013. 
notices  of  sales,  entries,  etc.,  advertised  in.     See  Advertisement, 
person  communicating  libel  to :  misdemeanor,  3635. 
publication  of  process  of  courts,  etc.     See  Publication. 

NEW  TRIAL : 

.iustices'  courts  can  not  grant,  1489. 
may  be  granted,  when,  554. 
motion  for.  when  made,  554. 

refusal  of  motion ;  appeal,  587. 
superior  court  may  grant,  in  criminal  cases,  when,  3272. 

NEXT  FRIEND: 

infants,  lunatics,  etc..  sue  by,  or  guardian,  when,  405. 

NEXT  OF  KIN : 

administer  on  estate ;  right  to,  3. 

descent,  1556.     See  Heirs. 

entitled  to  notice  of  probate  of  nuncupative  will,  3127  (3). 

heirs.     See  Heirs. 

illegitimate  children  next  of  kin :  to  each  other,  137. 

to  mother.  136. 
share  in  personal  estate  of  decedent,  132. 
surplus  income  of  lunatic  goes  to,  when,  1900. 

NOLLE  PROSEQUI : 

"with  leave"  entered,  when,  .3273. 

clerk  issues  capias  after,  when.  3273. 

accused  arrested,  witnesses  subpoenaed,  3273. 
record  of,  kept  by  clork,  915. 

NONRESIDENT: 

alien  ;  property  rights  of,  182,  18.3. 

limitations  of  actions  as  to.  3G6. 

summons  served  on  :  by  publication,  when.  442. 

by  substituted  service,  can  defend  within  what  time.  449. 

personally,  how.  448. 


INDEX. 

NONSUIT: 

Hiusdale  act,  539. 

moliou  to,  wlien  plaintiff  rests  case,  539. 
new  action  can  be  brought  within  a  year,  370. 
not  allowed  after  verdict,  1520. 

NONUSER : 

corporate  franchise,  after  two  years,  liable  to  be  annulled,  119S. 

railroad  franchise  forfeited  for  nonuser,  when,  2504. 
oyster  beds,  for  two  years,  forfeits  license,  2374. 

NORTH  CAROLINA  SCHOOL  FOR  DEAF  AND  DUMB :     See  Volume  II. 
person  violating  ordinances  of ;  misdemeanor,  3695. 

NORTH    CAROLINA    SCHOOL    FOR    DEAF,    DUMB    AND    BLIND:      i 
Volume  II. 
person  violating  ordinances  of ;  misdemeanor,  3G95. 

NOTARIES  PUBLIC: 

acts  of,  attested  by  notarial  seal,  2352. 

appointed  by  governor,  2347,  2348. 

clerks  are  notaries  ex  ofBcio ;  seals,  2349. 

commissioners  of  aflidavits,  925. 

conveyances ;  probate  of,  under  private  seal ;  validated,  1012. 

expiration  of  commission ;  time  of,  must  accompany  seal,  2351a. 

fees  of,  2S00. 

oath  of,  2347,  2357,  2858,  2360. 

powers  of,  2350,  2351. 

protest  of  negotiable  instruments  by,  2304.     See  Protest. 

qualifies  before  clerk,  2347,  2348. 

NOTICE : 

actual,  of  fraud,  necessary  to  make  negotiable  instrument  void,  2205. 
administrators  give,  to  creditors  to  present  claims,  39,  40. 

serve,  on  creditors,  41. 
adverti.semeut  of.     See  Advertisement, 
bridge  owner  notilied  to  put  in  draw,  2609. 
clerk  gives,  to  creditors  of  decedent,  when.  111. 

to  relatives,  when  application  for  guardian,  1772. 

issues,  to  enforce  settlements,  etc.,  901. 
commissioners  give,  as  to  removing  county  buildings,  1318  (28),  1319. 
common  fences  removed  after  giving,  1G71. 
constable  executes,  within  jurisdiction,  938. 
dishonor  of  negotiable  instruments,  2239-2268. 
election ;  special,  called  by,  2967. 

new  registration  at ;  notice  given  of,  2950. 
entry  of  land ;  notice  of,  posted,  1708. 

executor  served  with,  when  another  presents  will  for  probate,  3123. 
garnishment  for  taxes  ;  notice  served,  2880. 
grants ;  errors  in,  corrected  after  notice,  when,  1742. 
issuing :  clerk's  fee  for,  2773. 
landlord's  notice  to  tenant  to  quit,  1984. 
libel ;   notice  to  newspaper  before  action  brought,   2012. 
lieu  ;  notice  of,  2017,  2018,  2020,  2021,  2027,  2028.  2029,  2039,  2042. 

docket  for,  kept  by  clerk,  915  (21). 

when  and  where  filed,  2026.  2028,  2035. 
lis  pendens,  400-4G4.     See  Lis  Pendens, 
motion  in  a  cause,  after  ten  day's,  877. 
must  be  in  writing,  878. 
mutilating  legal,  before  day  of  event :   misdemeanor.  3710. 

1325 


INDEX. 

uanie  of  person  ;  applicatiou  to  change,  2147. 

newspaper  served  with,  before  action  for  liliel,  J(irj. 

no  personal  claim  asaiust  defendant ;  notice  of,  fjiven,  1270. 

partnership:  of  dissolntion.  2."i;ill.  2.542. 

production  and  inspection  of  writings  enforccnl  by,  1050-1038. 

receiver's  notice  to  corjioration  creditors,  122S. 

register  of  deeds  may  mail.  2007. 

restoration  to  ciUzenshi|i ;  n<itice  of  petition,  2084. 

return  of ;  sutHcient  evidence  of  service  of,  l.")2!>. 

roads ;  notice  of  application  for.  2084.  2080,  208S. 

notice  to  W(jrk  on,  served,  how,  2720,  2721. 
sales ;  notices  of,  advertised.     See  Advertisement, 
.service  of :  by  publication,  882.     See  Publication, 
deemed,  sheriff  returning  as  executed,  880. 
on  attorney,  when  and  how,  880. 

nonresideiit,  882. 

party,  when  and  how,  881. 

road  hands,  2720,  2721. 

whom,  and  how,  879. 
sheriff's,  to  taxpayers,  of  his  rounds  to  collect,  2870. 
solicitor  given,  when  writ  of  habeas  con>us  granted,  1844. 
special  term  of  court ;  notice  of,  must  be  published,  1.51.3. 
stock  impounded :  notice  to  owner,  108O. 
strays ;  register  gi\'es  notice  of,  2833. 
surety  gives,  wlieu,  to  creditor,  to  collect,  2840-2848. 
tax  deed  made  only  after,  to  delinquent.  2903. 
lien  foreclosed,  after  ten  days',  2912. 
sale  of  land  after  notice  to  delinquent,  2889. 
third  person  receiving,  that  private  examination  of  married  woman  fraud- 
ulent, etc.,  effect,  950. 
township  erected  or  altered  after,  1318  (30),  1319. 
watercourse ;  petition  to  make,  lawful  fence,  1003. 

NUISANCE:     See  Volume  II. 

abatement  of,  ordered:  refusal  to  conqily  :  misdemeanor.  3440. 

by  town  autliorities,  2929. 
action  for,  brought  how,  825. 

.ludgment  for  damages  or  removal  of  nuisance.  825. 
milldam  abated  as  a,  when,  21-12. 

NUKSR,  TKAINEI):     See  Volume  II. 

acting  as,  illcgall.v  :  nnsdenieanor,  3050. 

OATH  : 

administered  by  whom,  087,  901,  1I27.  Iii54.  20SS,  2.".01,  2302.  '2405. 

with  solemnity,  2353,  2354. 
administrator,  executor  and  collector  takes,  29,  2300. 
administrator,  public,  takes,  19. 
attirniation  :  forms  of.  2355.  23.58. 

"oath"  means,  when,  2831   (5). 

who  allowed  to  make.  2:r>5.  23.50,  2.358. 
appraisers  allotting  homesteads,  087. 
attorney  at  law  :  reipiirenients,  209,  2.300. 
attorney  general,  2357,  2.'15S,  2;!00. 
book  account  proven  liy,  1022,  1023,  2.300. 
certain  invalid  oaths  validated,  2.'!03. 
clerk,  superior  court,  .S91.  2:157.  2:45S,  2.3m. 
clerk,  sniiremc  court,  2;il>.  ■_':'.57.  23.5,8,  2300, 
coiiiiiiissidiicr  of  atlidavits.  '.127. 


IXDEX. 

OXni— coil/ ill  iicd: 

<-ouuiiissi()iior  of  wrecks,  2;!57,  2358.  2300. 
coiistahU-,  ii:;i4.  2;ir,7,  2;!riS.  2:!il(»,  2!)38. 

ill  cliMi'ge  of  .iury,  14!)(i   (33). 
coustitutiou  of  United  States,  oatli  to  sni)port,  taken  b.v  wlioui,  23.'J7. 

of  X'ortli  Carolina  ;  oath  to  sii|i|iort,  23r>s. 
coi'por.'ilion  commissioners,  take,  l(i."i;i.  23ri7,  235,s. 

a<lniinister.  wlien.  \i)7A. 
coroner.  Ill-IM.  23."m,  2;C),S. 
corruiitl.v  taking;  iicr.jnr.v.     See  Per.jnrv. 
cotton  weiglier  takes,  liclore  entering  npon  duties.  2360,  3815. 

failing  to  take,  iiiisdcnicinor,  .'ISiri. 
couut.v  iittorne.v.  2:'.."7.  2:;."s.  23(;o. 

count.v  connnissioners  take,  liefore  clerk  of  court.  131G.  2357,  2358. 
county  Hnance  committee.  inend>ers  of  take,  1300,  23G0. 
count,\'  sur\-eyor ;  talces.  23.-I7,  2358,  2300. 

m;i,y  administer,  when.  2301. 
eounty  treasurer,  2357,  2.'!5S,  23()0. 
deputies  may  administer,  when,  2359. 
dower ;  .iury  allotting,  take,  2300. 
election  ,iud,ges.  29SS. 

registrars,  2948, 
entry-taker.  1703,  2357,  2358,  2300. 
game  warden.  1808. 
grand  .iury  :  foreman  and  .iurors  take,  2360. 

officer  iu  charge  of,  takes.  2360, 
guardian.  1759. 
insolvent  debtor,  1918a. 

inventory  of  estate  of  decedent  returned  under.  42. 
judge,  superior  court,  1497,  2357,  2358,  2360. 
.iurors  take,  in  the  different  actions,  1490  (32),  2300. 
justice  of  the  peace,  1411,  2357.  2358,  2300. 
mayor's,  2932. 
notaries  public.  2347.  2357.  2358. 

adnnnister.  wlien.  2.3.50. 
"ontli"  means,  what.  2S31   (5). 
ollicer  attending  jiu'.v.  1527,  2360, 
oyster  commissioner  takes,  2357.  2.358,  2403. 

administers,  2405. 
oyster  inspector,  2357,  2358,  2404. 
oyster  license:  oath  to  obtain,  2409. 
l)artition ;  commissionei's  appraising  land  for,  2300. 
penalty  on  ofHcer  entering  on  duties  without  taking,  2.307. 
person  taking:  lays  hand  upon,  and  kis.ses  Holy  Evangelists,  23.54. 
poliieman  of  railroad,  2607. 
probate  by.     See  Probate. 

liulilic  officer  must  take,  before  entering  on  duty.  2367. 
referee  may  administer,  521. 
register  of  deeds,  2357,  2358,  2300,  20.52. 
roads ;  jui-y  laying  off,  takes,  2360. 
secretary  of  state,  2357.  2358,  2360. 
sheriff.  2357.  2358,  2360. 

a<lministors.  when,  087. 
solicitor,  2357.  2:;5S.  2:'.(lll. 
standard4ieeper,  2.357,  235S.  2.360,  .3o72. 
state  auditor,  2357,  2358,  2360. 
state  tax  commissioners  take  and  tile,  with  siM-retarv  of  state,  1120.  ; 

2358. 
state  treasurer,  2357,  2358,  2300. 
stray  valuers,  2300. 

supreme  court  justice.  1533.  2357,  2.3.58.  2.360. 
sworn  witli  uplifted  liaiid  :  who  are,  2355. 

1327 


INDEX. 

OATH — continued : 

taking,  and  testifying  falsely.     See  Perjury. 

town  commissioners,  2357,  2358,  2920. 

trustee  of  insolvent  debtor,  1947. 

weigher  at  tobacco  warehouse.  3043. 

widow's  year's  allowance ;  commissioners  allotting,  take,  2360. 

witness  in  justice's  court,  149G   (29). 

written  instrument  proven  by.     See  Probate. 

OBSTRUCTING  : 

canal,  race,  etc. ;  misdemeanor,  3381,  3078. 

commissioner  of  wrecks  in  discharging  duty ;  misdemeanor,  3504. 

docks  of  Wilmington  with  logs,  etc. ;  misdemeanor,  3547. 

free  passage  of  fish  in — 

certain  streams  by  erection  of  dams,  etc.,  2462-2404. 

Hendei-son  county  streams,  2479. 

Hiawassee  river.  2461. 

Neuse  river,  2474. 

South  Fork  river,  2473. 
inspection  of  feed  stuffs :  misdemeanor,  3827,  3447.  3452. 

of  premises  for  crop  pests ;  misdemeanor,  3713. 
navigation  ;  generally,  3501. 

by  erecting  artificial  islands,  3543. 
felling  trees  in  rivers,  3559. 

in  Little  river,  2443. 

waters  of  Currituck  sound,  3553. 
railroad  trains,  etc. ;  consequences,  3754,  3755. 
roads,  etc.,  3784. 
watercourses ;  by  throwing  sawdust  in  streams,  3382a. 

canals  dug  by  agreement,  3375. 

drains,  cut  by  consent,  3370. 
In  certain  counties,  3,382. 
mining  districts,  3380. 
way  to  church,  etc.,  or  spring ;  misdemeanor.  3776. 

OFFICE,  PUBLIC : 

bargains  made  for,  void,  2306,  3571. 

person  bargaining  or  selling :  punisned  how,  3571. 
contested.    See  Contested  Elections, 
no  per.son  can  hold  but  one:  exceptions,  2364,  1415. 

penalty-  for  holding  more  than  one,  2305. 
person  holding,  deemed  lawfully,  2368. 
holds  until  successor  qualifies,  2368. 
removal  from — 

county  commissioners,  for  accejiting  bond  knowing  insufficlont. 

commissioner  of  wrecks ;  when,  .350.3. 

member  of  general  assembly  accepting  bribe,  3570. 

otBcer ;  buying  or  selling  office,  3571. 

contracting,  seeking  to  derive  personal  benefit,  3572. 
entering  on  dut.v  without  qualifying,  ,3505. 

without  giving  bond,  278. 
refusing  to  comply  with  writ  of  habeas  corpus.  ?,7>^1. 
speculating  in  claims,  ,3575. 
pilot,  when.  .3500. 

register  of  deeds  failing  to  perform  duties,  3592.  3590. 
sheriff;  for  failing  to  seize  illicit  stills,  etc.,  3520,  ,35,3.3. 
for  allowing  prisoner  to  escape.  3577. 
sheriff  farming  out  his  ollice:  a  misdemeanor,  2828. 
title  to,  tried  by  quo  warranto,  820-845.     See  Contested  Elections. 


INDEX. 

OFFICER,  PUBLIC :     See  Volume  II. 
accepting  bribe ;  felony,  35CS. 
amercement  of.     See  Amerceuieut. 
allowing  escape  of  prisoner,  fined  and  removed,  3'ul. 
assuming  wi'ongfully  to  be;  punished,  how,  944  (.3). 
authority  conferred  on  more  than  one,  how  exercised,  2831  (2). 
bonds  of.     See  r.onds.  Official, 
bribery  of:  felony,  3r,C,S. 
buyintr  and  sellini;  olHre;  misdemeanor,  .3.571. 

offender  forfeits  olliee,  3571. 
comiiensation  of.     See  Fees;  Salaries, 
continues  in  office  till  successor  qualifies,  23ft'<. 
contracting  as  othcer,  for  own  benefit ;  misdemeanor,  3572. 
con\eyauces  executed  by,  after  term  e.xpires.  !)50,  2905. 
count.v.     See  under  name  of  officer. 

swearing  falsely  to  rejiort ;  misdemeanor,  3G05. 
de  facto  tax  collectors;  acts  of,  valid.  2S97. 
embezzling  funds  or  propert.\-,  :!4(i(;-;!41o.     See  Embezzlement, 
entering  upon  duty  without  qualifying;  misdemeanor,  350.5. 

forfeits  otflce,  3565. 
failing  to  deliver  public  moneys  to  proper  person ;  misdemeanor,  357(5. 
to  discbarge  duty  required  by  law ;  misdemeanor,  3576,  3592. 
removed  from  office,  when,  3592. 
file  statement  of  fines,  etc.,  when  required ;  misdemeanor,  3579. 
furnish  information  to  board  of  public  charities;  luisdemeanor,  3566. 
give  board  of  public  charities  chance  to  examine;    misdemeanor, 

3566. 
pay  over  fines,  licenses,  etc. ;  embezzlement,  when,  3594. 
publish  reports  required ;  misdemeanor,  3576. 
turn  over  books,  etc.,  to  successor;  misdemeanor,  3576. 
farming  out  office ;  misdemeanor,  3571. 

forfeits  office,  3571. 
interested  in  selling  supplies  to  institution  with  wliicb  connected;  misde- 
meanor, 3833. 
removed  from  office,  3833. 
member  of  general  assembly  accepting  bribe  ;  felony,  3.")70. 

forfeits  office,  3570. 
oaths  of.     See  Oath. 

must  take,  before  acting,  2367. 
offering  a  bribe  to,  felony,  3569,  3570. 

person  obstructing,  in  discharge  of  duty ;  misdemeanor,  3700. 
removal  of,  from  office  for  failure  to  discharge  duties,  3592. 
speculating  in  claims  against  state,  county,  etc. ;  misdemeanor.  3575. 
special  .iurisdiction  of,  how  pleaded,  497. 
state  officers.     See  under  name  of  office. 

OFFICIAL  BONDS  :     See  Bonds,  Official. 

OLEOMARGARINE : 

defined,  3828. 

selling,  without  complying  witli  regulations  ;  misdemeanor,  .3828. 

OPINIONS : 

.iudge  can  not  express,  on  facts.  535. 
supreme  court,  to  be  in  writing,  1548. 
certified  down,  how,  1549. 

ORDERS  AND  DECREES  :     See  .ludgment. 

appeal  from  order  allowing  provisional  renie<ly  ;  wlien  board,  874. 

applied  for  by  motion,  874. 

approved  by  what  .judge,  when  approval  required,  571. 

Rev.  Vol.  1—80  1.329 


INDEX. 

ORDERS  AND  DECREES— cwi/mued; 

iuterlocutory  orders ;  supreme  court's  action  as  to,  1544. 

order  defined,  873. 

out  of  court ;  made  without  notice,  vacated,  514. 

recitals  in  deeds  competent  evidence  of,  when,  341,  342. 

record  of,  liept  b.v  clerlv,  915  (11). 

restoring  to  citizenship,  2079. 

set  aside  for  mistake,  surprise,  neglect,  513. 

ORDINANCES,  MUNICIPAL : 

adopted  b.v  town  commissioners,  2923. 

building ;  resulations  as  to,  29S1-.S011.     See  Buildings  in  Towns. 

certified  to  superior  court  by  mayor,  on  appeal,  2936. 

competent  evidence  when  so  certified,  1595. 
concerning  speed  of  trains ;  tested  by  railroad,  1101. 
enforce<l  by  mayor,  etc.,  how,  2935. 
person  violating,  guilty  of  misdemeanor,  3702. 

ORPHANS : 

adoption ;  bond  to  secure  estate,  178. 
apprenticed,  184-20G.     See  Apprentice, 
estate  of,  removed  to  another  state,  how,  181G-181S. 
guardian  of.     See  Guardian. 

list  of,  without  guardians,  furnished  grand  .iury,  1810. 
without  guardian  ;  estate  protected,  how,  1810-1815. 
receiver  for;  appointed,  1811,  1813. 
duties  and  compensation.  1813. 
has  control  until  guardian  appointed,  181.3. 
ordered  to  turn  over  estate  to  guardian,  1814. 
solicitor  applies  for  receiver  for,  when,  1811. 

brings  action  ;  on  bond  of  former  guardian,  when,  1812. 
to  compel  receiver  to  turn  over  estate.  1812. 

OUTLAWS : 

felon  outlawed.  3183.     See  Fugitives  from  Justice. 

OVERCHARGE : 

common  carrier  not  allowed  more  than  printed  tariff,  2042. 
corporation  commission's  decision  appealed  from,  effect  on,  1082-1085 
person  claiming,  must  file  claim,  how,  2G43. 
refunded  to  shipper,  when,  1085,  2G43. 

carrier  failing  to  refund ;  forfeiture,  2G44. 

OVERSEER  OP  POOR :     See  Home  for  Aged  and  Infirm. 

OVERSEER  OF  ROADS  :     See  Roads, 
appointment ;  duties,  etc.,  2715-2724. 

OWELTY  OF  PARTITION :     See  Partition. 

OYSTER  COMMISSIONER  AND  ASSISTANT: 
arrest  violators  of  oyster  law,  when,  2398. 
appointed,  how,  2403. 
bonds  of,  2403,  2G5,  273. 
duties  of  commissioner,  2.301,  2398,  2404,  2405,  241G.  2421. 

of  assistant  commis.sioner,  2400. 
oaths  of.  2357,  2358.  2403. 
removed,  when,  2403. 
salaries  of.  2403. 

1330 


INDEX. 

OYSTER  INSPECTORS : 
appointed,  how,  2404. 
boud  of,  2404. 

books  and  stationery  of,  furnished  by  commissioner,  2405. 
compensation  of,  2404. 
duties  of,  2391,  2407. 
oath,  2357,  235S,  2404. 

OYSTERS  : 

arrest  without  warrant  of  violators  of  regulations  concerning,  2398. 
beds  planted,  in  certain  territory,  2372. 

injuring;  misdemeanor,  2402. 

license  necessary,  2372. 

proceedings  to  obtain,  2373. 

nonuser  of,  for  two  years,  forfeits  license,  2374. 

only  one  allowed  person,  2372. 

survey  of,  to  be  made,  when,  2374. 

natural  bed  included ;  license  revoked,  2374. 
children  under  12  may  be  employed  to  can,  3362. 
clerk's  duty  as  to  license,  2409-2412. 

commissioner  and  assistant,  duties.     See  Oyster  Commissioner  and  Assist- 
ant, 
catching  oysters,  2383-2402. 

at  night  or  on  Sunday  ;  misdemeanor,  2384.  . 

close  season  for  catching,  2383-2385,  2413. 

displaying  false  number  on  boat ;  misdemeanor,  2388. 

dredging  illegally ;  misdemeanor,  2385,  2391,  2413. 
evidence  prima  facie  of,  2391,  2397. 

for  manufacturing  into  lime ;  misdemeanor,  2400. 

refusing  to  stop  boat  and  show  license ;  misdemeanor,  2389. 

using  unlicensed  boats  for ;  misdemeanor,  2387. 

without  license ;  misdemeanor,  2386. 
culling;  regulated,  2415,  2416. 
dealer  in  ;  failing  to  keep  certain  records ;  misdemeanor,  2396,  2418. 

must  obtain  license,  2411. 
dealing  in,  without  license ;  misdemeanor,  2395. 
dredging  regulated,  2385,  2391,  2413,  2414. 
enti-y  of  beds  ;  made  how,  2376. 

survey  of,  by  engineer,  2376. 
entry  or  lease  of  bottom  by  bona  fide  resident,  2377. 

void  for  nonpayment  of  rent,  2377. 
fund  derived  from  oyster  regulation ;  how  paid  out,  2422. 
grant  for  beds  issued  by  secretary  of  state,  2378. 

condition  subsequent  attached,  2378. 

form  approved  by  attorney  general,  2382. 

no  natural  beds  gi-anted,  2378. 

price  paid  per  acre,  2379. 

record  of  grants  kept,  2381. 

registered  in  register  of  deeds'  office,  2378. 
ground  planted  with  shell-fish  taxed,  2380. 
inspection  of.     See  Oyster  Inspectors, 
larceny  of,  on  private  beds,  2401. 
license ;  to  catch ;  who  entitled.  2408. 

boat  used  in  catching,  2410. 

dealer's  license,  2411. 

false  statement  made  to  secure,  2.390. 

form  of,  2409. 

issued  by  whom,  2409. 
loading,  at  wrong  place,  or  illegally ;  misdemeanor,  2.393. 
measures  for;  dimensions,  2417. 
nonresident  interested  not  employed  on  licensed  boats,  2408. 

1331 


INDEX. 

OYSTERS— cc«i/«HHe(/; 

oyster  fuiul ;  lucuse  fees  collected,  how,  2409. 
oath  necessary  to  obtain  license,  2409. 
pureha.se  tax  on  dealers,  etc.,  2419. 

effect  of  failure  to  pay,  2419. 
selling,  not  culk>tl ;  nii.sdeuieanor,  2302. 

preserved  :  as  fresh  ;  misdemeanor.  3444. 
shells  scattered  ou  beds,  by  commissioner,  2421. 
state  exercises  control  over,  where,  237.5. 
towns  can  not  tax  persons  selling,  on  street.s,  2928. 
trespass  upon  private  beds;  misdemeanor,  2402. 
unloading,  after  sunset  or  on  Sunday;  misdemeanor,  2394. 
using  illegal  measures  for ;  misdemeanor,  2399. 
vessels  with,  allowed  to  go  through  canals,  when,  2420. 
working  on  oyster  ground  at  night ;  misdemeanor,  2402. 

PAKDON;     See  Volume  II. 

effect  ou  i-estoration  to  citizenship,  2680. 

petition  to  governor;  names  signed  without  authority:  forgery.  342C. 

PARENTS : 

abandoning  child,  right  of  custody  forfeited,  ISO. 

right  of  custody  restored.  181. 
abducting  child,  after  abandoning ;  felony,  3373. 
apprenticing  child  ;  power  of,  201. 

consent  of,  necessary  to  obtain  marriage  license,  when,  208S. 
divorced ;  custody  of  children,  1570. 
inherit  from  child,  when.  1556  (r.  0). 
may  appoint  guardian  for  child,  17G2. 

misstating  age  to  manufa<turer  ujion  hiring  child ;  misdemeanor,  33C4. 
relation  of  parent  and  child  established  by  adoption,  177. 
remedy  when  !i(iuor  sold  to  child.  3525. 

PARTICULARS,  BILL  OF: 

judge  orders,  when,  494,  3244. 
justice  orders,  when,  1460. 

party  refusing  to  give ;  effect,  14G9. 
required  in  criminal  actions,  3244. 
solicitor  shall  furnish,  when,  3244. 

PARTITION  : 

commissioners  to ;  appointment  of,  2487,  2501. 

clerk  or  deputies  can  not  be,  2513. 

compensation  of.  2791-2793. 

duty  of.  2491,  2501. 

may  employ  surveyor,  2493. 

neglecting  to  make  partition ;  penalty,  2498. 

oath  of,  230(1,  2492. 
costs  adjudged  how,  in  proceedings  for,  1268  (7). 
dower  land  suliject  to;  procedure,  2517. 

how  widow's  portion  valued  at  sale  for,  1620.  2517. 
homestead  allotted  in  land  held  in  common,  how,  2489. 

creditor  executes  on,  how,  2489. 
land  in  two  states ;  [irocedure  to  obtain,  2499. 

court  decrees,  when,  2500. 

appoints  commissioners.  2.501. 

■report;  confirmation;  effect,  2.501. 

when  decree  of  another  state  enforced,  2502. 
how  validity  ]iassed  on,  2.503. 


INDEX. 

I'ARTITION— co»  I  in  ued  : 

owelty ;  bears  interest,  2496. 

charged  against  minors,  when  payable,  2497. 
personal  property  partitioned.  2504,  2505,  2510,  2520. 
procedure,  2485-2499. 

commissioners  appointed,  2487,  2501. 
petition  Hied,  2487,  2499. 

unknown  persons  interested;  Low, served,  2490. 
report  of  commissioners ;  contents,  2494,  2501. 
confirmed,  when,  2494,  2501. 

enrolled ;  registered,  2495. 
impeached,  when,  2494. 
sales  of  land  for,  2506-2517. 
advertised  how,  2514. 
commissioners ;  appointed  to  make,  2513. 
clerk  and  deputies  can  not  be,  2513. 
report  filed,  2513. 

confirmed,  when,  2513. 

effect,  2515. 
impeached,  when,  2513. 
disputed  ownershii)  of  share  does  not  interfere  with,  2511. 
estate  in  expectancy  may  be  sold,  2508. 
life  estate  does  not  interfere  with,  2.508. 
life  tenant  and  remainderman  may  sell,  2.509. 

interest  of  life  tenant  valued,  1626.  2509.      

timber  trees  sold ;  life  estate  valued,  2510. 
part  may  be  sold  and  part  divided,  2506. 
proceeds  of,  secured  to  tenants,  by  clerk,  2515,  2516. 
terms  of,  2512. 

title  made  purchaser,  when,  2512. 
when  required  for  public  use,  2518. 
sales  of  personalty  for.  2519. 
advertised,  how,  2.520. 
confirmed  ;  effect,  2519. 
imi^eaehed,  how,  2519. 
venue  of  proceedings,  419,  2486. 

PARTNERSHIP : 

admission  by  partner  after  dissolution,  effect  of,  372. 
estate  held  by;  survivor  takes,  1570. 
limited ;  accounting  between  jiartners,  2537. 
action  against,  how  brought,  2533. 
certificate  of;  contents,  2523. 

false  statement  in ;  effect,  2527. 
must  be  registered,  with  affidavit,  2524-2526. 
defined.  2522. 
dissolution  ;  deemed  from  alteration  of  names,  etc..  2531. 

when  may  be ;  advertisement,  2539. 
effect  of  registration  of  certificate,  2520. 
may  be  formed  for  wliat  purpose,  2521. 
name  of,  2.5.32. 
publication  of  terms  of,  2528. 

affidavits  proving  publication  filed,  2529. 
registration  of  certificate  essential  to.  2526. 
special  partner ;  can  not  withdraw  capital,  2534. 
claims  as  creditor  in  bankruptcy,  when.  2538. 
part  of  capital  paid  to,  refunded,  2.")3.5. 
rights  of,  2530. 
term  of,  expired,  how  continued,  2530. 
limitations:  statute  of.  begins  to  run  as  to  undisclosed  jiartner,  373. 
negotiable  instruments ;  preseiite<l  to  whom  for  payment.  2226. 

1333 


INDEX. 

PARTNERSHIP — continuecL: 

uone.  between  lessors  and  lessees,  19S2. 
notice  of  disliouor  served  on,  2249. 

Ijartuers  not  all  served  with  summons,  judgment,  how,  455. 
sign  of,  must  show  interest,  when,  2118. 
surviving  partner ;  duties,  2540-2547. 
accounting  by,  when,  2.54G. 

couiiielled.  2547. 
action  on  claim  presented  to,  after  twelve  months,  2.544. 
appraisal  of  stock,  etc.,  for  purchase  by,  2545. 
comiiensatiou  for  winding  up  business,  2546. 
debts  of  partnership  paid  pro  rata  ;  exception,  2543. 
inventory  taken  by,  when,  2540. 

refusing  to  allow  representative  to  take;  effect,  2541. 
refusing  to  take ;  representative  takes,  2541. 
makes  final  settlement,  when.  254G.  2547. 
notifies  creditors  to  exhibit  claims,  2542. 
publication  of  notice,  2542. 
tax  on  realty  of,  partner  may  pay  share,  2800. 

PARTY  TO  ACTION  OR  PROCEEDING  : 

action  b.v  county,  to  the  use  of  workhouse,  1372. 
by  town,  brought  in  its  name,  291G. 
must  bo  brought  by  real  party  in  interest,  400. 
administration  ;  petition  for  sale  of  land  for  assets,  74,  75. 

settlement,  petition  for,  150. 
administrator,  etc.,  sues  In  own  name,  when,  404. 
adoption  of  minor  children,  proceeding  for,  175. 
appearance  of,  in  person  or  by  attorney,  350. 
assignee  of  ehoses  in  action  brings  action,  400. 
burnt  and  lost  records ;  proceedings  to  perpetuate,  339. 
city  sues  in  its  own  name,  2910. 

competent  witness,  when  and  when  not,  16.30.  1633. 
condemnation  of  land  for  right  of  way,  2.580.  2582,  2592. 
contingent  remainders :  petition  for  sale  of,  1.590. 
corporate  dis.solution,  etc..  cestui  que  trust  bound,  how.  1241. 
corporation,  after  dissolution  ;  directors  are,  when,  1202. 
corporation  commission  acting  as  arbitrator ;  appearance  of,  1073. 
corporation  receiver  substituted  as,  when,  1231. 
county  sues  in  its  own  name,  1310. 
death  of,  how  suggested,  416. 
defendant  defined,  355,  410. 
demurrer  for  defect  of.  474. 

for  lack  of  jurisdiction  of,  474. 
dower ;  application  for,  3088. 
dying  after  verdict,  how  judgment  entered,  564. 
dying  or  transferring  interest  no  gi'ound  for  abatement,  415. 
evidence  when  party  to. transaction  dead,  1631. 
examination  of,  804-872.     See  Examination  of  Parties, 
ferryman,  etc.,  negligently  injuring  passenger,  who  sues.  2709. 
grantee  of  real  property  sues  though  grant  void.  400. 
grants;  correction  of,  in  certain  counties,  who  is,  1742. 
guardian;  proceeding  on  application  for,  1772. 
infants  defend,  how,  406. 

sue.  how,  405. 
interest  determines  whether,  niusi  lio  nia<le.  400. 
joint  and  several  debtors ;  i)art  served  ;  judgment,  455-459. 
married  woman  sues  and  defends,  how.  408. 
municipal  corporation  sues  in  what  name,  1310,  2916. 
name  of,  not  known;  what  done.  510. 
negotiable  instruments,  action  on;  who  iilainlifl',  2200. 

1334 


I 


INDEX. 

PAHTY  TO  ACTIOiN  OR  FliOCEEDlNG— continued : 
new,  by  order  of  court,  414. 

made  on  motion,  when,  415. 
partition  ;  of  laud,  generally,  2487-2490. 

of  mineral  interests,  2488. 
■  penalty  sued  for  by  any  one,  when,  401. 

in  name  of  state,  when,  402. 
personal  representatives  plaintiffs,  160. 
persons  jointly  liable ;  action  against,  413. 

severally  liable ;  actions  by  and  against.  412. 
plaintiff  and  defendant  defined,  355.  409,  410. 
processioning  land  ;  who  are  parties,  320,  328. 

purchase  at  judicial  sale,  title  retained,  deemed  legal  owner,  when,  403. 
real  party  in  interest  should  be,  400. 
receiver  substituted  for  name  of  corporation,  when,  1231. 
removal  of  orphan's  estate  to  another  state,  who  is,  1818. 
several  sue  for  a  class,  411. 

substituted,  where  defendant  does  not  claim  adversely,  414. 
supreme  court  allows  new  parties  to  be  made,  1545. 
tax  lien,  foreclosure  of;  who  are,  28(56. 
trustee  of  express  trust ;  sues  in  own  name,  when,  404. 
united  in  interest,  must  join  as  parties,  when,  411. 
waste,  action  for ;  who  plaintiffs  and  defendants,  854-857. 
who  may  be  defendant,  410. 
who  may  be  plaintiff,  409. 
will ;  proceedings  to  prove  contents  of,  331. 

PASSENGER :     See  Railroads. 

PASSENGER  RATES :     See  Corporation  Commission. 

PASSES  FOR  TRANSPORTATION: 
allowed  to  certain  persons,  1105. 
corporation  commission  and  clerks  transported  free,  1105. 

PAUPER : 

appeals  in  judgment  against,  without  undertaking,  597. 

bond  not  required,  when,  451,  454. 

county  cares  for,  1327-1334.     See  County  Poor. 

defends  without  bond,  454. 

recovers  cost,  in  action,  when,  1265. 

sues  without  giving  bond,  451,  452. 

PAYMASTER  GENERAL, :     See  Volume  II. 
salary  of,  payable  out  of  what  fund,  2751. 

PEACE  WARRANT : 

accused  discharged  when  complainant  fails  to  appear,  3171. 
bond  to  keep  peace ;  amount  of,  3170. 

form  of,  3170. 

re<iuired,  when,  3168. 

returned  to  suiwrior  court,  3175. 
complaint  to  obtain  ;  examined  upon  oath,  3166. 
defendant :  discharged  from  prison  on  giving  bond,  3174. 

failing  to  keep  peace  after  giving  bond,  forfeits,  3214. 
procedure  to  collect,  3214-3220. 

imprisoned,  when,  3172. 

recpiired  to  give  bond,  may  appeal,  3173. 
issued ;  by  whom  and  for  what  purpose,  3165. 

when,  and  what  to  contain,  3167. 


INDEX. 

PEACE  WARRANT— ton ?Hi iicil : 

person  In-eaking  tlie  iieiK-e  in  court,  iciniinMl  to  !j;ive  bond.  .'HOS. 

proceedings  on,  317U-.'U72. 

to  whom  directed  and  wliere  executed,  ."5100. 

PEDDLERS: 

county  commissioners;  power  of,  to  license,  1318  (IS). 
peddling  without  license ;  misdemeanor,  37Sf). 

PEDIGREE : 

false  representation  of;  misdemeanor,  .3.307. 

PENALTIES  AND  FORFEITURES: 

actions  to  recover ;  barred,  wlien,  378.  307. 

from  bank  officers,  378. 

from  carriers,  1092,  2G47. 

release  claimed  by  defendant ;  plaintilT  may  reply  fraud,  1521. 

venue  in.  420. 
administrator  selling  out  of  prescribed  time,  GO. 
anchoring  nets  in  Albemarle  sound,  2451. 

fi.shiug  with  dutch  nets  in,  2430. 
apprentices ;  enticing,  away  from  employer,  193. 

entitled  to  penalty  when  employer  violates  indenture.  2o0. 
bonds.     See  Bonds:   Bond  for  Cost;  Bond  for  Title:   Bonds.   Fiduciary 
Bonds.  Official. 

penalty  in,  sued  for :  defense,  etc.,  1522. 
bridges ;  failing  to  keep  uj),  when  so  retpiired,  2090,  2700,  2701. 

failing  to  put  in  draw  on  notice,  2000. 
burning  woods  of  another,  3340. 
bushel ;  taking  more  than,  by  weight,  3007. 
clerk  failing  to  docket  return  of  execution,  030. 
issue  execution,  018. 
transfer  records  to  successor,  907. 
commissioners  to  establish  mill ;  failing  to  attend,  2124. 
corporation  failing  to  disjjlay  name  at  principal  office.  1242. 
c'ounty  commissioner  failing  to  perform  dut.v,  3500. 
county  officer  failing  to  account  for  certain  funds,  1383. 

failing  to  make  settlement.  1302. 
election  officer  making  false  return.  3307. 
entry-taker  failing  to  make  returns,  17iiO. 

failing  to  keep  office  near  courthouse.  1704. 
express  comi)auies  discriminating  between  connecting  lines.  1088. 

failing  to  make  certain  reports.  1080. 

refusing  1o  obe.v  corporation  commission,  1087. 
failure  to  repair  bridge,  2703. 
ferry ;  conducting,  imautliorizcd,  2710. 

charging  excessive  toll,  2707. 
foreign  corporation  failing  to  domesticate;  exception.  1104. 
habeas  cori)Us,  person  reconnnitting  one  discharged  on.   l.'<52. 
holding  more  than  one  office.  2.3()4.  2.30.5. 
.iudge:  .acting  before  taking  oath.  1407. 

failing  to  grant  writ  of  habeas  corpus.  1828. 

issue  attachment  to  enforce  writ.  18.35-18,38,  18.39. 
settle  case  on  apjieal,  .501. 
.iurors  failing  to  attend  court,  1075,  1077. 
justice  iicrforming  marriage  ceremon.v  without  license,  2087. 
officer:  failing  to  execute  regulations  as  to  gambling.  .3710. 

failing  to  return  writ  of  habeas  corpus.  :i5!t7. 
take  oalb  before  acting.  2.307. 

speculating  in  claims  against  government.  :'.575. 


INDEX. 

PENALTIES  AND  VOllFErrVliKH—contiinicd: 

owner  failing  to  kill  dog  bitten  by  mad  dog,  3305. 
performing  marriage  ceremony  without  license,  2087. 
phariiiacontists  failing  to  comply  with  law,  3648,  3654. 
phosi'li.ili-  i.ii  k,  digging,  from  navigable  streams,  3744. 
public  >ili.".ls  -et,  1378. 
railroads  :  discriminating  between  connecting  lines,   1088. 

failing  to  make  rejiorts  to  corporation  commission.  1089. 
supply  "jim  crow"  cars,  2022. 
transfer  freight  in  time,  2G32. 

refusing  to  obey  orders  of  corjjoration  commission,  1087. 
check  baggage,  2fi23. 
receive  freight,  2031. 

violating  provisions  of  chapter  Corporation  Commission.  1090. 
rules  of  corporation  commission,  1086. 
receiver  sending  for  person,  etc. ;  refusal  to  be  examined,  1227. 
register  of  deeds ;  issuing  marriage  license  unlawfully,  2090. 

failing  to  record  returns,  etc.,  2092. 
road  hand  failing  to  work,  2720. 
road  overseers  neglecting  duty.  2724. 

road  supervisors  failing  to  perform  duties  as  to  overseers,  2714. 
sheriff;  failing  to  pay  execution  costs  into  court.  640. 
to  pay  money  'over  when  collected,  2821. 
to  perform  duties  as  to  process.     See  Amercement. 

outgoing,  failing  to  execute  process,  2820. 

selling  property  under  execution  inilawfully,  049. 
steamboat  owners;  for  discriminating  between  connecting  lines,  1088. 

refusing  to  obey  orders  of  rorporatiou  commission.  1087. 
street  railway  couiiianios  discriminating  between  connecting  lines,  1088. 

refusing  to  obey  orders  of  cor]i<ir.itiun  commission,  1087. 
Sunday  observance  law  violated,  2830. 
surety  companies  failing  to  pay  judgment,  275. 

telegraph  and  telephone  companies:  refnsing  to  obey  corporation  commis- 
sion, 1087. 

failing  to  make  report  to  corporation  commission.  1089. 
toll  bridges,  charging  excessive  toll,  2707. 
town  officers  failing  to  act,  2!>42. 
traden\arks  ;  securing  false  registration  of,  3018. 

violating  regulations  concerning,  3022. 
usury;  person  taking.  1951. 
warehouseman  ni.-iking  false  charge.  3044. 
water  company  failing  to  have  water  inspected.  3047. 
weights  and  measures :  person  using  unlawful.  3000.  3007. 
who  sues  for.  401. 
witnesses  failing  to  attend,  1643,  10!5O,  1051. 

PENSIONS  :     See  Volume  II. 

county  board  of  pensions ;  compensation,  2783. 

officer  failing  to  discharge  duties  as  to :  misdemeanor.  .3.59.3. 

speculation  in  pension  claims ;  misdemeanor,  3732. 

PERISHABLE  PROPERTY: 

attached :  sold,  when,  772. 
freight  containing,  sold,  when.  2038. 
sold  pending  appeal,  when,  .598. 
warehouseman  mayi  sell ;  when,  30.39. 
unable  to  sell,  what  done,  3040. 


INDEX. 

PERJURY: 

contractor,  etc.,  swearing  falsely  to  defraud  laborer,  3613. 

creditor  swearing  falsely  against  assignor  for  creditors,  3617. 

defined  and  puuislinient  prescribed,  3615. 

iudictuient  for,  substance  of,  3246,  3247. 

insolvent  debtor  falsely  taking  insolvent's  oath,  3614. 

person ;  corruptly  taking  oatb  at  election,  3390. 

swearing  falsely  before  committee  of  general  assembly,  3611. 
before  court-martial,  3612. 
physician  making  false  death  certificate  to  insurance  company,  3487. 
subornation  of,  defined,  and  punishment  prescribeil,  3616. 

PERM.VNENT  REGISTRATION:     See  Volume  II. 

officer  failing  to  perform  duty  concerning;  misdemeanor,  3393. 
unqualified  person  registering ;  misdemeanor,  3392. 

PERSONAL  PROPERTY : 

action  by  representative  to  recover,  161,  162. 

claim  and  delivery  of,  790-802.     See  Claim  and  Delivery. 

corporation  shares  are,  1168. 

defined,  2831  (6). 

exemption  from  execution,  685.     See  Personal  Property  Exemption. 

forfeited  to  state,  how  recovered,  845. 

general  gift  in  will  includes,  what,  3143. 

husband's ;  wife  forfeits  interest  in,  7,  8. 

wife  has  distributive  share  in,  132. 
lien  on :  for  repairs,  2017. 

for  taxes,  when,  2863. 
limitations,  statute  of.  bars  action  of  detinue,  395. 
malicious  injury  to,  misdemeanor,  3676. 
sales  of:  by  personal  representative,  61-67. 

for  taxes.  2876,  2884.  2886. 
what  proceeds  from  administrator's  sale  of  real  estate  is,  48. 
what,  passes  by  will,  3140. 
wife's ;  at  death  goes  to  husband,  4. 

husband  forfeits  Interest  in,  7,  9. 

PERSONAL  PROPERTY  EXEMPTION: 
allotted,  how.  695,  699,  697. 

when,  695. 
appraiser's  duty  in  laying  off.  697. 

oath  and  fees  of,  696,  1274,  1275. 
cost  of  allotting.  1274,  1275. 

exception  to  valuation  and  allotment ;  procedure,  699. 
fees  of  sheriff  in  making  allotment,  2777. 
increase  demanded  by  debtor ;  procedure,  700. 
property  of  debtor  exempt,  685. 
registered  in  register  of  deed's  office,  698. 
undertaking  of  objector'  to,  701. 

PERSON.VL  RKPRESENT.\TIVE  :     See  .\dministrator  ;   r<)!le<'tor  :   Executor. 

PESTHOUSE : 

provided  for  liy  county  cunimi.ssioncrs.  l.'HS  (15). 

PETITION : 

administrator's,  for  final  settlement.  l."i(i. 

for  sale  of  land  for  assets.  77. 
adoption  of  minor  children.  171. 
burnt  and  lost  re<ords  ;  to   restore.  .^.39. 

13:!S 


INDEX. 

PETITION — continued: 

burnt  or  lost  deed ;  to  establish  boundaries  of,  328,  329. 

cartways  established  by,  2G80. 

condemnation  proceedings  begun  by,  1574,  2580. 

costs  adjudged,  how,  on  hearing  of,  1269. 

devisee,  heir,  etc.,  for  contribution,  58. 

errors  in  grants,  surveys,  etc. ;  to  correct,  1738,  1741. 

ex  parte,  718,  720,  721. 

filed,  when,  in  special  proceedings,  714. 

gates,  to  establish,  2711. 

guardian's :  to  sell  property  of  ward,  1798.  1800. 

to  remove  ward's  estate  to  another  state,  1817,  1818. 
idiots,  inebriates,  etc. :  to  appoint  guardian  for,  1890. 

to  sell  estate  of,  1897,  1898. 
insolvent  debtors ;  for  discharge  of,  1916,  1921,  1922,  1930. 
judgments,  destroyed ;  to  perpetuate,  332. 
mills ;  to  establish,  2122. 
name  of  person ;  to  change,  2147. 
partition  of  property ;  land,  2487,  2489,  2499,  2518. 

personalty,  2504. 

public  necessity  requiring,  2518. 

to  allot  homestead,  2489. 
pleadings  generally.     See  Pleadings, 
processioning  of  land  by,  326,  328. 

railroad  flies,  for  relief  against  ordinance  as  to  speed.  1101. 
rehearing  in  sujireme  court ;  to  obtain,  1.546. 
restoration  to  citizenship,  2675,  2676,  2680. 
roads;  to  establish,  change,  etc.,  2684,  2688,  2692. 
signing  name  to,  without  permission ;  when,  felony,  3426. 
verification  of,  489-493.     See  Verification, 
widow's,  for  dower,  3088. 

for  year's  allowance,  3106. 
will ;  to  probate,  3125. 

PHARMACISTS:     See  Volume  II. 

adulterating  drugs ;  misdemeanor,  3648. 
license ;  doing  business  without ;  misdemeanor,  3650. 
doing  business  on  expired  ;  misdemeanor,  3653. 
not  displaying,  misdemeanor,  3651. 
securing,  by  false  pretense ;  misdemeanor.  3654. 
to  sell  liquor ;  when  granted,  2063. 
liquor ;  record  of  sales  of,  kept  by,  2063. 

selling ;  except  on  prescription ;  misdemeanor,  3519. 
by  duplicated  prescription ;  misdemeanor,  3527. 
in  prohibition  territory;  misdemeanor,  3518. 
opium,  etc. ;  selling,  except  on  prescription ;  misdemeanor,  3806. 

sale  of,  regulated,  3829. 
prescriptions ;  permitting  unregistered  clerk  to  compound ;  misdemeanor, 
3649. 

PHOSPHATE  BEDS : 

digging  rock  from  navigable  streams  unlawfully ;  misdemeanor,  3744. 
grant  to  dig  phosphate  rock,  1752,  1753. 

entry  made  how,  1751. 

fee  for  issuing  grant,  17.55. 

terms;  and  royalty  paid  state,  1752. 
bond  to  secure  royaltj',  1753. 
grantee  must  not  obstruct  navigation.  1754. 
mined,  without  grant,  how.  1757. 
nouuser  for  two  years  forfeits  grant,  1756. 


INDEX. 

PHYSICIANS  AND  SURGEONS  :     See  \'oluiiie  II. 
abetting  sale  of  liquor  unlawfully,  3530. 
clerk  of  court  registering,  illegally  ;  niisilenieanor.  3047. 
duties,  etc.,  witli  reference  to  contagious  diseases,  3440-3449,  3453. 
exempt  from  jury  duty,  1980. 

giving  prescription  for  liquor  unless  for  sickness ;  misdemeanor,  3527. 
making  false  death  certificate  to  insurance  company ;  misdemeanor,  3487. 
midwives  are  not,  in  contenqilation  of  criminal  statute,  3ti45. 
nonresident,  must  have  license,  when,  3645. 
not  compelled  to  divulge  professional  secrets;  proviso,  1G21. 
practicing ;  without  license,  misdemeanor,  3645. 
can  not  recover  fees  for  services,  3045. 
without  registering,  misdemeanor,  3646, 
register  of,  kept  by  clerk,  915  (25). 

PILOTS:     See  Volume  II. 

action  against,  on  bond  for  damages,  307. 

bond  of.  307. 

exeni])t  from  jury  duty,  1980. 

failing  to  give  notice  of  destruction  of  beacon :  effec-t,  3500. 

PLAINTIFF  : 

action  for  penalty,  reply  of  fraud  by,  to  plea  of  release,  1521. 

claim  and  delivery ;  undertaking  in,  793. 

costs  allowed ;  when,  1264,  1270,  1273.     See  Costs. 

as  a  matter  of  discretion,  when,  1267,  1268. 

not  allowed,  when,  1206.  1271,  1282. 

petitioning  plaintiff  must  pay,  when,  1269, 
gives  undertaking  on  appeal  from  justice's  judgment,  when,  000. 
judgment  rendered  for  and  against,  how,  503. 
pleadings    by,    generally,    405-469,    484-486.      See    Complaint :    Pleadings : 

Reply, 
supplemental  plea  by,  does  not  affect  provisional  remedy,  when,  511. 
undertaking  of,  in  claim  and  delivery,  793. 
who  may  be,  409. 
who  joined  as,  411. 

PLEADINGS : 

accoimt  set  out  in  conqilaint,  how,  494. 

action;  for  penalty,  plaintiff's  reply  to  plea  of  release,  1521. 

on  bond  or  judgment,  defendant  pleads  satisfaction,  1522. 
allegations  not  denied  in,  deemed  true,  when,  .503, 
amendments ;  allowed  by  judge  in  what  cases,  507. 

allowed  in  supreme  court,  1.545. 

allowed  when  demurrer  sustained.  500. 

as  of  course,  when.  .505. 

substantial,  effect,  508. 

to  conform  to  proof,  when,  515. 
answer,  479-483.     See  Answer. 

bonds;  suret.v  conipan.v  (■.■in  not  jilcad  ultra  vires.  275. 
complaint,  generally.  4<>.5-409.     See  Complaint, 
condemnation  proceedings :  amendment  of,  in,  2.502. 
conditions  precedent;  pleaded,  how,  49S. 
construction  of,  495. 
counterclaim.     See  Counterclaim, 
defects  in,  when  innnaterial.  disrcg.-^rdcd.  .5(10. 
defendant's.     See  Demurrer  to  rieading:   Answci-. 
demurrer;  generally.     See  Dennu-rer  to  Pleading. 

to  one  cause  of  action  and  answer  to  .■inotlicr,    171. 
evidence;  pleadings  can  not  be  \ised  as.  when.  4!i;'>.  ICOl. 


( 

i 


INDEX. 

I'LEADINGS — continued: 

equitable  defenses  in  special  proceedings,  717. 
forms  and  rules  of,  prescribed,  487. 
frivolous  ;  judgment  thereon,  560. 

instrument  for  payment  of  money  only,  how  pleaded,  499. 
irrelevant,  redundant  matter,  stricken  out,  when,  49G. 
judgments  or  other  orders  of  court,  how  pleaded,  497. 
jurisdiction  of  otHcers  in  special  cases  pleaded,  497. 
justice's  court ;  may  be  oral  or  written,  1458. 

no  particular  form  of,  1463. 
libel,  complaint  in  action  for,  501. 
limitations,  statute  of.  pleaded,  how,  483. 
negligence ;  contributory,  how  pleaded  as  defense,  483. 
new  matter  in  answer  and  reply,  deemed  denied,  when,  503. 
petitions.     See  Petition. 

plaintiff's.     See  Complaint;  Demurrer  to  Pleading;   Petition;  Reply, 
private  statutes,  pleaded,  how.  500. 
reply  of  plaintiff.     See  Reply, 
rules  of,  in  justice's  court,  1457-1478. 
set-off.     See  Set-off. 

sham  and  frivolous,  not  permitted,  472,  560. 
slander ;  complaint  in  action  for,  501. 
special  proceedings ;  time  of  filing,  714-716. 
supplemental,  allowed,  when,  511. 
time  for,  enlarged,  when,  51"2. 

for  filing,  466,  473. 
usury  ;  how  pleaded  in  defense.  1951. 
variance  between,  and  proof,  515-517. 
verification  of,  488-493.     See  Verification. 

PLEDGE : 

corporate  stock  held  in,  voted  on,  how,  1185. 
pledger  of  stock  liable  as  stockholder,  2557. 

POISON: 

druggist  retailing,  without  complying  with  law ;  misdemeanor,  3650. 
sale  of,  regulated,  3806,  3829. 

without  label ;  misdemeanor,  3655. 

POISONING : 

person,  murder  in  first  degree,  when.  3031. 

stock,  by  leaving  shrubs  exposed,  misdemeanor,  3318. 

streams,  to  kill  fish,  misdemeanor,  3417. 

POLICE : 

appointed  by  town  commissioners,  '292(1. 
duty  of,  with  reference  to  gaming  tables,  3720. 

with  reference  to  liquor  traffic,  2059. 
execute  criminal  process,  2927. 
intendant  of,  must  be  qualified  voter,  2941. 
railroad  police,  2604-2610.     See  Railroads. 

POLITICAL  SOCIETIES :     See  Secret  Political  Societies. 

POLL  TAX:     See  Volume  II. 

exemption  from  ;  presenting  false,  to  election  oBicer ;  forgery,  3401. 

county  commissioners  can  grant,  1318. 
garnishment  to  enforce  collection  of,  2880. 
record  of  payment  of,  kept  by  clerk,  915  (29). 
sheriff:  failing  to  furnish  list  of  voters  having  paid;  misdemeanor,  3400. 

failing  to  give  receipt  or  falsely  dating,  misdemeanor,  :;4(i2. 
taxation  generally.     See  Tax. 

1341 


INDEX. 

POORHOUSE  :     See  Home  for  Aged  aud  Infirni. 

POSSE  CO.MITATUS  : 

sheriff  calls  to  his  aid,  when,  798,  3181.  374ti. 

refusing  to  respond  to  call,  misdemeanor,  3701. 

POSSESSION: 

adverse ;  effect  of.     See  Adverse  Possession. 

deemed  to  be  in  rightful  owner,  38G. 

defendant  in.  holds  office  during  contest  over  election,  83(5. 

party  owning  contiguous  tracts  vinder  one  boundary  ;  effect  of,  1505. 

real  property  rights  determined  by  question  of.  when.  380-389. 

tenant's,  is  landlord's,  387. 

POWER  OF  ATTORNEY : 

husband  and  wife  execute,  when ;  how  proven,  952,  1003,  1004. 

married  woman  can  convey  by,  957. 

probate  and  registration  of,  987. 

real  property ;  power  to  convey,  must  be  written,  070. 

PRACTICE : 

in  civil  causes.     See  Civil  Procedure ;  Special  Proceeding, 
criminal  causes.    See  Criminal  Procedure. 

PRELIMINARY  HEARING : 

accused  may  waive  examination,  3190. 

examinations  and  recognizances  returned  to  superior  court,  3205. 

justice;  duty  of,  to  examine  witnesses,  3192. 

to  reduce  testimony  to  writing,  3193,  319G. 

failing  to  return  examinations  and  recognizances,  contempt,  320C. 
lynching ;  investigation  of,  by  solicitor,  3"200. 

participants  in,  must  testify,  3201. 

not  excused  on  ground  of  self-incrimination.  3201. 
testifying  for  state,  pardoned,  3201. 

person  found  probably  guilty,  bound  over  to  court.  3200. 

solicitor  can  send  for  and  examine  witnesses.  3200. 
misdemeanors ;  not  necessary  to  inquire  into,  when.  3198. 
prisoner;  advised  of  rights  before  being  examined.  3194. 

answers  of,  reduced  to  writing  and  certified,  3196. 

bound  over,  when,  3202. 

discharged  when  no  probable  cause,  3199. 

entitled  to  counsel  and  allowed  to  cros.s-examino,  3193. 

examined  without  oath,  3194. 

let  to  bail,  when.  3202. 

must  be  cautioned  of  his  rights,  3194. 
procedure  when  justice  has  not  final  jurisdiction,  .1191. 
witnesses  may  lie  separated  in  giving  testimony,  319.5. 

not  allowed  present  when  prisoner  examined,  3195. 

recognized  to  appear  before  court,  3203. 

security  for  appearance  required,  when,  3204. 

PRESENTMENT  OF   NEGOTIABLE   INSTRUMENTS:     See   Negotiable   In- 
strimients. 

PRESENTMENT  BY  GRAND  .JURY : 
clerk's  fee  for,  2773. 
names  of  witnesses  indorsed  on.  3241. 
no  arrest  or  trial  on,  3240. 

PRESIDENTIAL  EI-ECTORS:     See  Volume  II. 
compensation  of,  2701. 

1.342 


INDEX. 

PKISONER:     See  Commitment;  Jail. 

allowed  to  supply  himself  with  bedding  and  food,  1344. 

bail  allowed ;  who  takes,  3207-321.3,  3228.     See  Bail,  Criminal  Action. 

bond  to  keep  prison  bounds ;  escaping ;  procedure,  1340,  1341,  2829. 

returned,  how,  1340,  1341. 
breaking  prison;  misdemeanor,  3G,57. 

captured  in  one  county  and  removed  to  another ;  cost,  1287. 
certain,  allowed  liberty  of  prison  bounds,  when,  1339. 
committed  to  jail  of  adjoining  countj',  when,  1349. 
confession  of  judgment  or  giving  bond  does  not  discharge,  1293. 
contined  by  jailer  in  improper  apartments,  3G60. 
conveying  to ;  articles  forbidden  by  rules ;  misdemeanor,  3G62. 

messages,  instruments,  etc.,  to  aid  escape ;  misdemeanor,  3GG2. 
convict  force  on  public  roads,  13.50.     See  Convicts;  County  Convicts, 
county  commissioners  may  farm  out  certain,  1352. 
danger  of  escaping,  militia  called  out,  how ;  compensation,  134.5. 
employed  on  public  works  of  county,  1318   (11). 
e.scaping  from  prison ;  misdemeanor,  3657. 

sheriff  allowing ;  penalty,  2823. 
expenses  of ;  allowance  to  sheriff,  2777. 

guard,  etc.,  for,  2777. 

keeping ;  paid  by  county,  when,  1346. 
farmed  out,  credited  on  fine  and  cost  for  labor,  1352. 

sheriff  has  control  of  their  discipline,  1354. 
guarding  and  removing ;  expense  paid  by  what  county,  1347. 
injury  to,  by  jailer :  misdemeanor,  3061. 

prisoner  has  action  for  damages,  3661. 
insolvent  debtor  discharged  from,  how,  1915-1919. 
insolvents  allowed  certain  compensation  for  work.  1355. 
jailer  confining,  in  improper  apartments ;  misdemeanor,  3660. 
officer  maltreating;  misdemeanor,  3659. 
party  hiring,  may  prevent  escape,  1353. 
preliminary  hearing.  3190-3206.     See  Preliminary  Hearing, 
protected  from  lynching,  how,  2825. 
removal  of,  to  another  county ;  expenses,  etc.,  1285. 

expenses  of,  paid  by  whom,  1347. 
sheriff  transfers,  to  his  successor,  how.  1348. 
solicitor  prosecutes  officer  for  escape  of,  2822. 
United  States  prisoners ;  allowance  for  support  of,  1342. 

confined  in  county  jails,  1342. 
unlawfully  detained ;  discharged.     See  Habeas  Corpus,  Writ  of. 

PRIVATE  STATUTES : 

evidenced,  liow.  1.592-1594. 
pleaded,  how,  500. 

PRIVATE  EXAMINATION: 

contracts  between  hu.sbaud  and  wife  void  without,  when,  2107. 
conveyances,  etc.,  not  good  against  wife  without,  952,  2096.  2097. 
forms  for,  1003,  1004. 

may  be  taken  at  different  time  and  place  of  husband's  acknowledgment,  953. 
not  taken ;  husband's  deed  may  be  registered,  954. 
when  mortgage  to  secure  purchase  money,  958. 
procured  by  fraud ;  effect  on  innocent  purchaser,  etc.,  050. 
who  may  take,  955,  989. 
wife  a  lunatic,  husband  conveys  without,  959. 

PRIZE  FIGHTING : 

engaging  in  ;  felony,  3707. 
gambling  on  :  felony.  3707. 


IXDEX. 

PROBATE : 

appreDtiee's  indenture,  200. 
before  what  officers,  920,  989,  990,  901. 
certificate  of  incorporation,  1139. 
clerli ;  fee  of,  for,  etc.,  277.3. 

passes  on  sufficiency  of,  and  orders  registered,  999-1001. 
except  when  a  party,  99.5. 
forms  for ;  aclinowledgment  by  grantor.  1002. 

adjudication  and  order  of  registration,  1001. 

clerli's  certificate  when  justice  probates,  1000.  i 

when  probate  by  nonresident  without  sale.  1007. 

coi-poration  conveyances,  1005. 

private  examination  of  wife.  1003. 

and  adcnowledgment  of  husband,  together  with,  1004. 
handwriting  of  malter  proven,  when  ;  exception,  99.S. 

of  witness,  jn-oven,  ^\hen,  997. 
husband  and  wife  may  acljnowledge  at  different  times,  etc.,  953. 
irregular  probates  validated,  1008-1030. 

aelviiowledged  by  wife  prior  or  since  husband,  1017. 

adjudication  liy  judge  superior  court,  clerlv  being  party.  1011. 

Buncombe  county  clerk  criminal  coin-t  having  taken,  1020. 

clerk  being  interested,  but  probated,  etc.,  1015. 

clerk  of  inferior  court  having  taken,  1021. 

clerk  of  wrong  county  taking.  1030. 

corporate  articles  of  agreement,  1027. 
conveyances  by  corporations.  1028. 

Greene  comity  de  facto  officers  having  taken,  1029. 

handwriting  of  gi'antor  proven.  1020. 

hu.sband  and  wife  not  acknowledged  at  same  time,  1017,  1018. 

judge,  supreme  or  superior  court,  or  deputy  clerk  having  taken,  1009. 

nonresident  notary  or  cleric  having  taken,  1022,  1023. 

notar.v  having  certified  under  his  private  seal.  1012. 

official  of  state  other  than  of  grantor  taking.  1013. 

probatetl  by  justice  in  wrong  county-,  1017. 

resident  acknowledging  outside  of  state,  1019. 

secretary  of  state  instead  of  governor  certified  to  officer.  1014. 

talcen  under  form  previously  legal,  1025. 

vice  consul  or  consul  general  having  taken,  1024. 

where  "previously"  instead  of  "privately"  used,  lOlG. 
justice's  fee  for  taking.  2788. 

livery  of  seizin  supplied  by,  and  registration,  979. 
not  required  as  to  deeds  made  prior  to  .Tanuar.v  1,  1870,  when,  981. 
private  examination  of  wife.  9.52.  1003.  1004.     See  Private  Examination, 
required,  when,  952.  979.  9S9.  2090.  2097. 
seal  of  officer  required.  993. 

special  commissioner  appointeil  to  take,  when.  991. 
taken  anywhere.  994. 
who  may  take,  926,  989,  990,  991. 

wife  insane,  husband  conveys;  clerk's  duty  as  to.  1000. 
wills;  probate  of,  3122-31.34.     See  Wills, 
witness  dead,  affidavits  evidence,  when,  3121. 
witnesses  and  parties  subpoenaed  to  testify,  996. 

PROCESS : 

amendment  of.  .507. 

criminal ;  indorsed  b.v  officer,  how.  3149. 

issued  and  returnal)lp.  how,  1508,  3148. 
directed  to  officer  of  adjoining  county,  when,  1,530.  1531, 
execution  against  property.     See  Execution, 
not  quashed  for  want  of  form.  when.  1467. 
not  returnable  to  special  terms;  exceptions,  1517. 

1.344 


INDEX. 

I'ltorKSS— co/(//// »('(/.• 

officer  not  disebarging  duty  as  to;  penalty.     See  Amercement. 
order.s.     See  Orders  and  Decrees, 
return  of,  430,  433-436,  1507,  1508,  1517.  2819. 
may  be  made  by  mail,  2819. 

iiflicers  failing  to  make  proper.     See  Amercement, 
service  of;  bv  publication,  442-44G,  762,  766,  772,  888. 

personal.  439.  440,  448.  879,  880,  882-884,  2580,  2583,  2587. 
on  domestic  corporations,  440. 

foreign  corporations,  440,  1243,  1448. 
inebriates,  440. 
infants,  440. 
insane  persons.  440. 

railroad  for  laborer's  wages  in  constructing,' 2018. 
sheriff  or  .lailer  in  habeas  coiTins  proceeding,  1833. 
tenant  in  ejectment  proceeding,  2003. 
i-eturn  sutHcient  evidence  of  service,  1529. 
sheriff  of  adjoining  county  may  serve,  when,  1530. 
prohibited  on  Sunday;  exception,  2837. 
proof  of,  446. 
subpoenas  issued  and  served.     See  Subpoena, 
summonses  issued,  etc.     See  Summons, 
warrants  executed,  etc.     See  Warrants, 
what,  executed  on  Sunday,  2837. 

PKOCESSIONING  : 

Ijoundarles  established  by.  325,  326.  328. 

PRODUCTION  OF  WRITINGS  : 

coriioration  commission's  power  to  compel,  1067. 

on  trial,  1.598,  1599,  1624,  1657. 

party  has  right  of.  in  order  to  inspect,  105G. 

PROFANE  SWEARING  : 

justice  may  punish  for.  in  hearing  of  court;  contempt.  1426. 

PROMISSORY  NOTE: 

action  on  ;  trial,  when.  484. 

cost  hi  action  on,  where  several  defendants,  12(i4. 

(IcHiieil,  23:U.     See  Negotiable  Instruments. 

PROOF : 

amendment  of  i)leadiugs  to  conform  to,  when.  51.5. 
burden  of.     See  Burden  of  Proof, 
deeds.    See  Probate, 
failure  of,  517. 

PROPERTY;     See  Personal  Property;  Real  Property. 

PROSECUTION  BOND ; 

money  deposited  in  lien  of.  450. 

mortgage  in  lieu  of.  265-271. 

pauper  suit  does  not  require,  451. 

plaintiff  gives,  for  cost,  4.50.     See  P.ond  for  Cost. 

surety  company  may  give,  273. 

PROSECUTOR : 

court  determines  who  is,  when,  1295. 
taxed  with  costs,  when,  1295,  1296. 

imprisoned  for  nonpayment,  when,  1297. 

Rev.  XiA.  1—81  1.345 


IXDEX. 

IMJOTEST: 

(if  hills,  notes,  etc..  2302-2310.     See  Negotinlile  Iiistniiiifiits. 
entrv  of  Uiiul,  1709. 

I'KOXY: 

sTocklioUlers  of  corporations  vote  by,  how,  1184. 

PUBLIC  ADMINISTKATOR  :     See  AUuiinistrator.  Public. 

PUBLICATIOX : 

iulvertiseiiieiits  of  notices,  etc     See  Advertisenieut. 
.iniunil  st.itenient  of  iimounts  pairl  county  couiuiissioners.  1320. 
.•ipiilicMtioM  foi"  li(ense  to  plant  oyster  beds,  237.3. 
board  ol  bi^altb  ni.-ikes,  of  contaminated  water  sujiply,  30."i(i. 
county  exliibit  of  receipts  and  disbursements,  1.388. 
county  finance  committee's  statement  of  county  finances,  1.3S0.  1303. 
delimiucnt   taxpayers;   list  of.  published  by   sheriff.  28211. 
free  trader;  married  woman's  relinquishment  of  rijjbt  iniblisbed,  211.">. 
rates  of  transportation  of  carriers,  1109. 
sales  of  i)roperty,  etc.     See  Advertisement. 

secretary  of  state  publishes  annuall.y  list  of  coriiorations,  1244. 
service  of  process  bv :  in  what  cases.  442-440,  702,  70(5,  1199,  ;'.i)37.  :'.12 
3130. 

waiver  of,  443. 

l)roof  of  service,  440. 

service  comjileted,  when.  444. 
tax  deed  not  made  until  notice  by.  to  delinquent.  2903. 
time  in  which  must  take  iilace.  computed  how,  888. 
warehouseman  makes,  of  sale  for  storage  charges,  when.  3037. 

PIP.I.IC  l'.riLOI.\(;S  AND  (JUOrXDS:     see  Volume  II. 
burning  any  imblic  buildings;  felony,  ,3.337,  .3344. 
disorderly  conduct  about ;  misdemeanor,  3742. 
person  tresjiassing  in  any  way  ujion.  misdemeanor,  374.^. 
su]iervision  of.     See  Boai'd  of  Public  Buildings  and  Grounds. 

Pri'.LIC  (JUAUDIA^f ;     See  (iuanli.in. 

PUBLIC  HEALTH:     See  Volume  II. 

contagious  diseases,  notice  of,  must  be  given  b,v  householder,  .■!443. 

bv  physician,  .344,8. 

school  authorities,  3440.  3441. 
suiierintendent  of  health,  3440. 

failure  to  give  notice;  misdemeanor,  3440,  .3-14.3,  .3448. 

pilot,  etc.,  of  infected  vessel  bringing  to  harbor;  misdemeanor,  .34.'i1. 
food  regulations  for  benefit  of.     See  Food;  also  Volume  II. 
householder  must  disinfe<-t.  when  contagious  disease.  ,3443. 
(|U,n-antin(' ;   failing  to  comply  with   re.gulations  ;   mi.sdemeanor,  .3449. 

traveler  from  infected  district  not  obeying;  misdemeanor,  .■i4.'>4. 

violation  of  regulations  as  to  Cajie  Fear  River  station.  34.''iO. 
sanitary  regulations  as  to  contagious  diseases,  ,3443. 

.■IS  to  nuisances  on  premises,  3440. 
v;iccination,  34.^.". 
schools;  authorities  require  certain  certificates  of  pupils,  3441. 

children  exjiosed  to  contagious  diseases  can  not  attend,  .3441. 

health  .lutliorilies  to  notif.v,  of  contagion,  3440, 
state  laboi'iitory  of  hygiene  established  to  iiromote,  3(I."p7. 

analyses  made  by  state  board  of  health,  30."i7. 

aiiproi)riation  for,  .30.57. 
vaccination;  violating  regulations  as  to:  misdemeancu'.  34.')."). 

1.340 


INDEX. 

PUBLIC  UKALTH—foiitiniiCfl: 

water  supidies ;  seneniUy.     See  Water  Siipply. 
analysis  of,  .•;(l.J4-3057. 
depositing  dead  liody  on  watershed  of ;  misdemeanor,  .^8(12. 

human  excreta  on  watershed  of  public;  misdemeanor,  3S57. 
officials  of  municii)ality  :  failing  to  inspect,  misdemeancir,  .".sc.l. 

failing  to  provide  tub  system  for  excrement;  misdemeanor,  38G0. 
person  polluting  any  public,  nusdenieanor,  .38G2. 

damaging  another's,  etc.  ;  misdemeanor,  3456,  3457. 
damaging,  of  any  pnlilic  institution ;  misdemeanor,  3458. 
regulations  concerning  water  companies.     See  Water  Supply. 
sewerage  discharged  into,  misdemeanor.  3858. 

PUBLIC  LANDINGS : 

county  commissioners'  jwwer  to  establish,  1318  (19). 

PUBLIC  MEETINGS  : 

person  wilfully  disturbing  lawful ;  misdemeanor.  3704. 

PUBLIC  SCHOOLS:     See  Volume  II. 

books ;  selling,  at  more  than  contract  price ;  misdemeanor,  38.34. 
census  ;  distrii-t  committeemen  taking,  or  returning  inaccurately,  etc. ;  mis- 
demeanor. ;i,s;!(i. 
county  ofliiers  I'orfeit  office  for  failing  to  account  for  funds  of,  3837. 
disturbing,  defacing,  etc..  school  property ;  misdemeanor,  383S. 
fines,  etc.,  imposed  on  offenders  go  to  suiiport  of,  1378,  2006. 
officers  and  teachers  interested  in  sales  to ;  misdemeanor,  3833.  .3835. 
otiicers  failitig  to  provide  four  months  school ;  misdemeanor,  3837. 
]>roceeds  from  sale  of  strays  go  to,  2835. 
quarantine  against  contagious  diseases,  how,  3440.  .3441. 

PURCHASE  MONET  OF  LAND : 

action  for,  complaint  uuist  state,  what,  408. 

execution  for,  form  of,  627. 

issue  as  to,  submitted  to  jur.v,  480. 

.ludgmeut  for,  states  what,  027. 

mortgage  to  secure,  wife  need  not  sign,  958,  3085. 

PURCIIASEK   FOR  VALUE   WITHOUT  NOTICE:     See  Innocent  Purchaser 
for  Value. 

QUAKERS : 

may  wear  hats  in  court.  1528. 

oath ;  manner  of  taking  by.  2356.  23.58. 

QUARANTINE:     See  Volume  II. 

householder  not  giving  notice  of  contagious  disease  :  misdemeanor,  3443. 

live  stocli  transported  across  line,  misdemeanor,  3294. 

person  failing  to  comply  with  regulations,  misdemeanor,  3449. 

physician  not  giving  notice  of  contagious  disease ;  misdemeanor,  3448. 

l)ilot  of  infected  vessel,  bringing  to  harbor,  misdemeanor,  3451. 

school  authorities  not  performing  i\uty  as  to.  3440.  .3441. 

superintendent  of  health  failing  to  perform  duty,  344S. 

traveler  from  infected  place  violating  regulations;  misdemeanor,  .3454. 

\iolation  of  regulations  as  to  station  on  Cape  Fear  river,  34.50. 

QUABTERMASTER  (iENERAL:     See  Volume  II. 
salaiy  of,  27.52. 


IXDEX. 

QUIETING  TITLE: 

uclion  for,  against  adverse  claiuiant  of  land,  1089. 
right  of  way ;  title  to,  perfected  how,  2500,  2505,  2D0U. 

QUO  WARRANTO :     See  Contested  Elettions. 
action  in  nature  of,  supplants  \vrit.  S2G. 
attorney  general  brings  action  of — 

against  corporations;  to  compel  accounting,  1107. 
to  dissolve,  1198.     See  Corporations, 
preserve  projiertj-,  1197. 
remove  officers,  1197. 
restrain  ulti-a  vires  acts,  827,  1197. 
against  person  usurping  public  office,  827,  832. 
arrest  of  usurper,  wlien,  831. 
defendant's  undertalving  before  reply,  835. 
person  possessing  office  retains  during  trial,  S3(). 
trial  expedited,  833. 
grants  leave  to  private  relator,  wlien,  827,  828. 
costs  in  action  in  nature  of,  1261. 
deiiositious  taken  in  action  of,  1054. 
judgments  in  action  of,  837,  839,  840. 

appeal  from  ;  does  not  stay  execution,  842. 
property  forfeite<l  to  state:  bow  recovei-ed.  845. 
relator  brings  action  for  office,  827-845.     See  Contested  Elections, 
brings  action  for  corporation  dissolution.  1196. 
for  usurping  franchise,  828. 
service  of  summons  and  complaint  in.  S3S. 
writs  of,  abolished,  820. 

RACES : 

entering  horse  for,  out  of  class,  fraudulently  ;  misdemeanor.  .'!429. 
gaming  contracts  as  to,  void,  1687. 

RAILROADS  ;     See  Corporation  Commission. 

abandonment  of  station  by,  prohibited,  when,  1098. 
accidents  may  be  investigated  by  corporation  couuuission.  10ti5. 
action  against,  for  damage  to  or  loss  of  freight.  2034. 
for  injuries :  to  employees,  2646. 

to  pa.ssengers  on  platform,  2628. 
killing  live  stock,  2045. 
loss  of  baggage,  2623. 

violating  rules  of  corjioration  connnission  :  proccdiu'c.  1001.  1092 
wrongful  death,  59,  00. 
baggage  of  passengers  on,  checked,  2623. 

liability  for  lo.ss  or  damage  to,  2623,  2624. 
beating  one's  way  on  train :  misdemeanor,  3748. 

venue  of  action  for,  3748. 
bridges  made  necessary  liy.  maintained,  2700. 
capital  stock  of;  certificate  of  incorporation  states.  2.54S. 
increased,  when  and  how,  25,"i5. 
reduced,  wlicn,  2002,  2003. 
carrier's  remedy  .-igaiiist  carrier  from  which  freight  received.  20.^(;. 
cars;  jilacing  and  loading,  regulated  by  commission,  11(X). 
cattle-guards ;  failing  to  maintain  ;  misdemeanor,  2094,  3753. 
certificate  of  incorporation  of.  fee  for  recording,  2773. 
chapter  on.  controls  all  railroad  corjiorations.  2560. 
charging  exorbitant  rates:  misdemeanor,  3768. 
charter  of,  how  obtained,  12.35.  2.548,  2.549. 

forfeiture  of;  liy  making  discriminations  between  shlpiiers.  2563. 
for  non\iser,  2504. 


INDEX. 

RAILKOADS — coHliiiucO: 

claims,  etc.,  consignee  not  recovering  full  amount,  no  penalty,  li034. 
for  loss  or  damage  to  freight,  settled,  when,  2(!.34. 
penalty  for  failure  to  settle  in  time,  2034. 
condemnation  of  laud  for,  'J."i7ri-2."il)0.     See  Condemnation  Procet^dlugs. 
conditional  sales  of  equipment  must  be  registered,  984. 
conductor,  etc.,  must  wear  badge  when  on  duty,  2004,  2608. 
consignee  entitled  to  delivery  of  freight,  when,  1111. 

conspiracy  to  prevent  officers  from  getting  property;  misdemeanor,  37110. 
consti-uctiou  of,  2.599-2G03. 

cattle-guards  provided,  2601. 

failing  to  maintain  ;  misdemeanor,  3753. 
highways  must  not  be  obstructed,  2569. 
intersecting  with  other  railroad,  2507  (6). 
laborers  in,  bring  action  for  wages,  2018. 
partly  in  another  state,  260.3. 
I>lantation  roads  must  have  crossings,  2601. 
roads  may  be  turned,  when,  2570. 
two  companies  may  construct ;  effect,  2602. 
contracts  for  through  transportation,  1108,  2640. 
corporation  commission's  authority  over,  to — 

authorize  running  certain  trains  on  Sunday,  2613,  2614. 

fix  demurrage  charges,  1100. 

investigate:  affairs  of,  1064,  1066-1071.     See  Corporation  Commission. 

railroad  accidents.  1065.  ' 

prescribe  time  limit  for  delivery  of  freight,  IKiO. 
prevent  discrimination  in  rates,  1095. 

regulate:  handling  of  freight  and  baggage  at  depots,  1094. 
placing  and  loading  of  ears,  1100. 

rales  of.  Kiir,.  1099,  1100,  1104-1112.    See  Corporation  Commission, 
speed  of  trains,  when.  1101-1103. 
require  construction  of  sidetracks,  1097  (5). 
stations  to  be  e.stablished,  1097  (1). 

to  be  changed.  1097  (2). 
union  passenger  depot,  1097  (3). 
corporation  commission ;   powers   generally  over.     See   Corporation   Com- 
mission, 
created  how ;  certificate  of  incorporation  filed,  2548. 
fee  for  charter,  2549. 

not  tiled  until  certain  amount  subscribed,  2.549. 
subscriplion  books  opened,  when  and  how,  2.551. 
crossing  highways;  how  accomplished,  2568. 

company  must  provide  new  road,  etc.,  2568,  2570. 
must  not  obstruct  highway,  2509. 
road  may  be  turned,  2570. 
damage  paid,  when,  2571. 
old  road  continues  till  new,  built,  2572. 
damages  caused  by  construction,  etc. ;  action  barred,  when,  394. 
delivery  of  freight;  lime  limit  for,  after  receipt,  1100. 
demurrage :  rate  of,  fixed  by  corporation  comnnssion.  1100. 
depots:   abandonment  of.  liy  railroad  prohibifed.  when,  1098. 
erection  of,  required  by.  corporation  eoumiission,  when,  1007. 
repairing,  required  by  corporation  commission,  when,  1097  (2). 
union,  required  by  corporation  commission,  when,  1097  (3). 
directors  of;  chosen  how,  2552. 
numbei-  of.  2552. 
term  of.  2.552. 
discriminating;  against  connecting  lines:  misdemeanor.  3751. 
against  A.  &  N.  C.  railway  ;  misdemeanor.  3750. 

venue  of  action  for,  3750. 
in  favor  of  or  against  any  person,  etc.,  fined,  3749. 
prevented  by  corporation  commission.  1095. 

1.349 


IXDEX. 

RAILROADS— <OH^"/ij/f(?; 

dissolution  sale;  purcliast'r  uiay  get  cUarter,  2552.  2505. 
Uraw  bridge;  railroad  must  niaintaiu,  when,  2701. 
drunken  person  ;  nia.v  be  refused  ticket,  2625. 

may  be  forbidden  to  enter  car,  262C. 
eminent  domain;  rigbt  of,  lOitT  (3),  2573,  2575-2.598. 
engineer,  conductor,  brakeman,  Intoxicated  while  on  dutv  :   niisdeineaiKir. 

3758. 
entering  cars  of,  after  being  forbidden,  misdemeanor.  37."i'J. 
establishing,  to  transport  others  than  owners  of  railway;   iiiisdciiicaM'ir. 

37li7. 
fellow-servant  law  abolisbetl  as  to,  2(i4(i. 
freight ;  2030-2041. 

car  loaded  on  siding,  nearest  agent  notified.  2(131. 
charged  classified  rates,  2633,  2G42. 

penalty  for  overcharge.  2033,  3708. 
failure  to  transmit  in  reasonable  time,  rorlciture,  20;!2. 

reasonable  time  defined.  2032. 
handling  of.  at  stations,  regulated  by  connnission.  1004. 
loading  and  unloading,  on  Sunda.y  forbidden.  2013. 
may  be  carried  free  from  certain  parties,  etc..  110.5. 
must  be  received  and  shipped  promptly.  2031. 

refusing  to  receive  and  ship;  penalt.v.  2031. 
paid  at  classified  rates,  consignee  entitled  to  delivery,  20.33. 

failure  to  deliver,  penalty,  2033. 
rates  ))osted,  20.30. 

changed,  how,  2030. 
rebate  allowetl  when  part  lost,  2G41. 
recei])t  re(piired  to  lie  given  shippers,  1111. 
unclaimed,  sold.  2037.  20.38. 

proceeds  of  sale  goes  to  university,  26.39. 
freight  claims  settled  within  what  time,  20,34. 
fuel  seized  by  train  crew,  when,  2017. 

incorporation  of,  certified  copy  of  charter  evidence  of.  2.5.50. 
intoxicated  jierson  entering  train  after  forbidden  ;  niisdemeaiKir.  :'.7."i7. 
injury;  to  buildings,  tracks,  etc.;  misdemeanor.  37.51,. 

to  engine,  cars,  etc.,  by  removing  waste  from  jdunial  lioxes,  :!75'.i. 
railroad  bed.  maliciously;  felony.  37.54. 
witliout  malice;  punishment  for.  3755. 
intersecting  one  another;  facility  must  be  granted.  2.5ti7   ((i*. 
jim-crow  car  law.  2(ilO-2022. 

.iustice  issues  subiio'ua  duces  teciun  for  officer  of",  wlien.  14.54. 
long  and  sliort  liaul  :  regulations  concerning.  1107. 
malicious  in.jvu'y  To  i-.-iilroad  bod  ;  felon.v.  37.54. 

homicide  wIk'U  accident  follows  causing  deatli.  3754. 
maliciously  ]ilacin,g  anytliing  on.  to  olislrucl  tr.-iin  ;  felony.  :{751. 

homicide  wlien  accident   follows  c.-nising  dc.-itli.  37.54. 
municipal  suliscription  to.  •_'5.5S-25( ;2.     See  Klections. 
map  of  ;  filed  witli  <(>niniission.  20(i(i. 

served  witli  ]ietition  for  condenniatinM.  20011. 
merger  of.  bow  accmnplislu'd.  2574. 

new  company,  bow  managed.  2574. 
negligence:  liability  for.  2011.  2024.  2(;2S.  20:;i.  204.5,  2040.     .Se<'  .Vegligence. 
officer,  etc.  :  Mp]i(iii\ted.  liow.  255:!. 

conspiring  with,  to  enilie/./,le  :   felony.  ;il04. 

venue  of  action  .■ig.ainst.  34o:!.  :!4(M. 
cniliezzling  company's  property;  felony,  .3403. 

]ila<ing  iiassenger  car  before  baggage  car,  etc.;  niisdenieanor.  :!747. 
ipiaiiticaf ions  of.  2.552. 
retiring;  must  account  tii  successors,  20(S.' 

f.-iiling  to  turn  over  property;  misilenieanor.  ;!70(i. 
without  badge,  has  no  ;iutbority.  2<;o4. 

i:!.50 


IXDEX. 

ItAnAiOAVi^—coiitinital: 

overcbarges  by,  not  allowed,  2042,  3768. 
i-efundea.  wbeu,  1085,  2043. 

failing  to  refund  ;  penalty,  2644. 
passengers ;  accommodations  provided  for,  2618. 
baggage  of,  cbecked,  2623. 

liability  for  loss  or  damage,  2623.  2624. 
discrimination  in  rates  to,  preventetl  by  corporation  commission,  1095. 
Injury  to,  wbile  on  platform  ;  liability,  2028. 
into.xicated  person  may  be  forbidden  as,  2020. 
refusing  to  pay  fare,  may  be  ejected,  2629. 
separate  cars  and  waiting  rooms  for  races  recjuired,  2610. 
corporation  commission  may  exempt  roads.  2020. 
failure  of  company  to  provide  separate  cars;  penalty.  2(;22. 
when  both  races  can  use  same  car,  2021. 
passes  over,  allowed  to  certain  persons,  1105. 
penalty :  action  to  recover,  in  name  of  state.  2047. 
for  discriminating  between  connecting  lines,  1088. 
failure  to  make  reports  to  commission,  1089. 
refusing  to  obey  orders  of  conimissiou,  lO.S". 
violating  provisions  of  chnjiter  ('(iriioration  romniission.  1(iO(i. 
violating  rules  of  corporation  connnission.  lo,S(;. 
placing  things  on.  to  obstruct  train,  37.54. 

death  resulting  ;  consequences,  3754. 
police  for :  governor  ma.v  appoint.  2(!05,  2000. 
dismissed,  how,  2010. 
must  wear  badge.  2004,  2608. 
oath  of.  2607. 

paid  by  railroad  company,  2609. 
jiooling  freight ;  misdemeanor,  3762. 
powers  of,  enumerated.  2.50)7. 
private  railroad  secured,  how,  2686. 
purchasers  of,  incorporated,  how,  2552.  25(J5. 
rates  of;  charging  exorbitant;  misdemeanor.  2042.  3708. 

contracts  between  railroads  as  to.  approved  by  conimissioii,  llOS. 

void,  when,  1108. 
fixed  l).v  corporation  commission:  1099.  100.  1104. 
stand  until  decision  reversed.   1078. 
v.'K-ated  pending  a]ipeal.  how.  1078. 
nmst  not  charge  greater,  than  in  ]irinted  tariff.  2(>42. 
sclietlule  of;  p\ililislu»(l  by  connnission,  1109. 
posted  in  depot.  20.'!(). 
prima  facie  evidence  of  wb:it.   1112. 
short  haul,  must  not  be  greater  than  long  haul.  1107. 
rebates  to  shippers  prevented  by  corporation  commission,  1(195. 
refusing  to  obey  regulations  relating  to  trackage,  .3751. 
right  of  way;  condemnation  of,  2.57.5-2.599.     See  Condenniatinn  Pnicccdlngs. 
action  for  damages  for.  barred  when.  394. 
no  title  to.  gained  bv  adverse  iiossession.  3.SS. 
width  of.  2.597. 
rolibing  crew  or  passengers  of  train  :  felony.  :i7il5,  3700. 
rolling  stock,  etc..  conditional  sales  of.  nmst  lie  registered.  984. 

subject  of  conditional  sale,  nmst  li<'  niarkeil.  984. 
route  of.  changed,  how.  257;'.. 

coiitribiitors.   etc.,   reimbursed,    when,  2573. 
sale  of.  under  mortgage,  etc.;  restrictions  on  reorganization,  12;!8. 
schedule  of  rates;  authenticated  for  evidence  in  court.  1112. 

of  trains.  2011. 
second-class  passenger  riding  first  after  forbidden;  misdemeanor.  3701. 
separate  a<'commodations  for  the  two  races  reriuirecl  of.  2019-2022. 
shooting  or  throwing  at  cai's  or  locomotive;  misdemeanor.  3703. 


INDEX. 

RAILROADS— (Wi^Z/iMa/; 

sidetracks  required  to  be  i-onstructed,  wlieu  ;  liiuitatiou,  1097   (Tii. 
speed  of  trains  luodifled  by  corporatiou  commission  ;  procedure,  lloi,  nni 
state  owning  interest  in,  reports  to  wboui.  3595. 
stations  establislied  and  depots  built  by  order  of.  1097   (J.  ;ji. 

reiiuired  to  lie  changed  by  corporation  commission,  when.  1ii!)7  C-). 
stockholders  in  ;  liability  of,  2550. 

fiduciaries  holding  stock  not  liable,  2557. 

IJlcdger  liable,  how.  25.57. 

rights  of.  ou  merger  with  another  road,  2574. 
stock  in ;  paid  for.  how,  255-1. 

failure  of  stockholder  to  jiay  ;  effect,  2554. 
subscription  to.  counties  may  make.  2558-2502.     See  Elections. 

bonds  for,  how  issued;  terms,  etc.,  2501. 

taxes  for  payment  of.  levied  and  collected,  how,  2.502. 

must  be  repaid  if  road  abandonetl.  2573. 
storage  charges  fixed  by  eorixiration  conunission.  1100. 
taxes  are  a  first  lien  on  property  of.  2805. 
tickets ;  may  be  refused  to  intoxicated  person.  2025. 

sold  by  scaliiers ;  misdemeanor.  3704. 

unused  tickets  redeemed,  how,  2027. 
trains ;  operation  of,  2611-2017. 

cars  arranged,  how,  2612. 

arranging  passenger  ahead  of  baggage,  etc. :  misdemi'aiior.  ;;74'i 

fast  mail  trains  authorized,  2614. 
local  trains  required,  2614. 

fuel  may  be  seized  for,  how,  2617. 

requirements  as  to  paying  for,  2017. 

run  on  scIumIuIc,  2011. 

schedule  publishwl.  2611. 

shooting  or  throwing  at ;  punishment.  370.3. 

transport  freight  anil  passengers,  2011. 

what,  run  on  Sunilay.  2013,  2014. 

violating  Sunda.v  law  ;  misdemeanor.  3S44. 
transportation  over,  nuist  be  provided  corporation  conunission.  110.5. 
union  depot  required  by  corporation  commission,  when,  1097  (3), 

right  of  eminent  domain  for,  given  to,  1097  (3). 
waiting  rooms:  separate,  required  for  white  and  colored  r.\ces.  I(ill7  i4i 

RANGER : 

register  of  deeds  acts  as,  2833-2835. 

RAPE: 

assault  with  intent  to  commit,  felony,  .3038. 

carnal  knowledge;  of  man's  wife  by  personating  husband;  felony.  3024, 

of  virtuous  female  child  between  10  and  14 :  felony.  3348. 
defendant  convicted  of  assault  ou  indictment  for,  3208. 
defined,  3637. 
evidence  in  action  for,  need  not  show  emission  of  seed,  30.">9, 

REAL  RROPERTY  ; 

acre  of  land,  what  is,  .3005. 

action:  by  personal  representative  for  damages  to,  1.59,  100. 
to  recover  possession  of,  159,  100.     See  E.jeclnKMit. 
quiet  title  to.  1.589. 
remove  cloud  from  title,  1.5,89. 
adminisi ration  sales  of.  08.  SO.  171. 
what  proceeds  from,  realty,  49. 
what  personalty.  48. 
aliens  may  take  and  hold  lands.  1,82. 
boundaries  established  by  processioning,  325,  :!20.  .328. 

13.52 


INDEX. 

REAL  PROPBItT,r—  coj/ tin ued : 

color  of  title.    See  Color  of  Title. 

coudemuation  of,  for  right  of  way,  2580-2598.     See  Coiuleiuuation  Proceed- 
ings, 
contracts  relating  to,  must  be  in  writing,  wlien,  97G. 
controversy  over,  arbitrated ;  award  as  flnal  judgment,  1073. 
conveyances  of,  94G-1O40.     See  Conveyances. 

fraudulent.     See  I'raudulent  Conveyances, 
corporations;  convey,  how,  1005,  1130. 

may  own  land,  1128  (4). 
costs  in  action  concerning ;  judgment,  12G4,  12GG. 
deeds  for,  burut  or  lost.     See  Burnt  and  Lost  Records, 
defined,  2831  (G),  2851. 
descends  how,  155G.    See  Heii's. 

description  of,  vague  in  certain  particulars,  not  fatal,  048. 
devises ;  construed,  how,  3138-314G.     See  Wills, 
entries  of ;  how  made,  1707-1712.     See  Grants, 
estate  held  in,  1578-1590.     See  Estates, 
evidence ;  fltting  land  to  description,  1G05. 

title  of  record  competent,  1.59G-1614.     See  Evidence, 
execution  against,  627. 

justice  can  not  issue,  2030. 
exempt  from  sale  under  execution,  G85. 
forcible  entry  and  detainer  punished,  how,  3G70. 
foreign  corporations  may  deal  in,  1193. 
forfeited  to  state,  how  recovered,  845. 
grants  of  vacant  land,  1G92-1757.     See  Grants, 
guardians;  sales  and  routings  by,  of  ward's,  17SS-1790,  1798-1801. 
homestead  allotment.     See  Homestead. 

husband  can  convey,  when  wife  a  lunatic,  free  of  her  dower,  959. 
idiots,  etc. ;  land  of,  sold,  189G-1S98.     See  Idiots ;  Inebriates ;  Insane  Per- 
sons, 
injury  to  houses,  fences,  etc. ;  misdemeanor,  3G73. 
judgment  by  default  final  in  action  for,  when,  55G. 
lessee  of,  surrendering  to  other  than  landlord ;  misdemeanor,  3682. 
lien  on,  for  labor  and  materials,  2016.     See  Lien. 

for  taxes.     See  Tax. 
limitations,  statute  of,  as  affecting,  380-389.     See  Limitations.  Statute  of. 
lis  pendens,  notice  of ;  effect  on,  460-464. 
malicious  injury  to ;   misdemeanor,   3677. 

can  set  up  bona  fides,  \\ben,  ;;'>ri77. 
married  woman's  separate,  2U93-2(.i9S,     See  Married  Woman, 
partition  of.     See  Partition, 
processioning  of  boundaries,  325,  326,  328. 
Iiurchase  money  of ;  complaint  and  answer,  468,  480. 

execution  for,  states  what,  627. 

judgment  for,  contains  what,  627. 
religious  societies :  hold,  how,  2672,  2674. 

convey,  how,  2673. 
sold  for  taxes,  2887-2898.     See  Tax. 
survey  of,  ordered  by  court  in  ejectment,  1504. 
talcing  unlawful   iwssession  of  another's   bouse  and    refusing  to   vacate; 

misdemeanor,  .3685. 
tax  sale;  bought  at.  redeemed  in  what  time,  2012. 

suit  to  recover,  barred,  2912. 
title  to;  by  adverse  possession.     See  Adverse  Possession. 

in  question,  justice  has  no  juri.sdiction,  1419. 
trespass  on.  action  for,  barred,  when,  .395. 

defendant  disclaiming  title;  effect  of,  863. 


INDEX. 

UEBATES: 

railroiuls  not  allowed  to  give,  1090. 
piiuishmeut  for  giving,  3749, 

REBELLION : 

inciting,  or  assisting  in.  against  state:  felony,  34:57. 

ItECEIVElt: 

Mpiiointnient  of,  by  what  .iudge,  84G. 

court  can  refuse  to  malie.  848. 

in  proceedings  supplemental  to  execution.  (179-082. 

in  what  cases,  (>79-(JS2,  847,  12U3,  1205,  1219. 
auditing  accoiuit.  derli's  fee  for,  2773. 
luind  given  bv  party  moved  against,  none  appointed,  848, 
bond  of,  273,  849.  120.O,  1222, 

mortgage  in  lieu  of,  265, 

surety  company  may  give,  273. 
cost  charged  as  expense,  277. 
claims  against  corporation  disallowed  by.  claimant's  remedy,  1230, 

exception  and  trial  b.v  ,iury,  123(t. 

proven,  how,  1228,  1229. 
c-ompen.sation,  122G,  2797, 

corporation  ;  action  to  place  same  in  hands  of,  1199. 
summons  served,  how,  1199, 

court  may  appoint,  1203. 
corporation  receivers;  law  concerning,  applicable  generally,  when.  S47 
costs  of  receivership  paid  out  of  assets,  122G. 
creditors  of  corporation;  time  in  which  to  pre.sent  claims,  1228. 
discharged,  when,  1220,  1223, 

dying,  no  action  brought  against  cori)oratlon  abates.  41."i. 
execution;  in-oceedlngs  supplemental  to;  rei-eiver  appointed.  (179. 
final  limit  for  creditors  to  present  claims.  1228. 
final  settlement  of;  clerk's  fee  for  audithig,  2773, 
inventory  of  corporate  assets  filed  by,  122.">. 
.lurisdictiou  of  court  over,  840,  1203,  12(14. 
more  than  one,  ma.1ority  may  act,  1223. 
notified  before  judgment  taken  against  corporation,  1208. 
orphan's  estate;  receiver  appointed  for,  when,  1811,  1813. 

not  turned  over  by  receiver,  remedy,  1814,  ISl.";. 
person  refusing  to  witness  before :  punished,  1227. 
powers  and  duties  of,  1222,  1227,  1229. 
Iiroperty  of  corr.oration ;  involved  in  litigation,  sold  liy,  when.  1232. 

vested  in,  when,  1224. 
"receiver"  means  "trustee,"  when,  1222, 
record  of  ajipointment  of,  kept  by  clerk,  91,"i   (22). 
reports  by,  made  to  court,  when,  122."). 
several;  majority  may  act.  12"23. 
substituted  as  ]ilaintiff  in  iiendhig  actions.  1231. 
sunnnons  sei-ved  how,  in  action  for  corporation  receiver,  1199. 
supplemental  proceedings:  appointment  of,  (579. 
tax  on  Iiroperty  in  hands  of,  collected,  how,  2.802,  '2879. 
undertakings  of,  272,  27.3.  849,  1222. 
when  can  he  appointed,  079,  817,  12ii:',  120."i.  1219. 

ItEC(X;XIZANfE:     See  Bail.  Criminal  .Vdien. 

KEC01!1>.\IU.  WRIT  OF: 
.■lulhorized,  .")84. 
Iiond  for  costs  gi\-en  liefore,  issued,  wlieii.  (IdC. 

KKCOKDS.  IlIiKXT  AX1>  LOST:     8ee  Burnt  and   Lost   Itecerds. 

1  :c,4 


INDEX. 

RECORDS,  PUBLIC: 

authentication  of,  1(;1G-1619.     See  Authentication  of  Reeoi-ils  and  Papers 

books  for,  furnished,  how,  89G. 

burnt  and  lost,  revived,  etc.     See  Burnt  and  Lost  Records. 

kept  by  clerk,  915. 

by  register  of  deeds,  2057,  2091,  2(J57. 
secretary  of  state,  1139,  3015. 
larceny  of,  3508. 

obliteration  of ;  misdemeanor,  3508. 
register  of  deeds  copies  and  indexes,  2061,  2GC4,  2065. 

REFEREE : 

administers  oaths,  521. 

appointment  of,  520. 

contempt ;  jiower  to  punish  for,  942. 

duties  of,  521-525.    See  Reference. 

how  chosen,  520. 

powers  of.  521,  522.     See  Reference. 

qualifications  of,  520. 

REFERENCE : 

compulsory,  when,  519. 
c-onsent  to:  when  allowed,  518. 

costs  in,  adjudged,  1268   (6).  

decedent's  estate,  claim  in  favor  of  or  against,  settled  by,  91,  92. 

Iiroceeding  impeached  for  fraud,  92. 
defendant  awarded  inquiry  and  account  by,  when,  543. 
issues  submitted  to,  when.  518,  519. 
.iudgnient  on  referee's  report,  524,  525. 
jui-j-  trial  still  allowed,  519. 
referee ;  duties,  powers,  etc.     See  Referee. 

fee  of.  taxed  against  whom,  1268  (6). 
report  of  referee  contains,  what,  525. 

effect  of,  525. 

exceptions  to,  filed,  525. 

only  stating  facts :  effect,  525. 

when  and  to  whom  made,  524. 
testimony  reduced  to  writing,  523. 
witnesses  attending,  entitled  to  fees,  1299,  1301. 

REGISTERED  NURSE:     See  Volume  II. 
register  of.  kept  by  clerk,  915  (27). 
registration  of,  clerk's  fee,  2773. 
using  title  of,  when  not  licensed ;  misdemeanor,  36.56. 

REGISTER  OF  DEEDS : 

annual  report  of.  to  county  commissioners,  1380,  1.381. 

liond  of.  :i()l.  3(iS. 

clerk  ex  ollic  io  to  board  of  commissionei-s ;  compensation.  1324,  '2606. 

cuunly  olliccr's  annual  reports  registered  by.  1382. 

county  treasurer  demanding  moneys  of;  effect  of  refusal.  1."^9S  (3).  1407. 

(•\ist(i<lian:  of  clerk's  bond,  311. 

of  clerk's  mortgage  in  lieu  of  bond,  268. 
disposing  of  public  laws,  etc.,  to  own  use;  misdemeanor.  o.V.IS. 
duties  of;  to  call  on  clerk  for  instruments,  2(i.55. 
clerk  failing  to  deliver,  what  done,  2656. 
to  certif.v  and  register  copies,  2657. 
file  papers  ali)habetically,  2600. 
keep  general  indexes.  2664,  2665. 

failing  to  keep;  misdemeanor,  3600. 
make  out  tax  lists,  2668. 

1.3.-M 


INDEX. 

UEGISTEK  OF  DEEDS— coHimwef/; 
duties  of — cmitiiiucd. 

to  register  instruments  witbiu  wliat  time,  2Cu8. 
bond  liable  for  failure,  2G59. 
serve  orders  issued  by  commissioners,  26G7. 
transcribe  and  index  books  on  order,  2001. 
election  of,  2050. 

election  returns ;  refusal  of  copy  of ;  misdemeanor,  3398. 
embezzling  funds  or  property  of  his  office;  felony,  3408. 
entry-talcer  e.\  ollicio,  1701. 

failing  to  discbarge  duty  required  by  law;  penalty,  3.">!)0,  .■}592. 
keep  indexes  required  by  law ;  misdemeanor,  3000. 
pay  over  public  moneys ;  penalty,  1383. 
settle  on  notice  from  finance  committee;  penaltv,  1392. 
fees  of,  698,  2770. 

homestead  allotments  registered  by,  698. 
lien,  record  of,  kept  by,  2057. 
marriage  license  issued  by,  when,  2088,  2089. 
penalty  for  issuing  wrongfully,  2090. 
record  of,  kept  by,  2091. 

penalty  for  failure  to  keep,  etc.,  2092. 
mortgages ;  duties  as  to  releasing  and  discharging,  1046. 
oath  of.  2357,  2358,  2360,  2652. 
office ;  burned,  certified  copies  of  records,  evidence,  327. 

certified  copies  of  records  registered,  how,  327,  328. 
when  open,  2654. 
where  located,  2653. 
registration  of  instruments.     See  Registration  by  Register  of  Deeds, 
seal  of  office,  2649. 

provided  by  county  commissioners,  2649. 
strays ;  duties  as  to,  2833-2835. 

swearing  falsely  to  statement  required  by  law  ;  misdemeanor.  .3605. 
tax  lists  made  out  by,  2668. 
vacancy  in  office  of.  filled  by  county  commissioner.*.  1.321,  2051. 

REGISTRATION : 

of  conveyances,  etc.     See  Registration  by  Register  of  Deeds. 
nnr.ses.     See  Registered  Nurse. 
Iiharmacists.     See  I'harmacists. 

pliysici.nis  and  surgeons.     See  Physicians  and  Surgeons. 
Ir.-iilemarks.     See  Trademarks, 
voters.     See  Elections. 

REGISTRATION  BY  REGISTER  OF  DEEDS: 

burnt  or  lost  instruments ;  copy  may  be  registered,  328.  ,337,  338. 

certificate  of,  attached  to  copy,  2057. 

clerk  ;  adjudicates  probate  and  makes  order  of,  999,  1001. 

hands  to  register  instruments  for,  2655,  2656. 
Connor  act,  979-981. 
errors  in.  corrected  how,  1008. 

evidence;  records  or  certified  copy  competent,  .327.  .337.  .")69,  9RS.  1.-.9R.  lOII. 
fees  for,  2776. 

filing  for;  time  of.  indorsed,  26.58. 
inslnnnents  autliorizcd  to  be  registered — 

agricultural  lien  nti  crops,  20.52,  2057. 

ai)prentic(''s  indenture,  20<l. 

Iponds  of  county  officers.  296,  :VI0,  1318  (23). 

conditional  sales  of  i)ersonal  property,  983. 
of  railroad  equipment,  984. 


INDEX. 

REGISTRATION  BY  REGISTER  OF  DEEDS— continued: 
iustriHuents  authorized  to  be  registered — continued. 

coustable's  bond,  302. 

contracts  for  sale  of  laud,  980. 

conveyances  of  laud,  980,  981,  1619. 

copies  of  lost  or  burnt  deeds,  328,  337,  338. 
of  grants,  1610,  1729,  1736. 
of  registered  deeds.  988,  1599. 

decree  eouflrnaiug  i^artition,  2495. 

free  trader  ;  writing  making,  2112,  2113. 

gifts,  986. 

grants,  980,  1729,  1747,  2378. 

judgments,  566,  567. 

jurors  report  as  to  dividing  fence,  1668. 

leases  of  land,  980. 

marriage  licenses,  2091,  2092. 

marriage  settlements,  985. 

mortgages,  chattel,  982,  1040,  2058. 
of  land,  982,  2658. 

partnership,  limited,  agreement,  2524. 

powers  of  attorney,  987. 

surveyor's  test  nf  insti'uments.  3078. 

tax  deeds,  ■J'.i(i4.  UiKis. 

trust  deeds.  Iisu,  licriS. 

larceny  of  books  of,  3508.  

necessary  to  bind  subsequent  purchasers,  980,  982-987,  104ii. 

notice,  constructive,  979,  980. 

obliterating,  or  tampering  with ;  misdemeanor,  3508. 

order  for,  made  by  clerk,  990,  1001. 

order  in  which  instruments  registered,  2658. 

probate  required  before,  987.     See  Probate. 

register  of  deeds ;  duty  of,  as  to,  2655-2665. 

registry  lost,  deed  lost ;  presumed  in  due  form,  ^hen,  1602. 

time  within  which  Instrument  must  be  registered,  1747,  26.58. 

unregistered  deeds  ;  force  of  certain,  980. 

may  be  registered,  how,  981. 
validation  of ;  where  probate  defective.  1008-1030. 

where  grants  improperly  signed,  etc.,  1597. 

REHEARING : 

allowed  in  Justice's  court,  when,  1478. 
affidavit  to  secure,  1478. 
in  supreme  court,  when,  1546. 
application  for,  liled,  1546. 

RELIGIOUS  CONGREGATIONS,  DISTURBING: 

by  certain  exhibitions,  3705. 
disorderly  conduct,  3706. 

RELIGIOUS  SOCIETIES: 

conveyances  by,  how  made,  2673. 

edifices  erected  by,  on  vacant  lands,  title  confirmed,  2674. 

title  of,  to  lands  confirmed,  2672,  2674. 

vested  in  trustees,  2672. 
trustees;  appointed  by,  2670. 

powers  of,  generally,  2670,  2671,  2073. 


INDEX. 

KEMAIxNDEKMAN  : 

coutiiigeut  estate  sold,  liow,  iriiMi. 

sales  validated.  1091. 
liable  for  bettenueuts  paid  by  tenants  for  years.  (!51t. 
may  sell  land  for  partition.  2."i(l!). 
redemption  of  land  from  ta.x  sale  by,  2859. 

REMEDIES  : 

corporation  eommissiou,  eha|]ter  on.  jiives  enninlative.  1093. 
criminal  and  civil,  not  alternative,  353. 
prosecution  of,  by  civil  action.     See  Action,  Civil. 
by  criminal  action.     See  Criminal  Procedure. 

REMOVAL  OF  ACTIONS:     See  Volume  II,  Ai)pendix. 

advancements   from   idiots,   etc.,   estate;   procedure  concerning,   remo\ed. 

when,  1906. 
depositions ;  commissions  to  take,  issued  bow,  when  removed,  1C42. 
injunction  order;  when  judge  can  not  hear,  81."). 
justice;  dead  or  incapacitated,  cause  removed,  14.5(1. 

cause  removed  from,  on  plaintiff's  afiidavit.  when.  14.">.". 
one  county  to  another,  425-428.    See  Venue,  Civil  Action. 

transcript  to  other  county,  when.  428. 
subpoenas  issued  from  what  county  on  removal.  1042. 

RENT: 

a))p(>rtioned,  how.  when  estate  terminated  by  death,  etc..  1987.  1988. 
building  damaged,  surrendered  by  tenant,  what  due,  1992. 
landlord's  remedy  for  noni)ayment  of.     See  Landlord  and  Tenant. 

demand  for,  not  necessary,  when,  1983. 
reasonable ;  recovered  when  no  contract.  1980. 

parol  reservation  evidence  of,  198G. 

REPLY : 

action  for  penalty  ;  reply  of  fraud  to  plea  of  release.  1521. 
court  may  order  made,  when.  485. 
frivolous ;  judgment  thereon,  560. 
insufficient ;  may  be  demurred  to,  486. 
may  l>e  made  to  part., and  dennn-rer  to  part,  485. 
time  of  filing,  484. 
•       when  made  and  what  contains,  485. 

RESISTING  AN  OFFICER  : 

l)unishment  prescribed,  3700. 

RES  .lUDICATA. 

pleaded  by  supplemental  ]ilca.  when.  511. 

RESTITUTION  : 

appellate  court  may  order,  when.  (;(l5,  1495. 

defendant,  defending  after  j\idgment,  receives,  when.  449. 

j\idgnient  of,  in  ejectment  cases.  2009. 

owner  of  property  entitled  to,  on  conviction  of  felon.  ;tl.53. 

RESTORATION  TO  CITIZENSHIP: 
decree  of,  2079,  2680. 
hearing  on  )ietitiou,  2078,  2080. 

evidence  necessary,  2078. 
petition  for.  2075.  20,S0. 

liled,  when  .■md  wlicrc.  2070. 

nollcc  of.  given,  2077. 
prcMC(lni-e  after  imrdnn  or  suspended  judgment.  2680. 

i:;.-s 


INDEX. 

REVERSIONER  : 

liable  for  betteriiieuts  paid  by  tenant  for  life,  OoO. 

redemption  of  land  from  tax  sale  by,  2S59. 

remedies  of,  against  tenant  for  life  or  for  .years,  158"),  ]!)S!),  28.j'J. 

tenant  for  life  has  action  against,  when,  158(i. 

REVOCATION: 

apprentice's  indenture,  1!11,  190. 

eonyeyance  of  future  interest  in  property  reyoked,  buw .  I(i4.". 

letters  :  of  adoption,  179. 

administration  and  testamentar.y,  .31,  34,  .3.5.  37,  38. 

guardianship.  1774,  1782,  1783,  180G. 
wills  ;  how  revoked.  311.5. 

b.v  marriage,  when,  3110. 

not  reyoked.  3117,  3118. 

REWARDS ; 

governor  may  oft'er,  for  fugitive  from  .iustice,  when.  3188. 
payable,  how,  3188. 

RIGHT  OF  WAY:     See  Condemnation  Proceedings. 

RIVERS  AND  CREEKS:     See  Volume  II. 

animal  dead  of  contagious  disease  not  thrown  near.  3298. 

county  commissioners  appoint  commissioners  to  open,  1318  (17). 

di-ainage  of,  by  canal,  etc.     See  Volume  II. 

inspected  when  water  supply  drawn  from.  3046,  3047. 

obstructing;  b.v  felling  trees,  etc.,  misdemeanor,  .3382.     See  Obstructing. 

dams,  races,  etc.,  3381,  3078. 

free  passage  of  fish  in,  2401-2464,  2473,  2474,  2479. 

navigation,  2443,  3553,  3559,  3501. 

watercourses,  generally,  3375,  3376,  33S0,  3382,  3382a. 
refusing  to  comply  with  requirements  to  drain  creeks,  etc..  misdemeanor. 

3377. 
sewerage  not  discharged  in,  when,  30.51. 
supervisors  failing  to  establish  high-water  marks  at  fords  ;  misdemeanor. 

3782. 
throwing  sawdust  in  ;  misdemeanor.  :l:>S2a. 

ROADS  : 

already  laid  out.  declared  public.  2081. 

api)eals  in  matters  concerning.  2683,  2086,  2690. 

bond  given.  2090. 

trials ;  and  ajipeal  to  supreme  court,  2690. 
automobiles:  speed  of  on.  regulated.  3793. 

bridges  across  :  erec-ting  and  repairing.  2097-2705.     See  Bridges, 
cartways  ;  established  b.v  supervisors.  2083. 

t-hanged  or  discontinued,  how,  2094. 

.lury  lays  off  and  asses.ses  damages,  2086,  2689. 

petition  and  notice.  2686. 

timber  roads  allowed  for  five  years.  2094. 

width  of.  2080. 
causeways:  width  of.  2082. 
changed  :  when.  2092,  2693,  2094. 

overseer's  duty  in  regard  to.  2692-2094. 
church  roads ;  established  by  s\iiiervisors.  2087. 

obstructing  or  altering:  misdemeanor.  .3784. 

petition  for.  and  procedure.  2688,  2689. 
convicts  w(n-ked  on.  See  County  Convicts, 
costs  ad.judged.  bow,  in  proceedings  concerning.  126.8  (51. 


IXDEX. 

ROADS — continued: 

county  eouimissioners ;  duty  as  to,  2681,  2G83,  2684,  2691,  2602,  271.'j, 
apiieiUs  from.     See  uiuler  this  liend.  Appeals,  etc. 
power  of,  over  erection  and  maintenance  of,  li'.ls  (Si.  l'i;si,  2i;s 
damages;  for  laying  out  roads,  etc..  appraised.  Imw .  utis'i,  jr.si:.  26S'.i 
jury  to  appraise;  number  of  jurors.  268."..  Jus."!,  JiiMi,  2(;.s'.i. 
for  taldng  timber,  etc..  for  construction.  2728. 
hauling  logs,  etc. ;  person  paying,  not  liable  criminally,  3778. 
person  must  repair  damage  in  five  days,  3778. 
procedure  to  enforce  payment  of  damages,  3777. 
discontinued;  cart\va.vs.  tramways  and  railways,  when,  2694. 

clnn-eh  roads,  when.  2688. 
dividing  townships,  how  worked,  2715. 
drainage  of,  provided  for,  2(i97. 

establishment  of;  by  county  commissioners,  1318  (8),  2681.  26.'^3. 
laid  out,  ho^^•,  2685. 

jury  assesses  damages,  2685. 
oath  of  jury,  23()0. 
petition  for,  must  be  filed,  2684. 
notice  given,  2684. 
ferries  connecting,  2681,  2691,  2708-2710.     See  Ferries, 
footways  erected  by  prescription,  2(j9r). 
gates;  erection  of,  across  cartways,  etc..  2604.     Sec  Oates. 
across  roads,  2711. 

leaving  open  or  injuring,  penalty.  3781. 
hands  to  work  on.     See  imdor  this  head.  Worlving,  etc. 
interfering  with  making ;  misdemeanor.  3784. 
laid  out.  how.  268,"),  2()S6,  2689. 
mile-posts  erected.  2723. 

overseers;  ai)pointed  li.v  order  of  suiiervisors.  2714.  271."i. 
duty  in  changing  roads,  2692,  2693. 

in  tlie  erection  of  footways,  etc.,  260."i. 

footways  erected  by  prescription,  when,  2(i9."). 
liable;  for  neglect,  271.5. 

for  failure  to  make  reports.  2717. 
may  assign  tasks  to  hands,  2719. 
mile-posts  erected  by,  2723. 

failure  to  erect,  penalty.  2723. 
neglecting  duty  ;  penalty,  2724.  3785. 
regarding  bridges,  2696.     See  Bridges, 
report  of;  required.  2716,  2717. 
required  to  serve.  2715. 

not  required  if  served  within  two  years.  271.5. 
resignation  of,  allowed  in  twelve  months,  when.  2715. 
signposts  erected  by.  2722. 

penalty  for  failing  to  erect.  2722. 
railroad  crossing  public;  what  required.  2568-257.3.     Sec  Kailro.ids. 
railway  established  by  supervisors,  when.  2686. 
jury  lays  off,  and  assesses  damages.  2686,  2689. 
jietition  and  notice,  2686. 
timber;  oidv  allowed  for  five  years.  2694. 
width  of.  2680. 
road  steamers  allowed  on,  2727. 
signposts  erected.  2722. 

removing  or  defacing;  misdemeanor.  3783. 
stock-guards  must  be  erected,  when.  2694. 
supervisors;  justices  of  the  iioace  are  board  of.  2681. 
divide  roads  into  sections,  2715. 

failing  to  establish  high-wator  marks;  misdemeanor.  3782. 
hands  allotted  by.  to  overseers.  2715. 
may  cxomiit  frdiii  mad  service,  when.  2726. 


INDEX. 

ROADS — continued: 

supervisors — continued. 

meetings  of,  where  aud  when,  2712. 
overseers  appointed  by ;  service  of  order,  2714,  271.5. 
power  of,  to  establisli  cartways,  2683. 
to  establisli  church  roads,  2687. 

private  raih-oads,  2686,  2689. 
tramways,  2686. 
grant  permission  for  gates.  2711. 
report  of,  to  be  handed  grand  .iury,  2713. 
traction  engines  allowed  on,  2727. 
tramways  ;  established  by  supervisors,  2686. 

jury  lays  off  and  assesses  damages,  2680,  2089. 
petition  and  notice,  2686. 
timber ;  only  allowed  five  years,  2694. 
width  of,  2686. 
who  liable  to  work  on,  2725. 

who  exempt,  2726. 
width  of ;  exception,  2082,  26SG. 
working  ;  by  overseer's  direction,  2721. 
earth  needed,  where  secured,  2719. 
hands  allotted  for,  2715. 
duty  of,  to  work,  2721. 

not  longer  than  two  days  at  one  time.  2721. 
failing  to  attend  and  work;  misdemeanor,  3779." 
may  be  given  tasks.  2718. 
notice  to.  to  work,  2720.  2721. 

failing  to  respond  to.  penalty.  2716,  3779. 
released  from  work  by  paying,  2721. 
substitutes  allowed,  2721. 
timber  needed  for ;  where  secured,  2719. 
who  liable  to  work.  2725. 

who  exempt  from  work,  2726. 
when,  2721. 

ROBBERY: 

dead  bodies,  from  graves,  3672. 
fish,  from  fish-nets,  2478. 

SALARIES:     See  Fees, 
adjutant  general,  2750. 
attorney  general,  2746,  2747. 

clerk  to.  2746. 
auditor  audits  accounts  of  employees  of  general  assembly,  when.  27.35. 
bank  examiners,  2755. 
board  of  internal  improvements,  2758. 

secretary  to,  2737. 
board  of  public  buildings  and  grounds  :  wages  of  laborers,  2762. 

laborers  employed  by,  entitled  to  leave  with  pay.  2703. 

salary  of  secretary,  2737. 
commissioner  of  agriculture,  2749. 

paid  from  what  fund,  2749. 
commissioner  of  labor  and  printing:  assistant,  27.53. 

committee  to  examine  treasurer's  and  auditor's  books :  compensation.  2740. 
contested  elections  ;  how  emoluments  of  office  recovered,  835-837,  842,  844. 

who  gets  emoluments  of  office  pending  hearing,  8.36. 
coi-poration  commissioners  and  clerks,  27,')4. 
dl.spensary  commissioners,  2075. 
general  assembly ;  clerks  and  doorkeepers  of.  2730,  2732,  2734. 

committee  to  examine  treasurer's  and  auditor's  books,  2740. 

copyists  of  bills,  2731. 

members  of,  2729. 
Rev.  Vol.  1—82  1361 


INDEX. 

SALARIES — continued  : 
governor,  2736. 

executive  clerk  to,  2738. 

private  secretary  to,  2737. 
insurance  commissioner ;  and  clerks  to,  2750. 
judge,  superior  court,  2765,  2706. 
justice,  supreme  court,  2764. 

allowance  for  clerk,  2764. 
keeper  of  capitol,  2800. 
marshal  of  supreme  court,  2770. 
mayors  of  touus,  2925. 
municipal  officers,  2!.)25. 
■   oyster  commissioner  and  assistant,  2403. 
oyster  inspector,  2404. 
payable  monthly,  2772. 

paymaster  general ;  payable  out  of  what  fund,  2751. 
presidential  electors,  2761. 
quartermaster  general,  2752. 
reporter  of  supreme  court,  2771. 
secretary  of  state ;  and  clerks  to,  2741. 

indexer  of  session  laws,  etc.,  2733. 

officer  required  to  make  returns  to,  2743. 
state  auditor ;  and  clerks  to,  2744. 
state  board  of  elections,  2760. 
state  librarian,  2748. 

assistant,  2748. 
state  standard  keeiier,  2759. 
state  treasurer ;  and  clerks  to,  2739. 

superintendent  of  public  instruction :  and  clerks  to,  2745. 
towm  officers,  2925. 

SALES : 

administration,  of  personalty,  01-07.     See  Administration. 

of  realty,  08-86.     See  Administration, 
animals  with  contagious  diseases ;  misdemeanor,  .3295. 
attached  property  sold  pendente  lite,  when,  772. 
auctioneers,  217-221.     See  Auctioneers, 
certain  birds  in  certain  counties ;  misdemeanor,  .3472. 
conditional ;  must  be  in  writing  and  registered,  983,  984. 
corn  ;  sale  of  less  than  luishel  at  night ;  misdemeanor,  3809. 
contingent  remainders,  how  sold,  1590. 
corporate  stock  for  unpaid  assessment,  1170. 
cotton  :  buying  or  selling  less  than  bale  at  night :  misdemeanor,  3813. 

buyer  of  less  than  bale  failing  to  keep  records ;  misdemeanor.  3812. 

purchasing,  baled,  not  inspecting,  no  reduction  from  price  on  doIi\('r.\-, 
3811. 
cotton-seed  meal ;  sale  of.  regulated,  3814. 
crops  seized  and  sold  by  person  making  advances,  20.54. 
dispensary  sales  regulated.  2(i77,  2(t77a. 
dynamite  sold  without  special  license;  misdemeanor,  3817. 
estates  of  idiots,  inebriates,  etc.,  sold,  when.  1S96-189S. 
execution  sales,  641-651.     See  Execution  Sales, 
fertilizers;  sale  of,  regulated.  3818-.3S22.     See  Fertilizers;  also  Volume  IT. 

after  being  condemned  ;  misdemeanor,  3820. 

containing  substance  deleterious  to  plants;  misdemeanor.  3.818. 

in  violation  of  regulations;  misdemeanor,  .3821. 

without  tags;  misdemeanor,  3822. 
food  stuffs;  adultornloil ;  misdemeanor,  .3444.     See  Food;  .-ilso  Volume  II. 

butterine.  withdut  label,  .0828. 

concentrated  feeding  stuffs,  without  being  insjiected,  ,3807. 

fish,  preserved  or  fumigated,  as  fresh  ;  misdemeanor.  .3444. 

1362 


INDEX. 

SALES — cdntinved: 

lood  stuffs — continued. 

meat  of  diseased  animal ;  misdemeanor,  3442. 

niisbranded  ;  misdemeanor,  3020,  3444. 

oleomargarine,  without  label,  3828. 

oysters ;  )3reserved,  as  fresh  ;  misdemeanor,  3444. 
not  culled  ;  misdemeanor,  2392. 

sample  of,  to  inspector;  refusing  to  sell;  misdemeanor,  34.52. 

sausage,  adulterated ;  misdemeanor,  3444. 
futiu'e  delivery ;  contracts  lor,  prohibited,  3823,  3824. 
goods  sold,  fraudulently  marked  or  branded ;  misdemeanor,  38.50. 
guardian's  sale  of  ward's  estate,  1778,  1788,  1798-1801.     See  Guardian, 
hides  of  otter,  muskrat,  etc. ;  sold  by  nonresident ;  misdemeanor.  3467. 
innkeeper's  sale  of  baggage  for  board,  2038. 
judicial  sales ;  days  appointed  for,  G43. 

hours  of  sale,  G44. 

postponed  from  day  to  day,  G45. 

proceeds  of,  collected  on  motion.  1524. 

purchaser  at ;  deemed  owner  when  sale  confirmed,  1525. 
who  makes  deed  to,  051. 

tax  on  land  sold  at,  must  be  paid  as  cost,  2857. 
liens  satisfied  by  sale,  how,  2017,  2038. 
liquors.     See  Liquors, 
live  stock ;  butchers  buying,  must  keep  certain  rec'ords,  when,  3803. 

failure  to  keep  record  ;  misdemeanor,  3803. 
markets  and  sales  of  produce  regulated.  2928. 
measures  for  sale  of  grain,  etc.,  .3063-3067. 
meat  of  diseased  animals  ;  misdemeanor,  3442. 
mortgage  sale,  under  power ;  clerk  makes,  when.  266. 

advertisement.  641,  1040,  1042. 
cost  of,  641. 

description  of  property  in,  1043. 
time  posted,  1040,  1042. 

barred,  when,  1044. 

clerk  appoints  person  to  make,  when,  1037. 

made  by  agent;  valid,  1035. 

by  personal  representative,  when,  1031. 

former  sale  under  power,  validated,  1032. 

surviving  mortgagee  makes,  where  more  than  one,  1033. 

taxes  due  must  be  paid  from  proceeds  of,  2857. 
municipal  property,  sold  how  and  by  whom,  2978. 
partition  sales.  2.506-2520.     See  Partition, 
perishable  property,   when,    598,   772,   2638,   3039.   3040.      See   Perishable 

Property, 
poisons,  illegally  ;  misdemeanor.  3655,  3829. 
public,  in  cities  may  be  held,  when,  644. 
railroad  sale  of  unclaimed  freight,  2637-2639. 
strays  sold  by  order  of  register  of  deeds,  2835.     See  Strays. 
tax  sales,  2884-2S98.     See  Tax. 

tobacco  sales  at  warehouses,  3042-3044.     See  Warehousemen, 
violation  of  regulations  concerning,  3S03-3831.     See  Crimes  and  Punish- 
ments, 
warehouseman's  sale  for  storage  charges,  3036-3040.     See  Warehousemen. 

SALOONS  :     See  Elections  ;  Liquors. 

SAWDUST : 

throwing,  in  streams  in  certain  counties;  misdemeanor,  3382a. 

SCALES  :     See  Weights  and  JMeasures. 


INDEX. 

SCHOOL  BOOKS:     See  Volume  II. 

selling,  at  juore  than  contract  price ;  misdemeanor,  3834. 

SCHOOL  CENSUS:     See  Volume  II. 

taking  or  returning,  falsely;  misciemeanor,  3830. 

SCHOOL-HOUSES  :     See  Volume  II. 

burning  of,  or  procuring  the  burning  of ;  felony,  334.0. 

SCHOOL  OFFICERS :     See  Volume  II. 

failing  to  quarantine  against  certain  diseases ;  misdemeanor,  3440.  .3441. 

SCHOOLS:     See  Public  Schools;  also  Volume  II. 

SCIRE  FACIAS: 

writ  of,  abolished,  820.     See  Contested  Elections;  Quo  Warranto. 

SCRIP ; 

accepting  as  money,  issued  without  authority  ;  misdemeanor,  3711. 

issuing,  to  circulate  as  money;  penally,  3711. 

non-transferable ;  employer  issuing,  to  laborers ;  misdemeanor.  37.30. 

SEAL:     See  Volume  II. 

corporation's  power  to  adopt,  1128. 

county  commissioner's  power  to  adopt  a  coimty,  1318  (24). 

defined,  as  to  seal  of  office,  2831  (8). 

execution  sent  out  of  county  must  have.  61G. 

grants ;  seal  to.  lost,  how  replaced,  1740. 

instruments  luider  seal ;  action  on,  barred,  when.  391. 

notary  public  acts  under,  2349,  '2352. 

probate ;  seal  of  officer  attached  to,  993. 

register  of  deeds  ;  seal  of  office,  2049. 

standard  keeper's  seal.     See  Weights  and  Measures. 

summons  should  have,  when,  431. 

SEAMEN : 

appeal  in  criminal  actions  concerning;  procedure  on,  3558. 
enticing  away  from  vessel ;  misdemeanor,  3555. 
harboring,  etc. ;  misdemeanor,  3550. 

what  prima  facie  evidence  of,  3550. 
search  warrants  issued  to  find,  secreted  on  premises  of  another.  .3557. 

SEARCH  WARRANT : 

birds  in  transit,  game  warden  issues,  for,  when,  1809. 
contains  what,  3104. 
form  of,  3103,  3104. 

issued  how  and  for  what.  1809,  3103,  35.57. 
seamen  deserting  and  secreting;  issued  for,  when,  3557. 
procedure  on,  3558. 

SECRETARY  OF  STATE :     See  Volume  II. 

assistant  to,  who  indexes  session  laws,  etc. ;  salary  of.  27.33. 
bond  of,  287. 

surety  company  may  give.  272. 
clerks;  number  and  compensation  of,  2741. 
commissioner.s  of  affidavits;  appointment  of,  certified  to  clerks,  928. 

list  of,  published  in  public  session  laws,  929. 
compensation  of  officers  required  to  make  returns  to,  2743. 


INDEX. 

SECRET .UiY  OP  STATE— conlhiued: 

eoipoi'ations ;  aiimial  list  of  new,  published  by,  1244. 

certificate  of  incorporation  recorded  by,  1139,  1241. 
fee  for  recording,  ]234. 
amendments  to,  recorded  by,  1175. 
taxes  for  charter,  1233. 

created  by  general  assembly,  must  file  act  creating  with,  1235. 

dissolution  of ;  judgment  of,  filed  with,  1211. 

foreign;  duties  with  reference  to,  1194. 

nonuser  of  charter  reported  to  attorney  general  by,  1246. 

process  agent  of,  not  appointed,  secretary  acts,  1243. 

reorganized,  files  certificate  with,  1241. 

reports  of ;  to  secretary  of  state,  1152. 
special,  called  for.  when,  11.53. 
fees  of;  for  various  services,   1194,  1233,  1234.  2742. 

for  corporation  charter,  amendments,  dissolution,  etc.,  1233,  123 

turned  into  state  treasury,  when,  2741. 
grants  issued  by,  1728,  1729,  2378,  2596. 

corrected  by,  how,  1738-1742. 

plots  of,  filed  by,  1734. 

secretary  will  not  issue,  when,  1727. 
oath  of,  23(iO. 
railroads,  duties  with  reference  to  charter  of,  2.548,  2549. 

merger  of,  duties  as  to,  2574. 

real  property  belonging  to  state  granted  to,  by,  2596. 
reports  to  attoi-ney  general  corporations  not  using  charter,  1246. 
•salary  of,  2741. 
trademarks ;  duties  as  to,  3014,  3015,  3017,  3024.     See  Trademarks. 

SECRET  POLITICAL  SOCIETIES : 

person  .ioining  oathhound,  misdemeanor,  3439. 

SEDUCTION : 

defined  and  punishment  prescribed,  3354. 
marriage  a  bar  to  prosecution,  33.54. 
unsupported  testimony  of  woman  not  suflncient,  33.54. 

SEED  :     See  Volume  II. 

number  of  pounds  of  different  kinds  of,  to  bushel,  .3060. 

SEIZIN : 

conveyance  to  use ;  livery  of,  not  necessary,  1584. 

defined  as  to  inheritances,  1556  (r.  12). 

livery  of,  supplied  Iiy  ju-obate  and  registration,  979. 

SERVANT :     See  Master  and  Servant. 

SETTLE5II0NT : 

administrator's,  144-155.     See  Administration. 

county  officers  make,  annually  1380,  1392,  1407. 

guardians.  1807-1809.     See  Guardian. 

nuirriage,  void  as  to  creditors,  when,  963. 

sheriff's,  of  taxes,  with  county.  1376,  1.380,  2812.     See  Volume  II. 

with  state,  2869,  2882.     See  A'oluine  11. 
surviving  partner's,  2546,  2547. 
town  tax  collector's.  2072. 

SET-OFF  : 

defendant  entitled  to,  in  enforcement  of  lien,  2032. 
pleaded  by  answer.  479,  482. 

1365 


INDEX. 

SEWERAGE  :     See  Volume  II. 

allowing  discharge  of,  into  water  supply ;  uiisdemeanor,  3857-3861. 

SHEEP: 

sheep-killing  dog;  failing  to  kill,  after  notice;  misdemeanor,  3304. 
stray ;  taken  up  and  advertised,  2833.     See  Strays. 

SHERIFF :     See  Tax  ;  also  Volume  II. 

actions  against.     See  under  tliis  head,  Liability,  etc. 

for  trespass  uuder  color  of  office,  barred,  when,  397. 
on  bond,  barred,  when,  393. 
amercement  of — 

for  failing  to  endorse  process,  3149. 

execute  process  before  going  out  of  office,  2820. 
furnish  grand  jury  with  list  of  liquor  dealers,  2827. 
make  return  of  process,  2817. 
pay  over  moneys  collected,  2821. 
for  farming  out  office.  2828. 

making  false  return  of  process,  2817. 
releasing  prisoner  without  bail,  3227. 
judgment  nisi  rendered  ;  notice  of,  given  to.  2817,  2S1S. 
arrest  and  bail;  duties  in.  "See  Arrest  and  Bail,  Civil  Action, 
bail  liable  to  sheriff,  when,  75."). 
deposit  in  lieu  of  bail :  sheriff's  dutj-,  7-t4-747. 
sheriff ;  exonerated  when  bail  adjudged  sufficient.  743. 
liable  as  bail  when  defendant  escapes,  749,  7.50. 
may  take  bail,  748. 
arrest  of  accuse<l  person  by.     See  Arrest,  Criminal  Action, 
attachment:  duties  of  sheriff  in.     See  Attachment, 
judgment  in,  satisfied  by  sheriff,  how,  784. 
summons  in,  served,  how,  by.  7G2,  770.     See  Publication, 
warrant  of ;  executed  by  sheriff,  how,  707,  770-772,  777,  778.  140G. 
on  corjiorate  stock.  777,  778. 
return  of,  OS.  769.  1406  (8,  9). 
bail  in  criminal  actions ;  sheriff  may  take,  3208.  3228. 
must  not  become  bail,  3208. 
returns  recognizances  to  court,  3208,  3212. 
bond  of,  298,  308. 

county-  commissioners  take  and  approve,  1397,  2812.  2814. 
justification  of  sureties  to.  2813. 
liability  on.     See  under  this  head.  Liability,  etc. 
suretj'  comjiany  may  give,  273. 
when  acting  as  county  treasurer,  1397. 
claim  aud  delivery:  duties  in.     See  Claim  and  Delivery, 
order  in,  executed  how,  79ri,  790,  799,  801. 

return  made  in  ten  days,  802. 
undertaking  in  :  slieriff  liable  on,  until  sureties  j\istify.  791,  796. 
compensation  of ;  allowances,  637.  638,  2777. 

commissions  for  collection  of  taxes,  1376.     See  Volume  II. 
fees  of,  1138,  1243,  2883,  2903,  2913. 
conspiring  to  wrongly  value  exomiilions;   niisdonieanor,   ."{."S.",   .S.^SO. 
conveyances  by.  (■.'il.  290.").  2906. 
after  term  expires,  Oi'iO. 

executed  l).v  whom,  after  sheriff  dies  or  removes,  951. 
exeoiting  deed  for  land  wrongly  sold  for  tax;  misdeincanor.  3790. 
convicted  of  misdonieanor.  may  l)e  removed,  2811. 
coroner  acts  a.s,  when,  10.52,  2811,  2819. 
county  troasiu'or  :  sheriff  acts  as,  when.  1395. 

bond  increased  when  so  acting.  1.397. 
courts;  sheriff  adjourns,  when  judge  not  present.  l.">1(l. 
death  penalty  executed  by,  how.  328.'-),  3286. 

1366 


INBEX. 

SHERIFF — continued: 

defined,  as  to  collection  of  taxes,  2851. 
deputies  of,  administer  oaths,  when,  2359. 
duty  of,  as  to  ai'iest  and  bail.     See  Arrest  and  Bail, 
attacbuient.     See  Attachment, 
claim  and  delivery.     See  Claim  and  Delivery, 
execution  sales,  629,  631.     See  Execution  Sales, 
jail.     See  Jail, 
jui-y.     See  Jury. 
process.     See  Process. 
to  adjourn  court  In  absence  of  judge,  when,  1510. 
allot  ex('mptions  to  debtor,  687,  695. 
assign  bond  to  keep  prison  bounds  to  plaintiff  in  arrest  and  ball, 

1339. 
assign  dower,  when,  3089. 
collect  taxes.     See  Tax. 

confine  prisoners  in  jail  of  adjoining  county,  when,  1349,  1350. 
destroy  gaming  tables,  3720. 
execute  process,  433,  2817-2819. 
furnisfi  list  of  liquor  dealers  to  grand  jury.  2827. 
furnish  to  clerk  list  of  poll  taxes  paid,  3400. 
guard  jail  against  lynchers,  etc..  1345. 
hang  persons  sentenced  to  death,  privately,  3285,  3286. 
hold  election  on  municipal  railroad  subscription,  when,  2560. 
indorse  process,  433,  3149. 
make  deed  for  property  sold,  651,  2905,  290G. 
notify  justice  as  to  diamond-back  terrapin  caught,  etc.,  2370. 
obey  commitment  from  another  county,  3603. 
pay  over  money  collected  to  proper  person,  2821. 
publish  list  of  delinquent  taxpayers,  2826. 
receipt  for  process,  2816. 
return  process,  433,  2817. 
sell  stray  animals,  when,  2835. 
take  bail  from  prisoner,  when,  3208. 
warn  trespassers  on  public  lands,  3746. 
election  of,  2808. 

embezzlement  by,  of  funds,  etc..  of  office ;  punishment.  3408. 
escape;  allowing  prisoner  to;  fined  and  removed,  1349,  3577. 
apprehending,  duty  to  guard,  1345. 
liability  of  sheriff  for,  in  civil  actions.  749,  2823. 
action  barred,  when,  397. 
execution  ;  duties  as  to.     See  Execution ;  Execution  Sales, 
allowance  made  for  keeping  stock  under  levy,  637,  638. 
exemptions  to  debtor ;  allotted  by,  687,  695. 

conspiring  to  inidervalue  or  overvalue;  misdemeanor,  3.585,  3586. 
failing:  to  attend  tax  sale;  misdemeanor,  3790. 

execute  process  before  going  out  of  office ;  penalty.  2820. 
furnish  clerk  list  who  paid  poll  tax ;  misdemeanor,  .3400. 
furnish  names  of  liquor  dealers  to  grand  jury  :  penalty,  2827. 
give  receipt  when  poll  tax  paid  ;  misdemeanor,  3402. 
indorse  process,  43.3.  3149. 

obey  connnitment  from  another  county,  etc. ;  misdemeanor,  360.3. 
pay  money  collected  to  proper  person  :  penalty.  2821. 
perform  duly :  misdemeanor.  ,3576,  3592. 
publish  list  of  delinquent  taxpayers ;  misdemeanor,  .3.587. 
return  jirocess.  or  making  false  return;  misdemeanor.  4.33,  3004. 
writ  of  habeas  corpus ;  penalt.v.  1S3G. 
writ  of  venire  facias  ;  misdemeanor.  1975,  3602. 
settle  for  moneys  collected  by ;  penalty,  1.383.  1.392.  1407. 
gn Tiling  tables  ;  duty  of  sheriff  to  destroy,  3720. 
habeas  corpus,  disobeying  writ  of:  consequence.s.  1834,  1836. 
insolvent  debtors ;  duties  as  to.     See  Insolvent  Debtor. 

1367 


INDEX. 

SHERIFF— emit  iniicd: 

jail;  custody  and  care  of  by,  2824.     See  .Jail. 

must  be  guarded,  when,  1345. 
judgment  nisi  against,  when,  2818.     See  Amercement, 
jurors ;  drawn  by,  when,  19U3.     See  Jury. 

summoned  by,  1907,  1U08,  1973-1975,  3002. 
liability  of ;  to  amercement,  when.     See  Amercement. 

for  deposit  placed  in  hands  in  lieu  of  bail,  745. 

escape  of  prisoner  in  civil  action,  749,  750,  1349. 
failing  to  use  due  diligence  to  collect  claim,  280. 
improper  undertaking  taken  in  claim  and  delivery.  794,  790. 
not  accounting  to  county  treasurer,  1407. 
releasing  ijrisoner  surrendered  by  bail,  etc.,  3227. 
selling  property  at  tax  sale  illegally,  2910. 

no  liability  for  improper  arrest  of  delinquent  taxpayers,  when,  2878. 
license  issued  by ;  to  auctioneers,  217. 

to  liquor  dealers,  2000. 
liquors ;  sheriff's  duty  to  enforce  law  as  to.  3533,  3534. 

license  issued  by  sheriff  for  sale  of,  when,  2060. 

list  of  dealers  in,  furnished  grand  iurv  by,  2827. 
oath  of,  2358,  2360. 
perjury  of,  3605. 
prisoners ;  confined  in  improper  apartments  by ;  misdemeanor,  3660. 

farmed  out,  governed  and  disciplined  by,  1354.     See  Prisoner. 

must  be  safely  kept  by,  3231. 

transferred  to  successor  by  indenture,  1348. 
process :  service  of.     See  Process. 

falling  to  return,  or  malving  false  return :  conse(]uences.  1836.  1075, 
2817.  3602,  3604.     See  Amercement, 
qualifications  for  office  of.  2809. 
recognizance  taken  by.  in  his  name  as  sheriff,  2829. 
removal  of;  for  allowing  prisoner  to  escape,  3577. 
does  not  remove  as  tax  collector,  3577. 

when  convicted  of  misdemeanor,  2811. 

when  fails  to  give  justified  bond.  281.3. 
reports  to  county  commissioners,  1380,  1381. 
resignation  of,  2810. 

county  commissioners  fill  vacancy.  2810. 
sales  of  property  by.     See  Sales. 

title  made  to  purchaser  by  whom,  051,  950,  951.  2905,  2906. 
strays  ;  sale  of.  by  sheriff,  when,  2835. 
summons  against,  executed  by  whom,  1."i31. 

swearing  falsely  to  statement  reiiuired  by  law:  misdemeanor,  300.5. 
tax  ;  duties  in  collecting.    See  Tax. 

compensation  to  sheriff  for  collecting.  1376.  2,S83. 

lists ;  sheriff  refusing  to  surrender :  misdemeanor,  3788. 

selling  property  not  liable  for,  3790. 

settlement  of,  1376,  1380,  2812.  2869.  2882.     See  Volume  II. 
vacancy  in  office  of,  how  filled,  1321,  2810,  2811.  2813. 

SHOOTING :     See  Crimes  and  Punishments. 

SIDE-TRACKS : 

corporation    connnission    niav   require   cniistructioii    of,    wlion  ;    li  mi  I, -it  ion. 
1007  (5). 

SIGNATUUK  : 

defined,  2831  (10). 

obtained  by  false  ))retense,  person  offending,  guilty  i>f  felony,  .34:?3. 


1368 


INDEX. 

SIGN-POSTS: 

duty  of  overseers  to  erect,  on  public  roads,  2722. 
person  removing  or  defacing ;  misdemeanor,  3783. 

S[>ANDEK:     See  Libel. 

action  for,  barred,  when,  398. 

answer  in  action  for,  contains,  what,  502. 

burden  of  proof  in  action  for,  501. 

charging  innocent  woman  with  incontinency ;  misdemeanor,  3040. 

civil  action  for,  2015. 
complaint  in  action  for,  501. 
costs  iu  civil  action  for  damages  for,  1264,  1260. 

SLAVES: 

conveyances  or  gifts  of  land  to ;  certain  ones  validated,  949. 
marriage  between,  validated,  20S5. 

SLEEPING-CAR  COMPANIES : 

corporation  commission's  duty  and  power  to  investigate,  1064,  1066-1071. 

SOLICITORS  : 

civil  term  not  attended  by,  unless  interested  in  civil  docket,  1508. 
contempt  proceedings  ;  duty  as  counsel  for  court,  939. 
discharged  by  judge  when  intoxicated,  1499. 

competent  attorney  appointed  to  act ;  fees,  1499. 
duty  of ;  as  to  estate  of  orphans,  1811-181.5. 

to  attend  the  taking  of  depositions,  when,  1655. 
discharge  witnesses  as  cases  disposed  of,  1.305. 
e.xamine  books  of  clerk  of  superior  court,  897. 
file  names  of  witnesses  entitled  to  prove  attendance,  etc.,  1305. 
furnish  accused  with  bill  of  particulars,  when,  3244. 
furnish  grand  jury  information  with  regard  to  lynching,  3233. 
move  for  judgment  against  commissioners  for  taxes,  when.  2814. 
order  post  mortem  examinations,  when.  3152. 
pass  on  bills  of  cost  in  criminal  cases,  1256. 
prosecute  action  for  injury  to  bridges,  2705. 

penalty  against  road  overseers,  when.  2714. 
penalty  for  violating  rules  of  corporation  com- 
mission. 1092. 
on  injunction  bond  of  railroad  staying  decision  of 
corporation  commission,  1084. 
officer  for  allowing  prisoner  to  escape.  2S22. 

for  releasing  prisoner  on  insufficient  bond.  3227. 
entitled  to  notice  in  habeas  corpus  proceeding.  1844. 
fees  of.  1084,  1288.  2767,  2768. 
oath  of,  2357,  23.58,  2360. 

SPECIAL  PROCEEDING  :     See  Civil  Procedure. 

adminislration  accounting  cnm))elled  by,  104-131.     See  Administration, 
administrator's  final  settlement,  144-155.     See  Administration, 
adojition  of  minor  children  by.  17-1-181. 
amendment  to  pleadings  in.  717.     See  Amendment, 
appeal  from  clerk.  110,  586,  012. 

duty  of  judge.  013. 

how  and  when  taken,  010,  611. 

no  bond  for  cost  required,  when.  119,  580. 
from  judge  to  supreme  court,  587,  588. 
ai)prenticing  infants,  184-200.     See  Apprentice, 
boundaries  of  land  estalilished  by.  .325,  .326.  328. 
burnt  and  lost  records  perjietuated  liy.  339. 

1369 


INDEX. 

SPECIAL  PROCEEDING— con«Mi«e(J; 

civil  proceilure,  cluijiter  on,  applicable  wlien,  710. 
commenced,  how.  711. 

commissioners  appointed  in,  report  wlien  ;  reports  confirmed,  723. 
no  report  set  aside  for  trivial  defect,  724. 

appointed  to  sell  property,  must  settle,  when,  725. 
complaint  or  petition  :  filed,  wben,  714. 

not  filed  in  time,  nonsuit,  71.'5. 
condemnation  proceedings.     See  Condemnation  Proceedings, 
costs  adjudged  bow,  1255,  1272.     See  Costs. 

in  allotting  widow's  year's  allowance,  1208. 
condemnation  proceedings,  1269  (3). 
partition  proceedings,  12GS  (7). 
credits  on  judgments  enforced  by,  579. 
defenses  pleaded  in  ;  duty  of  clerk,  717. 
defined,  348. 

demurrer  to  evidence  in,  539. 
devisee,  beir,  etc.,  bring,  for  contribution,  58. 
distributee,  etc.,  absent  seven  years,  next  of  kin  begins,  151. 
docket  kept  by  clerk,  915  (7). 

dower  of  widow  assigned  by,  3087-3090.     See  Dower, 
execution ;  leave  to  issue,  after  three  years,  (120. 
ex  parte  petition  ;  procedure,  718,  719. 

fraudulent  conveyances  of  decedent  attacked  by,  50.  72,  73. 
homestead ;  allotnieut,  exceptions  to,  by  creditor,  699. 

reallotnient  of,  by,  691. 
idiots,  inebriates,  etc. ;  guardian  for,  appointed  by,  1890. 
insolvent  debtor  brings,  for  discbarge,  1915-1949. 
issues  of  fact  in,  transferred  to  civil  issue  docket.  529,  586,  717. 

no  undertaking  for  costs,  529,  586. 
issues  of  law  ;  decision  on,  appealed  from,  586,  610-613. 
judgment  in.  approved  by  judge,  when,  720,  722. 
judgments  destroyed,  perpetuated  by,  how,  332. 
legacies  recovered  by,  144. 
legitimating  bastard  child  by,  263.  264. 

mill  owner's  right  of,  to  dam  water  or  build  race,  etc.,  2131. 
mills  established  by,  2122-2i:i().     See  Mills,  Public, 
name  of  person  changed  by.  214(;-21."iO. 
orders  in,  approved  by  judge,  when,  720,  722. 
partition  of  property  by,  248.5-2.'J20.     See  Partition, 
petition  filed,  when,  714.     See  Petition. 

not  filed  in  time,  nonsuit,  715. 
processioning  of  land  by.  .325,  326,  328. 
remedies  by,  346. 

report  of  commissioners  in.  not  set  aside  for  trivial  defect,  724. 
sale :  of  estate  of  ward  by,  1798. 

estate  of  idiots,  inebriates,  etc.,  1806-1898. 
land  of  decedent  by,  68-80,  79,  80,  1.30,  131. 
sunnnons  in,  contains  what,  712. 

return  of.  713. 

service  of,  within  what  time,  71.3. 
supplemental,  to  enforce  execution,  667-684.    See  Supplement;!  1  Proceedings, 
surety  in  danger  of  loss,  remed.v  by,  .33,  1783. 
surveys  and  iilots;  correction  of  errors  in,  17.38. 
time  to  file  jileadings  enlarged,  716. 
widow's  year's  allowance  allotted  by,  .3096-311(1. 
wills;  i)r"()bate  of.  by,  3T22-31.34. 

proving  contents  of,  when  lost,  331. 

SPIPvIXrOUS  LIQUOUS:     See  Liquors. 


INDEX. 

SPUING  : 

polluting,  a  misdemeanor,  3456. 

STANDARD  KEEPER : 

aijpointiiieut :  of  county,  3072. 

of  state,  3008. 
bond  of  county,  300,  308. 
couiijensation  of,  2T.'>9,  2780. 
duties  of  county.  3073,  3074. 

of  state,  3009-3071. 
oaths  of,  2357,  2358,  2360,  3072. 

weights   aud  measures   examined   by,   etc.,   3063-3079.     See    Weights   and 
Measures. 

STATE  AUDITOR  :     See  Volume  II. 

general  assembly ;  accounts  of  employees  of,  audited  by,  when,  2735. 

grant  of  land  issued  on  auditor's  certificate  of  payment,  1728. 

no  warrant  on  oyster  fund  issued  unless  commissioner  approves,  2422. 

number  and  compensation  of  clerks  to,  2744. 

oath  of,  2357,  2358,  2360. 

salary  of,  2744. 

STATE  BOARD  OF  ELECTIONS :     See  Volume  II. 
members  of,  compensation  of,  2760. 

STATE  LABORATORT  OF  HYGIENE : 

conducted  by  state  board  of  health,  3057. 
maintained  by  tax  on  water  companies,  3057. 
object  and  work  of,  3057. 

STATE  LIBRARIAN :     See  Volume  II. 
compensation  of,  and  of  assistant,  2748. 

STATE  OFFICERS  :     See  under  name  of  office ;  also  Volume  II. 

STATE  OF  NORTH  CAROLINA  : 

appeals  in  criminal  cases,  when,  3270. 

claims  against,  how  prosecuted,  1537,  1538. 

conspiracy  against,  to  hinder  execution  of  its  laws  ;  felony.  3438. 

costs  ;  state  liable  for.  when,  1250-1263.     See  Costs. 

limitations,  statute  of,  runs  against,  when,  375. 

party  to  quo  warranto  proceedings,  when,  827,  828. 

property  forfeited  to.  recovered,  how,  845. 

rebellion  against ;  or  aiding  or  abetting :  felony,  .3437. 

undertaking  on  appeal  of,  not  required,  1077. 

STATE  PRISON :     See  Convicts  ;  also  Volume  II. 
convicts  farmed  out.  still  under  control  of,  1358. 

STATE  STANDARD  KEEPER  :     See  Standard  Keeper. 

STATE  TAX  COMMISSIONERS  : 

appropriation  to  put  law  concerning,  into  effect.  2754. 
assessment  of  taxes  wrongly  made,  connected,  how.  by,  1125. 
back  taxes,  collected,  how,  by,  1126. 
clerks  to,  duties  of,  with  regard  to  record,  1121. 
(■(irporation  commissioners  constitute,  1119. 


INDEX. 

STATE  TAX  COMMISSIONEatS— COT!<m«ed.- 
duties  of,  genei'iilly,  1124. 

to  corieft  ineguliuities  aud  discTiiuiiialiou  iu  assessiug,  1124  (3). 
have  oue  mejuber  visit  each  county  to  secure  iuformatiou,  1124  (4). 
investigate  revenue  laws  and  systems  of  taxation,  etc.,  1124  (U). 
report  to  general  assembly  amounts  of  taxes  classilied,  etc.,  1124  (7). 
require  certain  reports  of  county  aud  municipal  oliicers,  1124  (5). 
see  that  tax  oHicers  do  tbeir  duty,  1124  (2). 
meetings.  Low  and  when  called,  1122. 

oatli  of  members  taken  and  filed  with  clerk,  1120,  2357,  235S,  23C0. 
person  refusing  books  or  testimony  to;  misdemeanor,  3792. 
powers,  generally,  1123. 

to  investigate  state  records,  etc.,  1123. 
issue  subpoena,  etc.,  1123. 
property :  omitted  from  tax  list,  how  placed  on,  1125. 

unlisted,  how  back  taxes  collected,  112G. 
regular  meetings,  when  held,  1122. 
report  to  governor  annually,  1127. 

report  printed  aud  distributed,  1127. 
shall  have  access  to  all  public  records,  state,  county  and  municipal,  1123. 
taxable  values,  how  revised  by,  1125. 
tax  list  grossly  irregular,  general  review  had,  how,  1125a. 

STATE  TREASURER :     See  Volume  II. 
bond  of,  2S8. 

surety  company  may  give,  272. 
clerks  to ;  bonds  of,  289. 

number  and  compensation  of,  2739. 
fraudulently  making  wrong  entries  or  reports ;  misdemeanor,  3600. 
oath  of,  2357,  2358,  2360. 
oyster  f  mid  kept  by,  how,  2422. 
salary  of,  2740. 

STATION :     See  Railroads. 

abandonment  of,  by  railroad,  prohibited,  when,  1098. 
establishment  of,  required  by  corporation  commission,  when,  1097. 
•repairing,  required  by  corporation  commission,  when,  1097  (2). 
union,  required  by  corporation  commission,  when,  1097  (3). 

STATUTE  OF  LIMITATIONS:     See  Limitation.s.  Statute  of. 

STATUTES : 

construction  of.     See  Statutes,  Construction  of. 
of  fraud.     See  Frauds,  Statute  of. 

limitations.     See  Limitations,  Statute  of. 
private,  pleaded  how,  500. 
proven  how,  1592.  1594.    See  Evidence. 

STATUTES,  CONSTRUCTION  OF : 

"adulterated"  means  what  in  regard  to  food  stuffs,  .3444. 

amended  statute  construed,  how,  2832. 

"cruelty  to  animals,"  how  construed,  3297. 

"dealer  in  intoxicating  drinks"  construed,  3524. 

"embezzlement"  cor.strued  to  apply  to  whom.  3408. 

"following"  njeans  what  with  reference  to  scetlon.s,  etc.,  2831   (7>. 

"in  writing"  ni<'ans  in  print,  etc.,  when,  in,  2831   (10). 

joint  authority  to  lliri<e  or  more  olRcers  construed  how,  2>S31   (2). 

leap  year;  2.Stb  and  21)th  of  February  in,  all  one  day,  2831  (4). 

masculine  gender  imijorts  feminine,  2831    (1). 

"month"  means  what,  2831  (3,  12i. 

1372 


INDEX. 

STATUTES,  CONSTRTTCTION  OF— continued: 
"oath"  means  wbat  iu,  2831  (5). 
"person"  means  corporation,  etc.,  in,  2831  (6). 
"personal  property"  includes  money,  goods,  chattels,  etc.,  2831  (U). 
"preceding"  means  what,  with  reference  to  sections,  etc.,  2831  (7). 
"property"  includes  both  real 'and  personal,  2831   (6). 
railroads;  chapter  on,  applicable  to  all  railroads,  when,  2506. 
"real  property"  means  lands,  tenements  and  hereditaments,  2831   ((J). 
repeal  of  statute  does  not  affect  actions  pending,  2830. 
"seal"  defined,  2831  (8). 

singular  number  means  also  plural,  2831  (1). 
"state"  means  what,  as  applied  to  United  States,  2831  (11). 
taxation  ;  chapter  on  collection  of,  how  construed,  2849-2851. 
"United  States"  includes  District  Columbia,  territories,  etc.,  2831   (11). 
"will"  means  codicil  as  well  as  will  in,  2831  (9). 
"written"  means  printed,  lithographed,  etc.,  in,  2831  (10). 
"year"  means  what,  2831  (3). 

STATUTORY  LIABILITY : 

action  to  enforce,  barred  when  ;  e.xception,  305. 

STAY  OP  EXECUTION :     See  Execution. 

STEAMBOATS:     See  Navigation;  Vessels;  also  Volume  II. 
accident  to,  investigated  by  corporation  commission,  1065. 
companies  operating ;  corporation  commission's  power  over,  1094. 1095, 1099. 
discriminating  between  connecting  lines :  penalty,  1088,  3751. 

between  persons  in  transportation  charges;  misdemeanor, 
3749. 
freight  may  be  carried  free  for  certain  parties  and  associations,  1105. 
long  and  short  haul,  regulations  concerning,  1107. 
notice  to  bridge  owners  to  put  in  draw,  2699. 
passengers  riding  first  class,  having  second-class  ticket,  etc. ;  misdemeanor, 

3761. 
passes  on,  allowed  to  certain  persons,  1105. 
penalty ;  for  discriminating  between  connecting  lines,  1088. 

for  refusing  to  obey  orders  of  corporation  commission,  1087. 
rates  for  transportation;  filed  with  corporation  commission,  1100. 
regulated  by  corporation  commission,  1099,  1104-1107,  1109. 
schedule  of,  how  authenticated  for  evidence  in  court.  1112. 
transportation  on,  must  be  provided  corporation  commission,  1105. 

STEVEDORE : 

liability  of,  for  laborer's  wages  in  unloading  vessels,  2041-2048. 

license  of,  2050,  2051. 

lien  of,  for  unloading  vessel,  2041. 

STOCKHOLDERS:     See  Corporations. 

STOCK,  LIVE  :     See  Live  Stock. 

STOCK  LA"W : 

allowing  stock  to  run  at  large ;  misdemeanor,  3319. 
damages  by  stoclv  recovered,  how,  1679. 
elections  on  :  county  voting ;  result,  1672. 

carried  in  favor  of,  when  goes  into  effect,  1675. 

district  voting  on ;  result,  1674,  1675. 

how  held,  1676. 

new  registration  may  be  ordered,  1677. 

township  voting ;  result,  1673. 

1373 


INDEX. 

STOCK  IjAW—cmtinued: 

fences :  built  aroiiud  territory,  16S3-1G8G. 

tearing  down,  surrounding  stocli-law  territory;  misdemeanor,  3-tll. 

what  are  lawful,  IGUU,  1661,  1684.    See  Fences, 
impounded  stock;  failure  to  feed;  misdemeanor,  3311. 

any  one  may  feed,  1082. 

receiving  or  releasing  unlawfully;  misdemeanor,  3310. 
impounding  of  stock  ;  fees  for,  1679. 

any  one  may  impound,  1679. 

unlawfully ;  misdemeanor,  3309. 
Injuring  lands  by  driving  stock  ;  misdemeanor,  3321. 

action  for  damages  barred  in  tifteen  days.  3321. 
land  owners :  ad.ioiuing  territory,  may  be  included  in,  1678. 

two  or  more  can  institute  law  for  themselves,  167S. 
riding  or  driving,  over  cultivated  lands;  misdemeanor,  3320,  3.321. 
sale  of  impounded  stock;  how  made,  1680. 

impounder  misajipropriating  receipts  from  ;  misdemeanor.  3312. 

notice  of.  to  o\^■ner,  1680. 

proceeds  disposed  of,  how,  1680. 
"stock"  defined  in.  1681. 
ten-itory  of ;  ad.ioining  landowners  may  be  included,  1678. 

driving  or  toling  stock  of  another  into ;  misdemeanor,  3309. 

owner  can  not  tiirn  stock  outside  of ;  proviso,  3322. 
withdrawal  of  certain  territorj'  from  operation  of,  1675. 

territory  withdrawing  must  build  fence,  167.^). 

STRAYS : 

appraisal  of,  before  sale,  2835. 

failing  to  comply  with  law  as  to ;  misdemeanor,  3300. 

keeping;  cost  of,  fixed  by  county  commissioners,  28.34. 

license  to  look  foi',  on  land  of  another ;  effect  of,  3688. 

owner  may  reclaim,  how.  2834. 

person  taking  up,  nmst  notify  owner,  2833. 

owner  not  known,  must  notify  register  of  deeds,  2833. 
register  of  deeds ;  publishes  notice  of,  2833. 
fee  for  publishing.  2833. 

records  description  of,  2833,  2835. 
fee  for  recording,  2833. 
sale  of;   by  sheriff,   2S,35. 

notice  of,  jmblished.  283.5. 

proceeds  of,  disposed  of,  how,  2835. 

STREAMS:     See  Drainage;  Navigation;  Rivers  and  Creeks. 

STREET  RAILWAYS ; 

corporation  commission's  duty  and  power  to  investigate,  1004,  1066-1071. 
discriminating  between  connecting  lines;  penalty,  1088.  3751, 

between  persons   in   transportation   rates  charged ;   misde- 
meanor, 3749. 
eminent  domain;  right  of.  given  to,  2575. 
fenders;  failing  to  have,  on  street  cars;  misdemeanor,  2016,  ,3801. 

corporation  commission  ma.v  excuse,  2616,  ,3801. 
freight  ma.v  be  carried  free  for  certain  parties  and  associations,  1105. 
Incorporated  under  general  law.  1138.     See  Corporations, 
long  and  short  haul,  regulations  concerning,  1107. 
passes  over,  allowed  certain  iierson.s,  110.5. 
penalty:  for  discriminating  between  connecting  lines,  10SS,  37.51. 

discriminating  between  persons  in  transjinrtation  charges.  3749. 
for  refusing  to  obey  orders  of  corporation  commission,  10.S7. 
rates  of  transportation;  schedule  filed  with  corporation  commission,  1109. 
regulated  by  corporation  commission.  1099.  1104-1107,  1109. 
schedule  of,  how  put  in  evidence  in  court,  1112. 
1374 


IjSTOEX. 

STREET  UAILW AYS— continued : 

riglit  of  way  of,  1133,  1571-15TG.     See  Condemnation  Proceedings, 
tampering  witli  plant  or  equipments  of;  misdemeanor,  3G66. 
transportation  over,  must  be  provided  corporation  commission,  1105. 
vostibuled  fronts ;  failing  to  have,  on  cars,  in  winter ;  misdemeanor,  2015, 
3800. 
corporation  commission  may  excuse,  2615. 

STREETS : 

mayor  may  sentence  prisoner  to  worli  on,  2937,  3596. 

no  woman  so  sentenced,  3596. 
title  to,  not  acquired  by  adverse  possession,  389. 
town  commissioners'  duties  as  to,  2930. 

STUD  HORSE: 

allowing,  to  run  at  large ;  misdemeanor,  3323. 

e.xbibiting  witbin  half  mile  of  religious  meeting ;  misdemeanor,  3705. 

owner  of,  has  lien  on  colt,  for  season,  2024. 

SUBORNATION  OF  PERJURY: 

defined,  and  punishment  prescribed,  3016. 
indictment  for,  substance  of,  3248. 

SUBPOENA:     See  Process  ;  Witnesses. 

attorney  may  issue,  884. 

cause  removed,  from  what  court  subpoenas  Issued,  1642. 

clerk  issues.  901,  1639,  1641,  184.5. 

served  by  whom,  884,  1123,  1639. 
conveyances ;  witnesses  and  parties  to,  subpoenaed  to  testify,  996. 
corporation  commission  issues,  in  cases  before  it.  1070. 
county  commissioners,  power  of,  to  authorize  chairman  to  issue,  1318  (22). 
deposition ;  subpoena  for  witness  to  give,  issued  how,  1C40,  1652-1655. 
duces  tecum  ;  issued,  when,  1454,  1641. 

compliance  with,  enforced  when,  1454. 
habeas  corpus  ad  testificandum  issued,  when,  18.5.5-1861. 
habeas  corpus  proceeding ,  witnesses  before,  procured  by,  1845.- 
,1ustice  issues,  1452. 
party  may  issue.  884. 

returnable  to  special  terms  of  court,  when,  1517,  1518. 
service  of,  may  be  by  any  one  not  a  party,  884,  1123,  1639. 

fee  for  serving,  2777. 
state  tax  commissioner's  power  to  issue,  1123. 

SUBROGATION  : 

purchaser  at  tax  sale,  to  remedies  of  state  or  county,  2912. 
surety,  to  remedies  of  creditor,  2843. 

SUMMONS  :     See  Process ;  Publication, 
action  commenced  by,  359,  429,  1444. 
administration  accounting;  summons  to  compel,  l(l(!. 

in  proceeding  to  sell  land  for  assets,  130. 
alias  and  pluries,  when  original,  not  served  in  time,  437. 
attachment  and,  served  on  garnishee,  779. 

service  of  summons  and  warrant  by  publication.  706,  770. 
bond  required  before  issuing,  when.  450. 
claim  and  delivery;  summons  issued,  when,  790. 
condomnation  proceedings  ;  contains;  what,  2580. 
contains  what,  430,  712.  1415. 
contested  election ;  summons  in.  838. 
controversy  over  dividing  fence;  contains  what.  1600. 

1375 


INDEX. 

SVUMONS— continual  : 

diSL-outinuauee  of  action  when  chain  of  summonses  brolsen,  4:58. 
docket  Ivcpt  by  elerlv,  915. 
docketing ;  clerk's  fee  for,  2773. 
fees :  of  clerk  for  issuing,  2773. 
of  justice  for  issuing,  2788. 
sheriff,  for  serving,  2777. 
foreign  corporation  given  twenty  days  to  appear  before  justices,  1448. 
guardian  ad  litem  ;  bow  served  on,  400. 
issuance  of,  3.")U,  429,  1444,  1447,  1449,  1450.    See  Process, 
after  judgment,  against  one  jointly  indebted,  456. 
alias  and  pluries,  when,  437. 
prosecution  bond  condition  precedent  to,  450. 
to  several  counties,  432. 
when,  359,  429,  1444. 
joint  and  several  debtors,  not  all  served,  how  judgment  entered,  455. 
justice  issues  ;  what  contains,  144.5.     See  Courts,  Justices', 
may  issue  to  any  point  in  his  coimtj-,  1425. 
to  another  county,  when,  1447,  1449,  1450. 
lis  pendens ;  ineffectual  without,  401. 
mandamus,  writ  of;  application  for,  begun  by,  822-824. 
mortgage  in  lieu  of  prosecution  bond,  200,  270,  271. 
partners  omitted  to  be  joined  in,  judgment  against,  how  rendered,  455. 
return  of,  430,  433,  713.  1440.     See  Process, 
must  show,  what,  440. 

to  what  court,  when  not  published  In  time,  436. 
when  issued  ten  days  before  term,  433,  435. 
to  several  counties,  432. 
within  ten  days  of  term,  434. 
when  served  within  ten  days  of  term,  435. 
service  of :  by  sheriff,  2819.     See  Process, 
by  copy,  when,  440. 

publication  :  complete  when,  444. 
ini  action  to  dissolve  corporation,  1109. 

attachment  proceedings,  702,  700,  772. 
manner  of,  443. 

not  complete  before  term,  when  returnable,  436. 
time  of,  how  computed,  888. 
when,  442. 
by  reading,  when,  439. 

from  justice's  court  on  foreign  corporations,  how,  1448. 
gives  jurisdiction.  445. 
bow  made  on  individuals,  439. 
how  proven,  440. 

in  action  trying  title  to  oflice,  838. 
attachment  jiroceedings,  442-444,  762. 
condemnation  proceedings,  2.580-2583,  2599. 
ejectment  of  tenant  by  landlord,  2003. 
of  justices ;  fees ;  demanding,  in  advance,  1446. 

within  what  time,  1440. 
not  necessai-v  when  defendant  voluntarily  appears,  447. 
not  on  Sunday,  2837. 
on  coi'poralions,  440. 

corporation  and  creditors,  etc.,  for  dissolulion,  1199. 

foreign  corporations,  1243. 

infants.  440,  441. 

insane  persons,  440,  441. 

joint  and  several  debtors,  4.55-459. 

jurors,  1434,  1438.  1907,  1908,  1973,  1974,  1970. 

nonresident  personally,  448,  449. 

one  personal  representative,  binds  all.  101. 

partners,  455  (4). 

1376 


INDEX. 

SUMMONS— continued: 
service  or — contlnucr], 

thirty  days  liefore  teitn  ;  effect,  484. 

wlien  issued  witliiu  ten  days  of  term,  4.34. 

witliiu  teu  days  of  term,  435. 

witliiu  what  time  made,  433. 

with  warrant  in  attaclimeut  proceedings  by  puhlieatioii,  7(iij,  77U. 
special  proceedings  begun  by,  712. 

SUNDAY :     See  Holidays. 

acts  to  be  done  on,  can  be  dene  ue.^t  day,  283!). 
arrest  in  civil  action  on,  forbidden,  727. 
fishing  on,  with  nets  or  seines ;  uiisdemeanor,  3841. 
hunting  game  of  any  Ivind  on  ;  misdemeanor,  34.5!). 

wild  fowl  on;  misdemeanor,  3843. 
not  counted  in  computing  time.  887. 
oysters ;  taking,  on  Sunday  ;  misdemeanor,  2384. 

unloading,  from  boat,  on  Sunday ;  misdemeanor,  2394. 
process  executed  on,  when,  2837. 

selling  Intoxicating  liquors  on  ;  misdemeanor,  2077,  3.532. 
taking  oysters  on ;  misdemeanor,  2384. 

trains  run  on,  except  as  allowed  by  law;  misdemeanor,  ,3844. 
work  in  ordinary  calling  on,  forbidden,  2836. 

SUPERINTENDENT  OF  PUBLIC  INSTRUCTION:     See  Volume  II. 
county ;  salary  of ;  proviso,  2782. 
state ;  number  and  compensation  of  clerks  to,  2745. 
salary  of,  2745. 

SUPERIOR  COURT :     See  Courts,  Superior. 

SUPERSEDEAS,  WRIT  OF  : 

authorized,  584. 
issued,  when,  584. 

SUPERVISOR  OF  ROADS: 

duties,  etc.,  2712-2714.     See  Roads. 

SUPPLEMENTAL  PROCEEDINGS : 

costs  allowed  witnesses  in,  when,  1273. 

debtor  arrested  in ;  procedure,  G71. 

debtor  and  bailee  of  judgment  debtor  examined,  how,  075,  076. 

debtor  of  judgment  debtor  may  pay  off  execution,  074. 

disobedience  of  orders  in,  contempt,  084. 

execution :  not  returned,  creditor  proceeds,  how.  068. 

returned  unsatisfied,  creditor  files  petition,  when,  067. 

again.st  joint  debtors  returned  unsatisfied,  creditor  proceeds,  how,  009. 
instituted  and  tried,  where,  677. 
judgment  debtor  examined,  071. 
order  of  court  as  to  satisfaction  of  judgment  in.  078. 
property  of  judgment  ilebtor :  ordered  sold,  when,  078. 

transfer  of,  prohibited  by  court,  073. 
receiver  of  judgment  debtor;  appointed,  when,  079. 
not  more  than  one  appointed,  679. 

appointment  of,  recorded  in  what  comities,  080.  681. 

duties  of,  082. 
referee  appointed,  when,  683. 
venue  of,  077. 

when  can  be  begun.  007-069. 
witnesses;  examined  by  either  jiarty.  070. 

not  privileged,  672. 
Rev.  Vol.  1—83  .  1377 


INDEX. 

SUPIiEME  COURT:     See  Court,  Supreme. 

StTI'REME  COUKT  LIBRARY:     See  A'olume  11. 

fees  from  licensing  attorneys  go  to  support  of,  208. 

SUPREME  COURT  REPORTER : 

compensation  of.  2771. 


actions  against:  barred,  when,  302,  3!).''>   (G,  7). 

on  forfeited  recognizance,  3217-3210,  3223-3225. 
appeal  bond;  jnstiflcation  of,  504. 

bail  may  plead  in  exoneration  any  defense  principal  iiiiglit.  3220. 
bonding  companies  may  become,  when,  272,  273. 
bunds ;  liability  of,  on,  etc.     See  Bonds. 
companies.     See  Surety  Companies, 
contracts  of  suretjship  must  be  written,  974. 
co-surety  liable  to  contribution,  2844. 

county  commissioner  liable  as,  on  county  officer's  bond.  when.  31."!. 
comity  officers'  bonds :  justification  of,  310. 
discharged  by  negligence  of  creditor,  when,  2S4G-2848. 
execution ;  uuist  show  suretyshijj,  when,  2840. 

principal's  property  executed  before  surety's,  2841. 
.iudgment  should  show  who  is,  2840. 
jury  must  show  suretyship  in  verdict,  when.  2840. 
liable  on  guardian  bond  after  guardian  resigns.  1770. 
notice  by,  to  creditor  to  collect  from  principal,  284r).  2848. 

penalty  for  delay  of  creditor.  284G. 
l)rincipars  property  exhausted  before  surety's,  2841. 
released  how ;  \^hen  surety  company,  274. 

from  bond  of  guardian,  1783,  1704. 

personal  representative,  37. 
sheriff's  sureties  may  collect  taxes,  when,  2808. 
stay  of  exectition  dissented  to  by :  effect,  2845. 
subrogated  to  rights  of  creditor,  when.  2843. 
summary  remedy  of  surety  against  principal,  2842. 
surrender  of  prisoner  by,  in  arrest  and  bail.  7.52,  7.53. 
undertakings  in  attachment,  .iustification  of,  763,  788. 
who  can  not  be,  on  official  bond,  315. 

STTRETY  COMPANIES:     See  Volume  II. 

ai-i'opted  as  sm'ety  on  bonds,  etc.,  272,  273. 
(■st(i|iiicd  to  iilead  ultra  vires,  when,  275. 
forfeits  rights  to  do  business,  when,  275. 
released  from  suretyship,  when.  274. 

SURPRISE: 

judgmeut,  order,  etc.,  set  aside  for,  when,  513. 

SURVEYOR : 

chain  of ;  must  be  sealed  by  standard-keeiier,  3075-.3077,  3084. 
penalty  for  failing  to  have  sealetl,  3084. 
standard  measm-e  for ;  what  Is,  3075. 
counly.     See  County  Surveyor, 
failing  to  test  chain;  misdemeanor,  .3084. 

needle ;  misdemeanor,  374.3. 
needle  of,  must  be  tested  by  meridian  monument,  how,  3070,  3077.  374.' 
test  must  be  registered  by  register  of  deeds.  3078. 
time  tested  must  be  entered  on  surveys,  :!070. 


INDEX. 

SURVEYS : 

certificate  of,  registered  with  grant,  when,  2662,  2G63. 

county  commissioners  have  power  to  order:  of  county,  1318  (7). 

of  oyster  grounds,  2374. 
entries  of  land  surveyed,  1713-1721.     See  Grants. 

errors  iu  survey  corrected,  how,  1738,  1739. 
evidenced,  how,  1596. 
party  owning  contiguous  tracts  may  have  all  contained  in  one  boundary 

by ;  sun'ey  must  be  registered,  150ij. 
record  of  survey  evidence,  when,  2663. 
superior  court  may  order,  when  land  boundaries  in  disinite,  1.504. 

SWAMP  LANDS: 
defined,  1695. 
granted  by  state,  when,  1694. 

TALESMEN :    See  Jury. 

TAVERN-KEEPER:     See  Innkeeper. 

TAX:     See  County  Revenue;  Municipal  Corporations;  also  Volume  II. 
act  providing  for  collection  of;  construed,  how,  2849,  2850,  2851. 

in  force,  wlien,  2849. 
acts  of  de  facto  ottieers  in  collection  of,  deemed  valid,  when,  2897. 
action  against  commissioners :  for  releasing  taxpayer  of,  2854. 
for  recovery  of  tax  illegally  collected,  2855. 
recovery  of  laud  sold  for  taxes,  2909. 

condition  precedent  to  bringing  action,  2909. 
evidence  in,  2896,  2897,  2909. 
statute  of  limitations  bars,  when,  395,  2909. 
association  failing  to  list  stock  of  resident  stockholder ;  misdemeanor,  3328. 
bonds  subscribed  to  railroad ;  tax  to  pay,  collected  how,  2562. 
certificate  of  sale  for,  given  to  purchaser  of  land,  2899-2901. 
evidence  of  what,  2902. 

transferred  by  county  or  municipal  corporation,  2901. 
collection  of,  when,  2852,  2867,  2869. 

attendance  in  the  various  townships  for,  2870. 

claim  and  delivery  can  not  interfere  with,  2855. 

corporation  jiroperty  sold  for,  without  receiver,  1230.  1237,  2879. 

garnishment  for,  2880. 

license  taxes ;  sale  to  collect,  2876. 

delinquents  prosecuted,  2877. 
restrained,  when,  821,  2855. 
sales ;  fees  of  sheriff  for  making,  2883,  2903. 
of  personalty,  2885. 

before  any  realty  sold,  2884. 
what  sub.iect  to  sale,  2886. 
of  realty,  2887. 

advertisement  of,  2890. 
how,  where  and  when  made,  2888,  2891. 
land  released  from,  how,  2913,  2914. 
notice  to  delinquent,  2889. 

not  invalidated  by  certain  irregularities,  2894.  2895,  2896. 
sheriff  gives  certificate  of  sale  to  purchaser,  2899-2901. 
void,  when,  2894. 
sureties  of  sheriff  collect,  when,  2868. 

taxpayer;  having  property  elsewhere,  how  collection  enforced,  2871. 
removed  to  another  county,  how  collection  enforced.  2872-2875. 
time  within  which,  must  be  made,  2869,  1318  (25),  1319. 
corporation  (private)  :  collected,  how,  from.  1236.  1237,  2879. 

officer  of,  not  turning  moneys  over  to  sheriff  to  pay  tax  ;  uiis<leineanor, 
3786. 

1379 


INDEX. 

TAX — continued: 

county  coniiuissioners ;  levy  county  tax,  1318  (25). 

can  not  release  from  paying  tax.  2854. 

liable  for  county  tax.  when,  2814. 

uiiiy  exempt  from  poll  tax,  when,  1318. 

transfer  certificate  of  sale,  2901. 
county  ;  reimbursed  for  money  refunded  for  state,  2010. 

foreclosuie  by  ;  of  lien  for  tax,  2912. 
deeds  for  land  for,  950,  2903-2909,  291  (i. 

affidavit  of  purchaser  before  receiving,  2904. 

evidence  of  what.  2909,  Him. 

form  of,  200G,  2907. 

municipal  cor])oration  entitled  to.  when,  2910. 

notice  to  delinquent  by  purchaser,  before  entitled  to,  2903. 

registration  of.  2908. 

who  makes,  2905. 
due,  when,  2852. 

embezzlement  of,  by  officer;  felony,  3410. 
exemption  :  from  poll,  by  county  commissioners,  1318. 

of  municipal  bonds  from  taxation,  2976. 
fiduciaries  must  pay  ;  penalty  for  failure,  2802. 
foreclosure  by  purchaser  at  tax  sale,  2912. 
indorsement  of  tax  list  by  commissioners ;  effect,  285C. 
infant's  land  not  sold  for,  2801. 
judicial  sales ;  tax  on  property  must  be  paid,  2857. 
license  tax  ;  collected  how.  2876. 

delinquent  prosecuted  for  failing  to  pay,  2877,  3787. 
lien  of,  ou  personal  jiroperty,  when,  2803. 
railroad  property,  when,  2805. 
real  estate,  when,  2804. 

foreclosure  of,  parties  to,  2860. 
lienor  may  pay,  and  retain  lion  of,  285S. 
life  tenant  failing  to  pay  :  forfeits  estate,  2859. 

liable  in  damages,  28.59. 
list;  indorsed  liow,  by  commissioners,  2856. 

effect  of  indorsement,  28.56. 

register  of  deeds  makes  out.  2068. 
fee  for  making  out,  2776. 
levied  for  county  purposes,  how,  1318  (25). 
mortgage  sales;  tax  on  property  must  be  paid,  2857. 
oyster  grounds  subject  to  taxation,  when,  2380. 
oystermen  pay  purchase  tax,  when,  2410. 
payable  in  what.  2853. 

powers  of  county  and  town  commissioners  as  to  refunding,  etc..  28.54. 
purchaser  of  land  at  sale  for:  entitled  to  deed.  2004. 

action  by.  to  recover  land,  brought  when,  .S05,  2909. 

lien  of,  on  land  sold,  for  what  amount,  2911. 
foreclosure  of  lien.  2912. 

reimbursed  when  sale  made  by  mistake,  2910. 
railroads  never  exempt  from  taxation,  when,  2.574. 
redemption  of  land  sold  for.  2913. 

to  whose  benefit  ledemption  inures,  2014. 
release  of;  no  jiower  for.  in  county  or  town  commissioners,  2854. 
sales  of  property  for.     See  under  this  head.  Collection  of,  etc. 
settlement  by  sheriff,  of  county  tax,  1376,  1380,  2812. 

of  state  tax.  2869,  2882. 
sheriff:  duties  of.  as  to  collecting.     See  under  this  head,  (Collection,  etc. 

cancels  void  sales  and  deeds,  when.  2.S9S. 

failing  to  attend  sale,  or  wrongfully  selling,  etc.;  misdemeanor.  3790. 
give  tax  receipt  (o  person  paying,  etc.;  misdemeanor,  3402. 
snriendcr  tax  lisls  upon  deinand,  etc.;  misdemeanor,  3788. 

1380 


INDEX. 

TAX — cmxtinued : 

sberill — continued. 

liability  of,  vvlien  land  sold  by  mistake,  2910. 
must  publish  delinquent  list  of  taxpayers,  2826. 

falling  to  publish :  misdemeanor,  35S7. 
prosecutes  delinqueuts,  when,  2S77. 

not  liable  for  pro.secution  in  good  faith,  2878. 
sales  book  of  land  sold  kept  by,  2892. 

copy  tiled  with  register  of  deeds,  2892. 

evidence  of  regularity  of  sale,  2892,  2893. 
sureties  of  .sheriff  collect,  when  ;  liabilities,  2S(iS. 
taxpayer;  action  of,  for  taxes  illegally  paid,  2855. 
can  not  reijlevy  property  taken  for,  2855. 
delinquent  list  of  taxpayers  published,  282C,  3587. 
duty  of,  to  point  out  personal  property  to  sell  for,  2884. 
removed,  duty  of  sheriff,  2872-2875. 
tenant  in  common :  may  pay  his  share  of,  2860. 
may  redeem  his  share,  2860. 

remedies  of,  for  expenditures  exceeding  his  share,  2860. 
town  taxes,  2924,  2968-2974.     See  Municipal  Corporations, 
limitation  on  amount  of,  2977. 

TAX  COMMISSIONERS :     See  State  Tax  Commissioners. 

TELEGRAPH  AND  TELEPHONE  COMPANIES:       

corporation  commission's  duty  and  power  to  investigate,  1064,  1066-1071. 
easement,  acquired,  how  :  in  right  of  way,  1572,  1573,  2575. 

gi'auted,  over  public  highways,  1571. 
felling  trees  so  they  fall  upon  wire;  misdemeanor,  3849. 
otflcers,  etc.,  of,  failing  to  make  reports  required;  misdemeanor,  1089. 
penalty  for  refusing  to  obey  orders  of  coiTJoration  commission,  1087.  . 
person  injuring,  etc..  fixtures  of ;  misdemeanor.  3845.  3847. 
rates  of,  for  transmitting  messages,  regulated  by  commission,  1096. 

subject  to  change  by  corporation  conmilssion,  1106. 
message ;  operator,  clerk,  etc..  divulging  contents ;  misdemeanor,  3846,  3848. 
person  wrongfully  learning  contents ;  misdemeanor,  3846,  3848. 

TENANT  BY  CURTESY  :     See  Curtesy,  Tenant  by  the. 

TENANT  FOR  LIFE : 

corporate  stock  held  by,  voted  on,  how,  1186. 

estate  for  life,  not  devised,  an  estate  of  inheritance,  1556   (11). 

expectancy  of,  as  to  mortality,  1626. 

failing  to  pay  taxes,  forfeits  estate.  2859. 

grantee  of  reversion  has  what  remedies  against,  1585,  1989,  2859. 

liable  for  waste.  854.  8.55. 

not  liable  for  accidental  damage  to  reversion,  1991. 

remainderman  liable  for  betterments,  when.  659. 

remedies  of,  against  grantee  of  reversion,  659,  1586,  19S9. 

value  of  estate  of,  1626. 

warrants  by,  good  only  as  to  heir,  1587. 

TENANT  FOR  YEARS:     See  Landlord  and  Tenant. 

estate  terminated  by  uncertain  event:  effect  of,  1990. 

grantee  of  reversion  has  what  remedies  against.  1585,  1989. 

liable  for  waste,  854.  8.5.5. 

not  liable  for  accidental  damage.  1991. 

remedies  of,  against  grantee  of  reversion.  158.5,  1089. 

term  of,  suspended  during  action  for  timber  trees,  808. 


INDEX. 

TENANT  IN  COMMON : 
liable  for  waste,  850. 

liuiitations,  statute  of.  barring  one,  does  not  bar  all,  374. 
may  pay  his  part  of  tax  or  entire  tax,  2860. 

remedy  for  expenditures  in  redeeming  joint  property,  etc.,  2800. 
l)artition  of  estate  held  in  t-omnion.  2485-2520. 

TENANT  IN  TAIL: 

estate  of,  converted  into  a  fee,  1578. 

TERM  OF  COURT : 

superior  court  convenes  in  the  different  counties,  when,  1506. 
special  terms  held  how,  1511,  1512.     See  Courts,  Superior, 
supreme  coiu-t  convenes  when,  1535,  153(5.     See  Court,  Supreme, 
term  expiring  during  certain  trials,  court  continues,  320(5. 

TERRAPIN,  DIAMOND-BACK  : 
close  season  for  catching,  2370. 
nonresident  can  not  use  dragnets  in  catching.  2309. 

TESTIMONY  :     See  Evidence  ;  Witnesses. 

TICKET  BROKER: 

dealing  in  railroad  tickets  when  not  authorized  agent ;  misdonieanor.  .'!7i>4. 

TIMBER : 

lands ;  cartways  to,  established,  how,  2(580. 

guardian  may  sell  timber  from  ward's,  1790. 

owner's  remedy  for  timber  taken  for  roads,  2719,  2728. 

trial  of  title  to,  808. 
trademark  ;  adopted  by  whom  and  how,  3023,  3024. 

altering  any,  upon  logs,  timber,  etc. ;  misdemeanor.  .^855. 

branding  with,  effect  of,  3026. 

evidence  of  o\^niership,  3027. 

larceny  of  timber  with,  misdemeanor,  3853,  3855. 

person  adopting,  has  property  in.  3025. 

taking  possession  of  timber  with  another's ;  misdemeanor,  3856. 

using,  of  another,  without  consent ;  misdemeanor,  3854. 
trees;  action  of  tresjiass  for  cutting,  808. 

cutting;  allowed  jiending  action  to  tiy  title,  when,  809. 
not  allowed,  when,  807,  808. 
on  land  after  entry  and  before  grant  issued;  misdemeanor,  3741. 

in.1uring  or  removing,  etc.,  another's ;  misdemeanor,  3687. 

larceny  of,  3511,  38.53,  3855. 

solvent  defendant  restrained  from  cutting,  807. 

tenant  destroying,  in  any  wa.v :  misdemeanor.  3686. 

tenant  for  years  not  affor-ted  by  action  over.  808. 

TIME : 

appeal  taken  within  what,  .500,  1491. 
from  clerk.  Oil. 

findings  of  .indgo  within  what,  .542. 
order  in  special  proceedings  within  what,  .58.8. 
conipute<l.  how,  887.  8,S8,  2310,  2.^43.  2(!32.  2,S.3n. 

not  <-()nntod,  when.  362-.3(;o.  308.  3(;!1,  379,  808. 
contested  election  :  com]iIaint  served  within  what.  834. 
cori)orate  meetings  called  to  consider  dissolution,  119.5. 
corporate  receiver  allowing  claims,  exc(M'li<>ns  filed,  when,  1230. 
coriJOrMtions  have,  in  wliicli  to  close  u]i  tlioir  affairs,  1'200. 
defendant  sunnnoned  in  sjiecial  ]irocee<ling,  712. 

1382 


INDEX. 

TIME— continued: 

druwee  has  what,  in  which  to  accept  bill  of  exchange,  2:i.S(i. 

execution  issued  in  six  weeks  after  judgment,  018. 

filing  pleadings.     See  Answer ;  Complaint;  Demurrer;  Petition:  Iteply. 

time  for,  enlarged,  716. 
grants ;  time  for  registration  extended,  1747. 

maturity  of  instrument ;  presentment  for  payment  in  what  time,  2220. 
"month"  defined,  2831  (3,  12). 

notice  of  motion  to  dismiss  appeal  for  irregular  undertaking,  .590. 
personal  representative  must  perform  acts  within  reasonable,  100. 
pleadings  tiled  within  what  time.     See  Pleadings, 
protest  of  bill  or  check  made,  when,  2305. 
reasonable ;  what  is,  with  respect  to  negotiable  instruments,  2343. 

with  resjiect  to  transporting  freight,  2(i32. 
registration  of  instruments  made  within  what,  1747,  20.i8. 
report  of  commissioners  and  jurors,  filed,  when,  723. 
right  of  action  barred,  when.     See  Limitations,  Statute  of. 
sales  :  time  of.     See  Sales. 

siuumons  must  be  served  when,  in  attachment  proceedings,  702.  770. 
taxes  collected  within  what,  2869. 
"year"  defined,  2831   (3,  4). 

TITLE:     See  Color  of  Title;  Cloud  upon  Title:  Estates. 

TOBACCO  WAREHOUSE:     See  Warehousemen. 

TOLL  :     See  Bridges ;  Ferries ;  Mills. 

TORT:     See  As.sault;  Damages;  Fraud:  Negligence:  Trosjiass. 
action  for  ;  barred,  when.  .39."). 

will  not  abate  by  death  after  verdict,  41.5. 

wrongful  death.  59,  00. 
conveyances  of  corporation  property  void  as  to.  of  company.  1130. 
wife's:  luisband  j<iintly  liable  for,  2105. 

TOW.XS  .\XD  CITIES  :     See  Mimicipal  Coriwrations. 

TOW.N'SIIIPS: 

corporate  powers  granted  to,  only  by  general  assembly.  i:!l.S  (30). 
county  divided  into,  by  county  commissioners.  1318  (7). 
erected  or  altered,  how,  1318  (30),  1319. 

TRADE.\IARKS  : 

action  for  damages  for  unlawful  use  of,  3021. 

adopted  by  whom,  3023. 

any  person  may  adopt,  3012. 

copies  of.  and  certificate,  furnished  liy  secretary  of  state,  riol."). 

counterfeit:  use  of,  unlawfully,  3019. 

destroyed  by  officers,  3021. 
evidenced  by  copy  and  certificate.  .301.5. 
forgei-y  or  counterfeit  of ;  misdemeanor.  3850.  38.52. 
license  to  use.  may  be  granted.  3020. 
live  stock  branded.  .3028. 

penalty,  additional,  for  violating  law  as  to,  .3022. 
person  ini|)ressing  sack  with  another's  brand;  niisdiMucancr.  .'^.51. 
]iropert.v  in.  iirotected  by  tiling  for  registry,  3013. 
registration  of;  by  secretary  of  state,  3015. 

fees  for.  :V)\4.  :!015. 

filing  for ;  affidavit  accompanying,  .3014. 

fraudulently  seciu'ing:  ponalt.v.  3018. 

protects  iu-op<'r1y  in.  .■iOi:;. 

1383 


INDEX. 

TRADEMARKS — continued: 

secretary  of  state :  duty  of,  to  register,  when,  3015. 

fees  of.  for  registering  and  copies,  etc.,  3014,  3015. 
siniilaritj'  to  another  tradeniarlj  not  allowed,  3017. 
timber  brands,  etc.,  3023-3027.     See  Timber, 
transfer  of,  how  made ;  fees  for,  3016. 

TRAINED  NURSE  :     See  Registered  Nurse ;  also  Volume  II. 

TRAINS:     See  Railroads. 

TRAMPS :    See  Vagi-ants. 

TRAMWAYS :     See  Roads. 

TRAVELERS:     See  Innkeepers;  Quarantine;  Railroads. 

TREASON : 

punishment  for,  3437,  3438. 

warrant  or  capias  for,  executed  on  Sunday,  2837. 

TREES :    See  Timber. 

TRESPASS : 

cutting  or  removing  timber  trees,  etc.,  belonging  to  another,  3687. 
cutting  timber  trees  after  entry  and  before  obtaining  a  grant,  3741. 
defendant  in  action  for,  enters  disclaimer  as  to  title :  effect  of,  803. 
going  on  lands  of  another  after  being  forbidden,  guilty  of,  3688. 
hunting  on  lands  of  another  without  permission,  .3480.  3481. 
limitations,  statute  of,  bars  action  for,  when,  305  (3). 
on  lands  by  riding,  or  driving  stock,  etc..  3320.  3321. 
public  grounds  of  state  at  Raleigh,  3745. 
state  lands,  or  of  board  of  education.  3746. 
private  oyster  beds ;  injury  to.  2402. 
real  property;  venue  of  action  for  trespass  on,  410. 
defendant  in  action  disclaiming  title;  etfe<t.  .863. 
statute  of  limitations  bars  action  for  trespass  on.  when,  .305  (3). 
taking  unlawful  possession  of  another's  house  and  refusing  to  surrender, 
3085. 

TRIAL.  CIVIL  ACTION:     See  Courts.  .Tustices' :  Courts,  Superior, 
appeals:  from  corporation  commission  given  priority  in.  in7.">. 
may  be  heard  at  chambers,  1076. 
de  novo,  when  taken  from  county  commissioners.  2600. 
.iustice  of  the  peace,  607. 
arguments  to  jury  controlled  by  court,  216. 
arrests;  facts  in  affidavit  for,  jury  finds,  when.  73.5. 
hill  of  particulars  allowed,  when,  404,  1469. 
by  judge;  procedure,  541. 
burden  of  proof  in.     See  Burden  of  Proof, 
charge  to  jury,  .535-538.     See  Instructions  to  .T\n'y. 
condemnation  proceedings  executed  to  :  jury  trial,  when    2588. 
continuance  of,  how  secured  before  and  at  term.  .530.  .531.  .5.32. 
civil  actions  may  be  tried  at  criminal  terms,  when.  1,507. 
cornoratlon  receiver's  decision  as  to  claim  excepted  to,  jury  trial.  12,30. 
defects  in  pleadings,  etc..  not  regarded  on.  wheir  inuuatrrinl.  509. 
defined.  526. 

demurrer  to  evidence.  .5,30. 
de  novo  on  appeal  from  county  commissioners  as  to  roads.  2600. 

justice,  607. 
depositions  read  at,  1645.     See  Depositions. 

1384 


INDEX. 

TRIAL,  CIVir.  ACTION— C0)( //)!»(■<;.• 
divorce  and  alimony,  1564. 
docket  kept  by  clerk,  915  (3). 
evidence  in.     See  Evidence, 
exceptions;  when  aud,bow  taken,  542,  554. 
*     garnishee  denying  having  property  of,  or  owing  defendant,  781. 
Hinsdale  act  taken  advantage  of  on,  539. 
inquisition  of  lunacy,  1890,  1893. 

instructions  to  jury,  535-538.     See  Instructions  to  Jury, 
issues  on,  544-549.     See  Issues  of  Pact ;  Issues  of  Law. 
justice's  court;  trials  in,  1428-1443,  1457-1478.     See  Courts,  Justices', 
jury ;  selected  and  impanelled.     See  Jury. 

can  be  demanded  to  try  issue  submitted  to  referee,  519. 

verdict  of.     See  Verdict,  Civil  Action. 

waiver  of  trial  by,  540,  1431. 
landlord's  ejectment  of  tenant,  2005. 
new  :  justice's  court  can  not  grant,  1489. 

may  be  granted,  when,  5.">4. 

motion  for,  when  made,  554. 

refusal  of  motion ;  appeal,  587. 
order  in  which  cases  disposed  of,  533. 
place  of,  419-428.     See  Venue,  Civil  Action. 

procedure  before  and  at.     See  Civil  Procedure;  Courts,  Justices', 
production  of  writings  enforced  on,  1657. 
QUO  warranto ;  action  in  nature  of,  when  tried,  833. 
referee ;  trial  by,  518-525.     See  Reference. 

does  not  har  trial  by  jury,  519. 
separate,  where  several  defendants,  when,  534. 
venue  of  action,  419-428.     See  Venue,  Civil  Action, 
verdict  of  jviry.     See  Verdict,  Civil  Action, 
waiver  of,  by  jury,  540,  1431. 
what  term  cause  stands  for,  484. 
when ;  of  issues  of  fact,  528. 
when,  takes  place,  484. 
witnesses  at.     See  Witnesses. 

TRIAL,  CRIMINAL  ACTION:     See  Courts.  Justices':  Criminal  Procedure, 
accused  entitled  to  speedy  trial,  3155. 
arguments  of  counsel  to  jury  controlled  by  court,  216. 
bill  of  particulars  allowed  in,  3244. 
jury  selected;  challenges,  1428-1443.  3263,  3264.     See  Jury. 

competency  of  jurors  decided  by  judge,  3"263. 
justice's  court;  trial   in.  1457-1478.     See  Courts,  .Justices'. 
new  ;  not  allowed  before  justice,  1489. 

granted,  when,  in  sujierior  court.  3272. 
preliminary  hearing  before  justice,  3190-3"206.     See  Preliminary  Hearing 
procedure  before  and  at.     See  Criminal  Procediu'e. 
term  expiring  during  trial,  court  continues,  when,  3266. 
venue  of.     See  Venue.  Criminal  Action, 
verdict  in.     See  Verdict,  Criminal  Action. 

TRUST  DEED : 

assigmuent  by,  for  crediiors,  967-97-3.     See  Assignment  for  Creditors, 
evidence  by  copy.  l.'"i!)S,  1.599.     See  Evidence, 
foreclosui-e  of.     See  Foreclosure  of  Mortgages  and  Trust  Deeds, 
husband's,  to  secure  purchase  money,  good  without  wife  joining.  3085. 
power  of  sale  in:  execution  of.  barred  when,  1044. 

executed  by  personal  representative  of  trustee,  when,  1031. 
sm'vivor  of  two  or  more  trustees,  1033. 
trustee  appointed  liy  clerk,  when,  1037. 

1385 


INDEX. 

TRUST  VEEV—coniiniied: 
probate  of.     See  Probate. 

real  property  subject  of,  must  be  in  writiug.  ".iTii. 
registration  of ;  by  register  of  deeds,  immediately  on  tiling.  l2(i.")8. 

necessary,  to  convey  clear  title,  982. 
released  and  discharged,  how,  104G.  * 

residuary  interest  in;  action  for,  barre<l,  391   (4). 
sales  under.     See  Foreclosure  of  Mortgages  and  Trust  Deeds. 

TRUSTEES : 

account ;  clerk's  fee  for  auditing,  2773. 

appointed  in  deed  of  trust  for  creditors,  violating  duty,  penalty.  3(!8t). 

bond  of;  surety  company  may  give,  273.     See  Honds.  l"i<luciary. 

cost  of,  charged  as  expense.  277. 
claims  against,  may  be  joined  in  one  action,  4(19  (7J. 
corporate  stock  held  by,  voted  on,  how,  1180. 
costs  in  action  by  or  against,  adjudged,  how,  1277. 
discretionary  powers  of,  in  will,  not  restricted  by  chapter  on  .Vdniinistra- 

tiou,  170. 
dying:  before  debt  due,  who  executes  power  of  sale,  1031. 

clerk  ajjpoints  party  to  execute  trust.  1037. 
embezzlement  by,  punished,  3403,  3408. 
executing  trust  by  agent,  validated,  1035. 
final  settlement  of;  clerk's  fee  in,  2773. 

foreclosure  by.     See  Foreclosure  of  Jlortgages  and  1'riist  Dei'cls. 
infants  as,  convey  property,  how.  Iii30. 
of  corporation,  on  dissolution,  1201,  1202. 

county  trust  estate,  1400-1403. 

creditors  in  deed  of  assignment,  9r)7-973. 

decedent's  estate.     See  Administration. 

insolvent  debtors.     See  Insolvent  Debtor. 

naked  trust,  1580. 

religious  societies,  2670-2674.     See  Religious  Societies. 

spendthrift  trusts,  1.588. 

ward's  estate.     See  Guardian, 
personal  representatives  of,  foreclose  trust  deeds,  when,  1032. 
religious  societies  hold  and  transfer  property  by,  2070-2674. 
removed;  clerk  appoints  some  one  to  act,  10.37. 

certain  appointments  before  .Tanuary  1.  1900,  validated.  1037. 
representative  of,  may  renounce  riglits  under  trust  deed;  effect.  103S. 
rights  of.  survive  to  personal  representative  when.  1031. 
survivor  of  two  or  more,  execute  trust,  when,  1033,  1.580. 
stock  in  conwration  held  by,  liability  of  trustoe,  1162. 
sues  in  own  name,  when,  404. 
taxes  on  trust  propert.v  must  be  paid  by.  2862. 

failure  to  pay,  lialile  for  daniag<'s.  2S62. 
title  of,  in  trust  estate,  166.  1.".S0.  2C.7'2. 
trust  funds;  deposited,  trustee  liable  for  loss,  1793. 
invested,  how,  by.  1792. 

TRUST  ESTATE : 

acquired  for  right  of  way  of  railroad,  how.  2.5911. 

county  lieing  cestui  (pic  trust,  county  treasurer  administers,  14iMi  I403. 

decedent's,  in  personalty,  personal  assets.  46. 

funds  of;  deposited  at  trustee's  risk.  1793. 

invested  how.  by  trustee,  1792. 
ordered  jiald  into  court,  pending  litigalion,  S.50. 

seized  by  sheriff,  when.  .S'll. 
sale  of.  under  execution,  629,  6.3(1. 
spendthrift,  authorized.  1.5S.S. 


INDEX. 

TRUSTS  AND  MONOPOLIES : 

violating  law  concerDing;  uiisdemejiuoi-.  3739. 

TUUNriKE  COMPANIES : 

bridges  uuiiutaiued  by,  when,  2700.  2701.    . 

failing  to  maintain,  misdemeanor.  3770. 
eminent  domain,  right  of,  allowed,  2.575. 
incorporation  of.     See  Corporations, 
state  interested  in,  reports  to  board  of  internal  improvements,  3.595. 

failing  to  make  report,  uiisdenieanor.  3.595. 

ULTRA  VIRES: 

coriioration  officers  restrained  from  acts  that  are.  1197. 
surety  company  can  not  plead,  when,  275. 

UNDERTAKINGS:  See  Arrest  and  Bail.  Civil  Action;  Attachment:  Bail. 
Criminal  Action ;  Bond  for  Cost ;  Claim  and  Delivery :  Contested  Elec- 
tions ;  Corporation  Commission ;  Defense  Bond ;  Execution ;  Injimction ; 
Prosecution  Bond ;  Receiver. 

UNDUE  INFLUENCE  : 

private  examination  of  ni.irrietl  woman  procured  by;  effect  of,  9.56. 

UNITED  STATES  BONDS : 

fiduciaries  may  invest  fimds  in.  1792. 

UNITED  STATES  COURTS  : 

judgments  of,  doclceted  in  superior  court,  when,  576. 

UNIVERSITY  OF  NORTH  CAROLINA:     See  Volume  II. 

money  remaining  in  hands  of  personal  representative,  belongs  to,  153. 
proceeds  of  sale  of  unclaimed  freight  go  to,  2639. 

USES: 

conveyance  to ;  possession  transferred  without  livery,  1584. 

USURPATION  OF  OFFICE :     See  Contested  Elections  ;  Quo  Warranto. 

USURY : 

corporation  selling  bonds  below  par  not,  1951. 

costs  never  allowed  party  suing  on  usurious  contract.  1271. 

penalty  for,  1951. 

action  for,  barred,  when,  306. 

VACANT  LANDS : 

churches  erected  on.  title  confirmed  in  religious  societies.  2674. 
grants  of.     See  Grants. 

VACCIN.VTION  :     See  Volume  II. 

violation  of  regulations  regarding;  mi.sdenieanor.  3455. 

VAGRANTS : 

ccunmitted  to  workhouse,  duty  of  sheriff,  1309. 

released,  when,  1371. 
defined  and  punished,  3740. 

tramii:  .going  about  begging,  fined  or  imprisoned.  37."..5. 
discharged  when.  3735. 


INDEX. 

VAGRANTS — continued : 
traaips — continued. 

lierson  causing,  to  be  arrested,  entitled  to  fee,  3738. 
trespassing,  carrying  concealed  weapons,  tlireatening  injury,  etc. ;  mis- 
demeanor, 373(3,  3737. 

VARIANCE : 

between  judgment  and  execution,  what,  not  fatal,  628. 
pleading  and  proof,  515,  510. 

amendment  of  pleading  allowed,  507. 

VENIRE :     See  Jury. 

VENUE,  CIVIL  ACTION: 

cbauge  of;  transcripts  sent  to  court  of  trial,  428. 

when  and  how  allowed,  425-427.     See  Removal  of  Actions, 
coiporation  commission :  hears  petition  of  railroad  as  to  speed  ordinance, 
where,  1101. 
'  appeal  from,  to  superior  court  heard,  where,  1075,  107G. 

divorce  and  alimony ;  action  for,  where  tried,  1559. 
domestic  corporations ;  actions  by  and  against,  422. 
foreign  corjioration ;  action  against,  423. 
grants :  actions  to  vacate,  where  brought,  1748. 
official  bonds;  actions  on,  brought,  where.  421. 
penalty  or  forfeiture,  statutory ;  action  for,  420. 
personal  property ;  action  for  recovery  of,  419. 
public  officer ;  action  against,  420. 
real  property ;  ti'ial  where,  419. 
residence  of  plaintiff  or  defendant  determines,  when.  424. 

VENUE,  CRIMINAL  ACTION; 

accessories  to  crimes,  where  tried,  3287,  3289. 
assault  in  one  county  and  death  in  another,  323.5. 

in  this  state,  death  in  another,  323G. 
beating  one's  way  on  train,  3748. 
bigamy ;  action  for,  3301. 

crime  committed  on  waters  dividing  counties;  where  trial  for,  3234. 
death  in  this  state;  Inunaterlal  as  to  where  assault  committed,  3238. 
embezzlement  by  railroad  oflicers  and  agents,  3403. 

person  coiisiiiring  with  railroad  otiicer  to  embezzle.  .'5404. 
fishing  with  dutch  nets  In  Albemarle,  Crnatan  or  Pamlico  sounds,  2440. 
iniiu'opor,  taken  advantage  of  by  plea  in  abatement,  32.39. 
laid  in  indictment,  3239. 
lariony  and  receiving,  3507. 

lynching;  what  court  has  jurisdiction  over  action,  3233. 
jiorson  in  this  state  injuring  another.  .3237. 
plea  in  abatement  as  to,  sustained,  ease  removed,  32.39. 

not  sustained,  judgment  on  misdemeanors,  trial  for  felonies,  3239. 
presumed  correct  as  l;iid  in  indictment,  32.39. 

until  plea  iii  abatement  filed,  .32;W. 
railroads  dis(  riminating  against  A.  &  N.  C.  R.  R.,  .37.TO. 
receiving  stolen  goods.  .3507. 

VERDICT.  CIVIL  ACTION: 

action  can  not  abate  after,  41.5. 

lM>(l(>rnients  claimed,  jury  arrives  at.  how,  (i.".'i-(;57. 

ch.aractcr  of,  for  different  actions,  551. 

claim  .'ind  delivery.  .551. 

counterclaini  by  defendant,  jury  finds  b.alance  due,  .5.53. 

damages  in  detinue,  .551. 

entry  of,  .554. 

exceptions  to,  554. 

1388 


INDEX. 

VERDICT,  CIVIL  ACTION— con «wi«e(7.- 
filed  wliere,  551. 

genei'al  or  special,  in  discretion,  when,  551. 
general,  defined,  550. 
Inquisition  ol:  lunacy  and  inebrietj',  1890. 
issues  answered  by.     See  Issues  of  Fact, 
jury  assesses  damages,  wiien,  5.53. 

justice's  court,  jury  in.  renders.     See  Courts,  Justices'. 
nonsuit  not  allowed  after,  1520. 
set  aside ;  motion  to,  554. 
special,  defined,  550. 

controls  general,  552. 

referees  report  as,  525. 
suretystiip  must  be  shown  by.  2S40. 
valuation  by  jury  of  dividing  fence,  1600,  KiG". 

VERDICT,  CRIMINAL  ACTION : 

bastardy  proceedings ;  judgment  thereon,  255. 

defendant  convicted  of  assault  iu  trial  for  felony,  when,  3208. 

first  degree  burglary  charged,  jury  may  find,  what.  3209,  3270. 

murder  charged,  jury  may  find,  what,  3208,  3209,  3271. 
justice's  court;  jury  in,  renders.     See  Courts,  .lustices'. 

VERIFICATION: 

account,  itemized,  must  be  verified,  when,  1025. 
pleadings,  488-493,  1503,  1922. 
before  what  oflicer,  492. 
by  agent  or  attorney,  490. 

party,  489,  491.  ^ 

may  be  omitted,  when,  493. 
one  verified,  subsequent  must  be,  488. 

VESSELS  :     See  Crimes  and  Punishments  ;  Fishing ;  Navigation  ;  Oysters. 

VOUCHERS. 

presumptive  evidence  of  disbursement  by  administi-ator,  1(»1,  102. 

WARD :     See  Guardian. 

WAREHOUSEMEN : 

public  storage ;  any  corporation  may  become,  3029. 
bond  of,  3030. 

action  on,  by  any  one  damaged,  3031. 
book  of  accounts  kept  by,  3035. 

open  for  ins])oction,  3035. 
duty  to  insure  stored  property.  3032. 
perishable  or  dangerous  property  sold,  when.  3039. 

proceeds  of  sale  paid  to  clerk.  .3039. 

miable  to  sell,  what  done,  .3040. 
sale  of  i)roi)erty  for  storage  charges,  .3030. 

notice  of ;  served  how,  3030,  3037. 

proceeds  of,  disposed  of,  bow,  3030,  3038. 
storage  receipts;  contain  what,  3032. 

negotiable  when,  3032,  30,33. 

non-negotiable  when,  3032. 

where  goods  are  nii.ved  with  others,  3034. 
storer  liable  for  charges,  .3041. 
title  to  stored  goods  passes  with  receipt,  .3033. 

effect  of  receipt  when  goods  mixed,  3034. 
unlawfully  disposing  of  goods  stored  with,  misdemeanor.  .3831. 

1.389 


INDEX. 


WAREHOUSEMEN— <0)i^»iuc(?.- 

tobacco;  charges  of,  maxinnim  fixed,  3042. 
bill  of  charges  rendered  seller,  3044. 

failing  to  render  bill ;  iienalty,  3044. 
weighers  for,  sworn,  3043. 
oath  ;  form  of,  3043. 

WAItEIIOUSES : 

Imrning  of,  wilfully  and  maliciously,  3338. 
unlawfully  disposing  of  goods  stored  in  pulilic 


niisdeniennor.  3831. 


WARRANTIES: 

collateral  and  other,  abolished  ;  deemed  covenants  only.  1587. 

WARRANTS :      See    Arrest,    Criminal    Action ;    Courts,    .Tustices' :    Cr 
Procedure, 
arrest  without,  when,  3170-3178. 
attachment.     See  Attachment. 

complaint  made  and  examination  upon  oath  before  issuance  of,  3157 
bastardy,  served  out  of  county,  256.     See  Bastardy  Proceedings, 
form  of,  3158. 

fugitives  from  justice  from  another  state ;  issued  by  whom,  3184. 
indorsed,  how,  3160. 
issued ;  at  any  time  and  returnable,  when,  3148. 

by  whom,  for  apprehension  of  criminal.  3156. 
justice  indorsing,  not  liable  to  action,  3161. 
officer  must  serve,  when  addressed  to  him,  3HiO. 
peace,  3165-3175.     See  Peace  Warrant, 
retiu-nable  before  whom,  3162. 
runs  where;  if  issued  by  justice  or  mayor.  3159. 

if  issued  by  superior  or  criminal  court.  3159. 
search,  3163,  3164,  3.557.     See  Search  Warrant, 
when  to  issue,  3158. 
who  may  issue,  3156. 

WASTE : 

action  for :  against  guardian,  854. 

against  tenants  for  life  or  years,  854.  8.55. 

brought  as  other  actions,  853. 

by  heirs,  857. 

judgment  in,  853,  858. 

tenant's  against  cotenaut,  856. 
personal  representatives  liable  for,  167. 
remediable,  how,  853. 

WATER  COMPANIES : 

analyses  of  water:  duties  as  to,  3054-3057. 
eminent  domain,  right  of,  granted  to,  2.57.5,  3060. 
failing  to  inspect  water  supply;  penalty,  .3047. 
must  take  precautions  as  to  purity  of  water.  .30,58. 
ta.\  against,  to  support  laboratory  of  h.vgiene.  .3057. 
water  supply  of.     See  Water  Supply. 


3158. 


WATERCOURSES:     See  Bridges;  Ferries;  Navigation 
and  C'reeks  ;  Water  Companies  ;  Water  Supply. 

WATER  SUPPLY,  PUBLIC ; 

analyses  of;  to  be  made,  3054. 

state  board  of  health  makes;  fee,  30.55. 
contamination  of,  g\iarded  against,  ,3058. 

1390 


Obstructing:  Rivers 


INDEX. 

WATER  SUPl'LY,  PVBhlC—contimied.: 

mayor's  jurisdiction  to  enforce  regulations  concerning,  3059. 
public  institutious  of  state  may  operate  waterworks,  3061,  3062. 
sewage  must  not  be  discharged  in,  3051. 
punishment  for  so  discharging,  3S5S. 
state  board  of  health  ;  duties  of,  as  to,  3054,  3057. 
water  company  owning  public ;  duties,  etc.     See  Water  Companies, 
watershed  of ;  bui-j'ing  grounds  on,  prohibited,  3053. 
depositing  dead  body  on;  misdemeanor,  3802. 

human  excreta  on ;  misdemeanor,  3857. 
failure  to  provide  tub  system  for  human  excreta  :  misdemeanor,  3800. 
inspection  of,  required ;  how  done,  3045,  3048,  3050. 
failing  to  make  inspection;  misdemeanor,  3801. 
rivers  and  creeks  inspected  fifteen  miles,  3040. 
state  board  of  health  may  make,  30.56. 
insiiectors  may  enter  upon  premises,  30.50. 
residents  on,  must  obey  insti'uetions,  3049. 
tub  system  for  human  excreta  must  be  provided.  .3052.  3860. 

WATTS  LAW  :     See  Liquors. 

WEIGHTS  AND  MEASURES; 
acre  of  land  defined,  3005. 
bushel  defined,  3000. 

penalty  for  taking  greater  quantity  than  allowed,  .3066.     -  - 
buyers  and  sellers  must  use  standard ;  proviso,  3003. 
county  commissioners  provide  county  with  standard.  1318  (16),  3064. 

cost  paid  by  county,  3070. 
established  by  congress  of  United  States,  3003. 
inspection  of,  by  standard-keeper,  3073. 

magnetic  needle  of  surveyor's  compass  tested,  3076-3078,  3743. 
meridian  monument  protected  by  county  commissioners,  3079. 
oyster  measures  i)rescribed,  2417. 

using  other  than  ;  penalty,  2.390. 
penalty ;  for  lasing,  untested,  after  notice,  3067. 

for  not  using  standard  weights  and  measures,  3060,  3007. 
standard  keeper ;  duties  of.  etc.     See  Standard  Keeper, 
surveyor's  chain  defined,  3075. 

tested,  when,  3075-3078. 

not  testing ;  misdemeanor,  3684. 
toll  dishes  used  by  millers.  2121. 
traders ;  must  use  standard ;  proviso.  3063. 

penalty  for  not  using,  2399,  3066,  3067. 

must  permit  inspection  of.  3073. 

penalty  for  not  permitting  inspection,  3073. 

WHARVES: 

grant  of  land  and  water  bottoms  for.  1696. 

owner  of  granted  land  for,  may  establish  fisherj-.  1097. 

WIDOWS: 

dissent  fnmi  will,  how  and  when,  3080. 

effect  of  dissent,  3081. 
dower  of,  3083-3090.     See  Dower, 
may  use  crops  until  year's  allowance  assigned,  1. 
not  liable  for  debts  of  deceased  husband.  3082. 
when,  take  as  heirs,  15.56  (8). 
year's  allowance  of.  .3091-3110.     See  Widow's  Tear's  .\lIowance. 


INDEX. 

WIDOW'S  YE.\JR'S  ALLOWANCE  : 

a  credit  to  personal  representative,  3102. 
action  lor,  barred,  when,  397. 
assigned  from  what,  3095. 

assignment  of;  at  instance  of  representative  or  justice.  3090-3102. 
appeal  from,  to  superior  court,  3100. 

liow  lieard  and  decided,  3101. 
appraisal  by  justice  and  two  jurors,  3097,  3098. 

oath  of,  2300. 
effect  of,  3103. 
list  of  articles  assigned  made  in  triiilicate,  3099. 

to  whom  lists  given,  3099. 
procedure,  3098. 
when,  3090,  3098. 
by  superior  court,  when  increase  desired,  3104-3110. 
commissioners  :  assign  and  report,  3108. 

oath  of,  2360. 
complaint,  3100. 

judgment  that  increase  allowed,  3107. 
order  for  jury  to  assign.  3107. 
parties  to  proceeding,  3105. 
report  of  commissioners,  3108. 
confirmed,  3110. 

exceptions  to,  heard  as  special  proceeding,  3109. 
execution.  3110. 
summons,  3105. 
consists  of  what,  3095,  3090,  3098. 
crops  used  by  family  pending  assignment  of,  1. 
family  of  widow  defined,  3093. 
forfeited  by  adultery,  S,  2110. 
divorce,  2109. 

felonious  slaying  of  husband,  7. 
justice  of  the  peace  may  assign,  3096. 
value  of,  3092,  3093,  309(!.  3097,  3103,  3107,  3108. 
when  allowance  in  full,  3103. 
who  entitled  to,  3091. 
widow  may  apply  to  superior  court,  3104. 

WILLS : 

administrator  cum  testamento  annexe  ;  duties  and  powers  of.     See  Admln- 
.  istration ;  Administrator  Cum  Testamento  Annexo. 
after-born  child  :  effect  of,  on.  138-143.     See  After-born  Child, 
annuity  bequeathed  in  ;  cash  value  of,  1027. 
authenticated,  where  proven  in  another  state,  1010,  31.30,  3133. 
bequest  in.     See  under  this  head.  Legatee,  etc. 
caveat  of ;  filed,  when  and  how,  3135. 

bond  of  caveator,  3136. 

others  than  devisees,  etc.,  3136. 

cause  transferred  to  superior  court,  when.  31.30. 

citation  to  devisees,  etc.,  3136. 

filing  of,  suspends  jiroceedings  under  will :  cxcoplions.  31.37. 

judgment  for  costs  in.  12ii8  (2). 
clerk's  office  destroyed,  how  will  pi-obated  anew,  :V29. 
construction  of.  3138-3146. 

contingent  limitations  construed,  how,  1581. 

conveyance  of  land  by  will  effectual,  when,  3133.  3139. 
effectual  from  death  of  testator.  3141. 

devise  presumed  in  fee  simple:  exception,  31.38. 

devises  lapsed  or  void  go  to  residuary  devisee.  3142. 

general  gift  in  a  will  includes  what.  3143. 


i 


INDEX. 

WILLS — continued: 

construction — continued. 

gifts  to  cliildren  dying  pass  to  issue,  31-14. 

"laud"  does  not  embrace  crops,  47. 

what  property  passes  by  will,  3140. 
conveyances  of  land,  when,  3133,  3139. 
cross-index  of;  kept  by  clerk,  915  (17). 
defined  in  construing  laws  concerning,  2831  (9). 
destroyed ;  contents  pro\en,  how,  329,  331. 
devisee  in ;  after-boni  child  deemed,  when,  142. 

conveyance  fay,  \\ithin  two  years  of  letters  granted ;  effect,  70. 

devise  of.  abates,  when.  138.  140,  141,  143. 

dying  before  testator,  devise  goes  to  residuary  devisee,  3142. 

entitled  to  contribution,  when,  80. 

liable  for  debts  of  testator,  52-58. 

loses  devise  if  a  witness  to  will,  3120. 

may  appeal  from  widow's  year's  allowance,  3100,  3109. 

may  apply  for  dower  for  widow,  3088. 

party  to  proceeding  to  sell  land  for  assets,  74. 

religious  society  as ;  title  vests  in  trustees,  2072. 

witness  to  pro\e  contents  of  will,  when,  331. 
devises  void  or  lajised,  go  to  residuary  devisee,  3142. 
dissent  from,  how  and  when,  3080. 

effect  of,  3081. 
entry  of  land  conveyed  by  will,  1730. 

evidenced  by  copy,  when,  1003,  1007.  1008,  1009,  3130,  3133.     See  Evidence, 
execution  of;  3111-3114. 

appointments  executed,  how.  3114. 

how,  3113. 

requisites  of,  3113. 

who  capable  of,  3111,  .3112. 
executor;  duties  and  liabilities  generally.     See  Administration;  Executor. 

dying  or  removed,  effect  on  land  devised  to  be  sold.  82. 
executors  and  devisees  :  powers  not  affected  by  chaiiter  Administration,  170. 
filed  in  clerk's  office,  3129. 
general  gift  in,  includes  what,  3143. 
holograph;  how  probated,  3127  (2). 
husband's  curtesy  barred  by  wife's  will,  when,  2102. 
legatee  in ;  after-born  child  deemed,  when,  142. 

legacy  of;  abates,  when,  139,  141,  143. 

action  for,  when  may  be  brought,  144. 
ordered  paid  within  two  years,  when,  151,  155. 

liable  for  debts  of  testator,  52-58. 

loses  legacy  if  an  attesting  witness.  3120. 

may  appeal  from  widow's  year'.s  allowance,  3109. 
made  by  nonresidents ;  rer|uisites  to  convey  real  estate,  3133. 
married  woman  may  make,  '2093.  2098,  3112. 
must  be  observed  by  administrator  c.  t.  a.,  3140. 
nuncupative:  how  proliated.  3127   (3). 
oath  of  witness  to  jirove,  2300. 

probate  of:  ai)plication  for.  b.v  whom  made,  3122.  3123. 
adidavit  of  applicant,  3125. 

clerk  :  jurisdiction  of,  over,  10. 

must  take  proof  and  examination  in  writing.  3120. 
office  of.  destroyed,  cojiy  of  will  probated.  329. 

conclusive  as  to  what,  3128,  3139. 

delayed,  collector  ap]iointed.  22. 

of  nonresidents.  1019,  3133. 

Iiroccdure  for,  in  case  of  hologr.-iiib  will.  3127   (2>. 
nuncupative  will.  3127  (3). 
written  will  attested.  3127  (1). 

Kev.  Vol.  1—84  1303 


INDEX. 

WILLS — cfiiitin  lied  : 

probate  of — coiitiuutd. 

Ijro<Uietioii  of  ^^•ill  for,  compelled,  how,  3124. 

revolves  letters  of  adiuinistration,  when,  37.  • 

time  of  controversy  over,  not  counted,  369. 

validated,  when,  3134. 

where  will  made  out  of  state,  or  witness  nonresident,  3131. 

proven  and  allowed  in  another  state.  1619,  3130,  3133. 
witnesses  reside  in  different  county.  3132. 
property  that  passes  by  will,  1730,  3140. 

recorded  in  Haywood  county,  presumption  as  to  probate,  1614. 
record  of,  liept  by  cleric,  915  (9). 
copy  of,  in  Anson  counts-,  validated.   1615. 
residuary  clause  in,  includes  what,  3142. 
requisites  of,  valid,  3113. 
revocation  of :  how  made  by  testator,  3115. 

by  marriage ;  exceptions,  3116. 

conveyance  after  execution  is  not,  3118. 

never  b.v  i)resumption  of  intention,  3117. 
sjjeaks  as  of  death  of  testator,  3141. 

stolen  or  destroyed,  offender  guilty  of  misdemeanor,  3510. 
trustee  named  in,   dying  or  removed,   clerk   appoints  person   to   execute 

trust,  1037. 
valid  only  after  probate,  3139. 
void  as  to  after-born  child,  when,  3145. 
who  may  make,  2093,  2098,  3111,  3112. 
witnesses  to,  3119-3121. 

competency  of.  3119,  3121. 

dead;  affidavits  admissible  in  issue  of  devisavit  vel  non,  3121. 

WINE: 

manufacture  and  sale  of,  outside  of  towns,  20(>1.    See  Licpiors. 

WITNESSES : 

attendance  of ;  how  pnx'ured,  1639-l(i44.     See  Subpoena. 

failure  to  attend  until  discliarged ;  penalty,  1643. 
procedure  to  enforce  penalty,  1G43. 

proven  before  clerk,  how,  1299. 
attorneys  at  law  not  privileged,  when.  1620. 
certificate  from  clerk  evidence  of  attendance  of,  1299. 
committee  of  legislature;  refusal  to  testify  before;  misdemeanor,  3691. 
competency  of,  1(!28-163S. 

defendant  in  criminal  cases  competent,  1634. 

devisee  and  legatee  to  prove  will,  when,  331. 

executors,  to  prove  estate  in  hand,  when,  16:!2. 

gamblers,  1(537.  1688. 

husband  or  wife  competent,  when,  1634-1636. 

lyncher.s,  1638. 

not  incompetent  because  of  interest  or  crime,  1628. 

parties  to  action  competent,  when,  16.30. 
not  competent,  wlien,  1633. 

person  interested  in  event  of  action.  1629. 

students,  against  lewd  woman,  3353. 

when  one  part.v  to  transaction  dead,  1631. 
conveyances;  witnesses  to.  suhpa>nae<l,  when.  996. 

corporation  commissioners;   powers  of.   to  compel,  to  attend  and   tcstifv, 
1067. 

refusing  to  testify  before;  misdemeanor,  .3691. 
county  coninnssioners'  power  to  subpoena,  and  compel  answer,  1318   (22). 
defendant  in  criminal  action;  competent,  when,  16.34. 

not  compellable  to  testify,  1635. 

1394 


INDEX. 

W 1 TNESSES — coHtinueil : 

deleuduut's,  paid  by  county,  when,  1200. 
deiio>;itiuus  of,  lOio,  1()49-1G.">5.     See  Depositions, 
devi.see  and  legatee  competent  to  prove  will,  when,  331. 
discharged  by  solicitor,  when,  1305. 
examination :  of  defendant  in  criminal  actions,  1634. 
failure  to  testify  must  not  prejudice,  1(534. 

of  parties,  8(i4-S72.     See  Examination  of  Parties, 
exempt  from  arrest  in  civil  cases,  1()44. 

failing  to  testify  before  county  board  of  education;  misdemeanor,  3840. 
fees  of,  12!J6,  1453,  2803.     See  Costs. 

attending  before  grand  jury,  1302. 
referee,  etc.,  1301. 

can  be  demanded,  when,  1298. 

only  two  paid  to  each  material  fact,  1300. 

not  allowed  by  judge,  when,  1306. 

not  paid  unless  certain  requirements  compiled  with,  1306. 
.  paid  in  only  one  case  a  day,  1303. 

state's  witnesses,  iiaid  by  county,  when  1289. 
gamblers  competent,  when,  KiSS. 
grand  jury ;  appearing  before,  entitled  to  fees,  1302. 

names  indorsed  on  presentment,  3241. 
husband  and  wife  as,  1634-1636. 

not  compellable  to  testify  for  or  against  each  other,  1636. 
judgment  debtor  as,  in  proceedings  supplementary  to  execution,  G70. 
habeas  corpus  ad  testificandum  issued,  when  and  by  whom,  1855,  1856. 

after  testifying,   prisoner  remanded,   1801. 

application  for  writ  contains,  what,  1857. 

penalty  on  officer  not  obeying  writ,  1860. 

requisites  to  issuance  of,  1859. 

served,  how  and  by  whom,  18.58. 
interest  in  event  of  action  does  not  exclude,  1629. 
intimidating,  or  attem])ting  to  intimidate;  misdemeanor,  3696. 
justice  binds  over  two  state's,  on  ajipeal  in  criminal  action,  1.304. 
justices'  courts ;  failure  toi  respond  to  subpoena  of.  fined,  1452. 
not  included  in  bill  of  cost,  remedy,  1300. 
oath  of,  2360. 

participants  in  lynching  not  excused  from  testifying,  3"201. 
physicians  and  surgeons  privileged,  1(>21. 

preliminary  hearing :  not  allowed  present  when  prisoner  examined,  3195. 
privileged,  not  privileged,  when,  672,  1620,  1621,  1G88,  2459. 
railroad  officials  subpoenaed  to  bring  papers  to  justice's  court,  14.54. 
receiver  of  corporation  can  compel,  to  testify,  1227. 
refusing  to  enter  into  recognizance,  committed  to  jail,  3232. 
recognized  to  ajipear  at  superior  court,  3'203. 
right  of,  to  recover  against  party  summoning,  1299,  1301. 
security  for  appearance  of,  at  superior  court,  required,  when,  3204.     ' 
state's;  solicitor  directs  two  to  each  material  fact  paid,  1303. 

paid  by  county,  when,  1289. 

what,  and  how  many  paid,  1303. 
state  tax  commissioners'  power  to  subpoena.  1123. 
subpoenaed  to  regular,  must  attend  special,  term  of  court.  1517. 
subpoenas  for,  issued  and  served,  how.     See  Subpoena, 
supplemental  jiroceedings ;  not  privileged  in,  672. 
supreme  court  may  subpcena  ;  compensation,  1547. 
testimony  of.     See  Evidence. 

tickets  destroyed,  how  amount  recovered,  335.    See  Witness  Tickets, 
two  only  to  each  material  fact  allowed  fees,  wlien,  l.'iii.^. 
wills  proven  by.     See  Wills. 
written  instruments;  certain,  proven  otherwise  than  by  attesting,  1604. 


INDEX. 

WITNESS  TICKETS : 

clerk  issues,  upon  witness  proving  atteniliUK-e,  1290. 
destroyed,  amount  recovered,  how,  335. 
fee  of  clerli  for  issuing,  2773. 
filed  with  the  clerk,  13U0. 

WOODS : 

action  for  damages  against  person  burning,  when.  .3341!. 
wagoner  leaving  camplires  burning;  misdemeanor.  33-17. 

WOKDS  AND  PHRASES : 

"adulterated"  means  what,  with  reference  to  food  stuffs,  3444. 

"animal"  and  "dumb  animals"  include  what,  as  to  cruelty  to  animals,  32!)0. 

certain  words  in  tax  laws  mean  what.  2S51. 

"commissioners"  mean  "aldennen,"  when,  2918. 

"court"  in  chapter  on  corjiorations  refers  to  what  judge,  1247. 

"cruelty,"  "tortvu'e,"  "torment"  mean  what  as  to  cruelty  to  animals.  .".290. 

"dealer  in  intoxicating  drinks"  construed,  3524. 

"family"  means  what,  as  to  widow's  year's  allowance,  3003. 

"general''  means  "common."  applied  to  stocli  of  corporation.  1150. 

".judge  of  superior  court"  means  .iudge  riding  district,  1247. 

"month"  means  what  in  statutes  generally,  2831   (3,  12). 

"oath"  means  what  in  construing  statutes,  2831   (5). 

"previously"  used  instead  of  "privatelv"  in  private  examination,  correctoil, 

lOlG. 
"probate"  means  what  as  to  certain  married  woman's  deeds.  KilS. 
"property"  means  what.  2,S31   (6). 

"public  buildings,"  include  "grounds"  around  liuildings.  when,  .■{742. 
"receiver"  means  "trustee."  when.  1222. 
"seal"  means  what,  2831  (8). 

"superior  court"  means  what,  in  -chapter  Corporations.   1247. 
"sworn"  means  what  in  construing  statutes.  2831    (5). 
"year"  means  what  in  <  onstruing  statutes.  2831   (3). 

WRECKS:     See  Volume  11. 

commissioner  of.  violating  trust :  misdemeanor,  35(i3. 

liable  in  damages  to  in.iured  party,  and  forfeits  oftice  35(i3. 
lierson  finding,  failing  to  report  same;  misdemeanor.  3548. 
violating  provisions  of  cliapter  on;   misdemeanor.  3.")(i3. 

WRECK  COMMISSIOXET:  :     See  Volume  II. 
bond  of,  .305.  .308. 
obstructing,  in  discharge  of  duty  ;  misdemeanor.  3."',(i-l. 

YEAR'S  SrrrORT:     See  Widow's  Year's  .VUowance. 


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